United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Austin, TX, Employer 

__________________________________________ 

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Docket No. 14-0594 

Issued: September 4, 2015 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., & Jennifer Raymond, 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 January 16, 2014 appellant filed a timely appeal from the September 24, 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 over the merits of this case. 

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation effective 

October 10, 2013 based on his capacity to earn wages as a construction estimator. 

FACTUAL HISTORY 

OWCP accepted that on May 28, 2008 appellant, then a 33-year-old city carrier, 

sustained a concussion, sprains of his neck, thoracic region, lumbar region, right shoulder and 

upper arm, and contusions of his right knee and lower leg when the postal vehicle he was driving 

 1

 5 U.S.C. §§ 8101-8193. 
2

was hit on the passenger side by another motor vehicle.2

 He stopped work on May 28, 2008 and 

received disability compensation on the daily and periodic rolls. 

In October 2008 OWCP referred appellant to Dr. Clark Race, a Board-certified 

orthopedic surgeon, for a second opinion examination and evaluation regarding his physical 

condition and capacity to work. In a December 2, 2008 report, Dr. Race noted that appellant 

complained of chronic pain and memory problems since the accident. He diagnosed chronic 

pain syndrome post motor vehicle accident with cervical, thoracic and lumbar strains, right knee 

contusion, reactive depression, and chronic pain development. Dr. Race found appellant’s 

prognosis to be guarded because of chronic pain and he recommended that appellant undergo a 

functional capacity evaluation. 

A functional capacity evaluation was performed on December 19, 2008. In a 

supplemental report on December 23, 2008, Dr. Race noted that the functional capacity 

evaluators recommended that appellant avoid lifting, carrying, pushing, or pulling more than 20 

pounds, avoid bending, lifting, or working from floor level. The evaluation also suggested that 

appellant avoid repetitive use of awkward postures, stooping, kneeling, and crawling, and avoid 

extensive periods of standing, walking and repetitive climbing. Dr. Race concluded that 

appellant did not meet the requirements of his previous position and that the restrictions noted on 

the functional capacity evaluation were appropriate. 

Appellant returned to limited-duty work for the employing establishment in 

February 2009 but he stopped work in April 2009. 

In an April 9, 2009 report, Dr. Helo Chen, an attending osteopath and Board-certified 

family practitioner, stated that appellant needed a high back chair with lumbar support to 

maintain his limited-duty work. Appellant later asserted that the employing establishment did 

not provide him with such a chair. Electromyogram and nerve conduction testing from early 

2009 was consistent with an acute ongoing chronic bilateral L4 radiculopathy and right-sided L5 

and S1 radiculopathy. Magnetic resonance imaging (MRI) scan testing of the right knee from 

that period showed focal bone contusion involving the medial femoral condyle consistent with 

direct trauma. 

In a June 23, 2009 report, Dr. Robert E. Cantu, an attending Board-certified psychiatrist, 

indicated that the May 28, 2008 work accident resulted in a psychiatric disability that prevented 

appellant from returning to work in any capacity for the next six months. 

In a July 7, 2009 report, Dr. Chen disagreed with Dr. Race’s opinion because appellant 

had neurological and other physical complications as a result of his May 28, 2008 work injury 

which had not been addressed. He recommended that appellant start physical therapy to help 

with strength, conditioning, and pain control. Dr. Chen stated that appellant could not return to 

work in any capacity. 

 2

 Appellant previously underwent right shoulder surgery in the late 1990s and early 2000s related to his 

participation in rodeos. 
3

In August 2009 OWCP referred appellant to Dr. Grant McKeever, a Board-certified 

orthopedic surgeon, for a second opinion examination and updated evaluation regarding his 

physical condition and ability to work. In a September 21, 2009 report, Dr. McKeever described 

appellant’s May 28, 2008 work injury and reported his examination findings. Based on his 

examination, Dr. McKeever diagnosed chronic lumbosacral syndrome and chronic thoracic spine 

syndrome. Given appellant’s orthopedic condition, Dr. McKeever saw no reason why appellant 

could not return to his preinjury job without difficulty. He found that appellant appeared to have 

nonorthopedic difficulties which would prohibit him from working and he recommended 

continued psychiatric care. 

In an October 19, 2009 report, Dr. Cantu stated that appellant met the clinical criteria for 

post-traumatic stress disorder, depression and chronic pain disorder. He reported that appellant’s 

conditions had responded to medication. 

In October 2009 OWCP referred appellant to Dr. Henry Hare, Jr., a Board-certified 

psychiatrist and neurologist, for a second opinion regarding his emotional condition. In a 

November 9, 2009 report, Dr. Hare stated that appellant’s mood and affect were intense and 

anxious but appropriate. Appellant appeared mildly depressed, but his speech was coherent and 

his concentration, judgment, abstraction and memory were good. Dr. Hare diagnosed adjustment 

disorder with mixed anxiety and depressed mood chronic (mild) under Axis I, obsessive 

compulsive personality disorder under Axis II, and multiple orthopedic injuries with residual 

pain under Axis III.3

 He described appellant as very rigid and severely compulsive who saw 

everything in black and white and was unable to negotiate, which led to occupational problems. 

Dr. Hare felt appellant was totally disabled psychiatrically due to an extreme preoccupation with 

health and pain. He stated that appellant was competent to do his usual job but that he was 

totally disabled as long as he was fearful of returning to work. 

OWCP requested that Dr. Hare clarify his November 9, 2009 report. In a January 29, 

2010 supplemental report, Dr. Hare added that appellant had an adjustment disorder with anxiety 

and depression and an obsessive compulsive personality disorder. The adjustment disorder, 

anxiety, and depression were related to the work injury, but his obsessive compulsive personality 

disorder was nonindustrial. Dr. Hare found that, because of his rigid personality, appellant could 

only return to work if all of his conditions were met. 

In April 2010, OWCP expanded the claim to accept unspecified anxiety, and a depressive 

disorder due to the May 28, 2008 work injury. The acceptance was based on the reports of 

Dr. Hare and a March 24, 2010 report of an OWCP medical adviser. 

OWCP again requested that Dr. Hare clarify his opinion. In a May 20, 2010 report, 

Dr. Hare stated that appellant could return to full-duty work with no restrictions relative to 

musculoskeletal issues. He also indicated that, if appellant was accommodated for his physical 

complaints, there was no psychiatric reason he could not return to work. 

In June 2010 OWCP determined that there was a conflict between Dr. Cantu and 

Dr. Hare regarding appellant’s psychiatric condition and referred appellant to Dr. Andrew 

 3

 Dr. Hare did not perform a physical examination of appellant. 
4

Brylowski, a Board-certified psychiatrist and neurologist, for an impartial medical examination 

and evaluation. 

In an August 19, 2010 report, Dr. Brylowski described appellant’s factual and medical 

history and detailed the findings of the evaluation he conducted on that date. Appellant stated 

that he felt he was suffering depression and anxiety due to his May 28, 2008 work injury and that 

he had problems with his short and long-term memory following the accident. He reported that 

he had nightmares about it almost every day. Appellant stated that he argued with his father and 

acted-out violently with his fiancé. He reported that he had suicidal ideations without any plan. 

Dr. Brylowski noted that appellant reported pain over his entire body as well as feelings 

of numbness from his earlobes to his fingers and toes. Appellant reported that his pain was about 

the same day or night. Dr. Brylowski indicated that, upon examination, appellant had some 

limitation of motion of his neck and right shoulder and muscle strength was 4/5 in the quadriceps 

and hamstrings of his right knee. He stated that appellant had weakness in many muscle groups 

that could not be explained. Dr. Brylowski found appellant’s subjective complaints were out of 

proportion to objective findings. 

In response to a question regarding whether anxiety and depressive conditions prevented 

appellant from working in any capacity, Dr. Brylowski stated “no” and noted, “The claimant has 

been dealing with symptoms of anxiety and depression for a significant portion of his life. They 

appear to have been exacerbated by this injury.” He advised that appellant’s anxiety and 

depressive symptoms appeared to rise to the level of an adjustment reaction with anxiety and 

depressed mood features. Dr. Brylowski stated that some of appellant’s symptoms were 

consistent with his preexisting diagnoses and his use of psychiatric medicines. He noted, “There 

is no psychiatric condition (Axis I or Axis II) related to the work injury with symptoms of 

anxiety and depression that is preventing him from returning to work in any capacity. 

Adjustment reaction with anxiety and depression symptoms can be treated concurrent with 

employment.” 

In his August 19, 2010 report, Dr. Brylowski found that appellant could return to work 

for eight hours per day from a psychiatric point of view but he could not return to his regularduty position and that he would require light-duty work. He reported that he could not find a 

severe primary anxiety or depressive disorder related to the work injury and that adjustment 

reaction with mixed anxiety and depressed mood appeared to continue. Objective findings were 

consistent with symptom over reporting and long-standing psychiatric pathology. Dr. Brylowski 

recommended a neurosurgical consultation for appellant’s low back, with verification of 

examination findings, and noted that a neurosurgeon might want to perform a myelogram. He 

stated that his opinion was based on objective findings on physical examination and retrospective 

reexamination of some of the medical records and that those findings supported the possibility of 

a right knee condition or a low back condition or both. 

OWCP determined that there was a conflict between Dr. Chen and Dr. McKeever 

regarding the nature of appellant’s physical condition and referred appellant to Dr. Frank L. 

Barnes, a Board-certified orthopedic surgeon, for an impartial examination. 
5

In an October 26, 2010 report, Dr. Barnes described the May 28, 2008 work accident and 

appellant’s medical history. He noted that, after the accident, appellant complained of pain in his 

entire spine, right shoulder and right knee. Appellant also reported that he experienced shortterm and long-term memory loss since the accident. Dr. Barnes stated that an MRI scan of 

appellant’s lumbar spine showed a right-sided disc herniation at L5-S1 which indented the nerve 

root and that an MRI scan of his thoracic spine showed a right T8 disc protrusion contacting the 

spinal cord. Dr. Barnes detailed the findings of the physical examination he conducted on 

October 26, 2010 and diagnosed closed-head injury with symptoms of poor memory, thoracic 

disc herniation, and lumbar disc herniation. 

In a November 24, 2010 report, Dr. Barnes responded to OWCP’s questions noting that 

appellant’s neck, lumbar, thoracic, shoulder, and knee conditions did not prevent him from 

working eight hours per day in a sedentary capacity. Regarding a question about whether 

appellant’s sprains and contusions had resolved, he stated that the acute sprain and contusions, in 

all medical probability, had resolved within six weeks of the accident. In a November 23, 2010 

work restriction form, Dr. Barnes noted that appellant could work limited duty for eight hours 

daily, with restrictions, or squat or kneel. 

In December 2010 OWCP asked Dr. Barnes to further clarify his work restrictions. In a 

December 23, 2010 work restriction form, Dr. Barnes indicated that appellant could perform 

limited-duty work for eight hours per day, with restrictions of walking for two hours per day, 

standing for one hour per day, operating a motor vehicle at work for two hours per day and 

lifting, pushing, or pulling up to 20 pounds. He could twist, bend, stoop, squat, or climb for onehalf hour per day for each activity.4

 In January 2010 OWCP asked Dr. Barnes to clarify the 

number of hours that appellant could lift. In a January 10, 2011 work restriction form, 

Dr. Barnes stated that appellant could sit eight hours daily while performing limited duty for 

eight hours daily. He had restrictions of walking for two hours per day, standing for two hours 

per day, operating a motor vehicle at work for one hour per day and lifting 10 pounds for two 

hours per day. Appellant could not squat or climb. 

In various 2010 and 2011 reports, Dr. Chen continued to note that appellant was totally 

disabled due to thoracic, lumbar, and right knee conditions. 

In February 2011, appellant began to participate in OWCP-sponsored vocational 

rehabilitation efforts. A February 18, 2011 report noted that appellant stated that he had worked 

for a construction company as a manager from 1998 to 2003. Appellant indicated that he 

supervised a crew of 10 to 15 employees and coordinated mostly residential remodeling jobs and 

that his job included assigning crews and ensuring that they had materials for the job. 

In April 2011 Edward Hernandez, appellant’s vocational rehabilitation counselor at the 

time, indicated that he had basic computer skills in using Microsoft Office Word and he 

suggested that he undergo additional vocational training so that he would be able to use 

Microsoft Excel, Outlook, and Power Point. 

 4

 Dr. Barnes indicated on the form that appellant’s poor coordination, extremity atrophy and bilateral leg 

weakness and numbness prevented him from performing more strenuous work than sedentary work. 
6

In an undated report, Beth Deans, a certified vocational evaluator, reported the findings 

of vocational testing she administered to appellant on May 19 and 20, 2011. She noted that 

appellant’s general cognitive ability appeared to be considerably below the average range at the 

time according to the results of the differential aptitude test. Appellant scored in the low range 

on both the verbal and the numerical portions and his abstract reasoning and spatial scores. 

Ms. Deans indicated that vocational training or an apprenticeship would be achievable with 

appellant’s high motivation. Appellant’s best job matches between aptitudes and interests were 

park worker (booth), security guard, and retail sales clerk. He needed improvement in his 

academic skills to work as an insurance clerk, advertising manager or sales representative (farm 

and garden). Ms. Deans stated that appellant’s constant pain and medications may have 

seriously affected his cognitive functioning and memory during the vocational testing and 

indicated that he appeared to need cognitive retraining before attempting any formal job training. 

In a June 29, 2011 report, Mr. Hernandez stated that he had planned for appellant to 

participate in computer skills retraining, however the next available training was 

September 2011. Mr. Hernandez stated that appellant could perform the constructed position of 

construction estimator, a job listed in the Department of Labor’s Dictionary of Occupational 

Titles. He stated that appellant’s work history showed 10 years of work as a superintendent for a 

small construction company that involved scheduling construction projects, assigning work 

crews and purchasing supplies. 

The construction estimator position involved analyzing blueprints, specifications, 

proposals, and other documentation to prepare time, cost, and labor estimates for constructionrelated projects and services. The construction estimator must review data to determine material 

and labor requirements and prepare estimates for planning, organizing and scheduling work. The 

job also involves preparing bids, selecting vendors or subcontractors and determining cost 

effectiveness. The construction estimator conducts special studies to develop standard hour and 

cost data and consults with clients, vendors, or others to discuss and formulate estimates and 

resolve issues. The physical demands of the construction estimator position, classified as 

sedentary in nature, included occasional lifting up to 10 pounds, frequent reaching and handling 

and occasional fingering. Appellant’s vocational rehabilitation counselor performed a labor 

market survey on June 20, 2011 and found that the construction estimator position still was 

reasonably available in appellant’s commuting area at a weekly wage of $600.00. 

Appellant attempted to find a job over the course of 90 days, but he was not successful in 

his job placement efforts. His vocational rehabilitation file was closed in late October 2011. 

In a June 19, 2012 letter, OWCP advised appellant that it proposed to reduce his 

compensation based on his capacity to earn wages as a construction estimator. It noted that the 

opinion of Dr. Barnes showed that his physical condition did not prevent him from performing 

the construction estimator position5

 and that the opinion of Dr. Brylowski showed that his 

psychiatric condition did not prevent him from performing the position. OWCP noted that 

appellant’s vocational rehabilitation counselor provided an opinion that he was vocationally 

 5

 OWCP indicated that appellant’s physical work abilities were described by the work restrictions form that 

Dr. Barnes completed on January 10, 2011. 
7

capable of working as a construction estimator. Appellant was provided 30 days from the date of 

the letter to submit evidence and argument challenging the proposed action. 

Appellant submitted a July 9, 2012 report in which Dr. Chen stated that he could only 

work for four hours per day due to his multiple medical problems. Dr. Chen indicated that 

appellant continued to suffer from pain in his neck, upper back, lower back, right shoulder and 

right knee and that he also had anxiety and depressive disorders. 

Appellant’s vocational rehabilitation counselor performed another labor market survey on 

September 2, 2013 and found that the construction estimator position still was reasonably 

available in appellant’s commuting area at a weekly wage of $600.00. The position had the same 

duties and physical requirements as it did in June 2011. 

In a September 24, 2013 decision, OWCP reduced appellant’s compensation effective 

October 10, 2013 based on his capacity to earn wages as a construction estimator. It indicated 

that the weight of the medical evidence continued to rest with the opinions of the impartial 

medical specialists Dr. Barnes and Dr. Brylowski, respectively. 

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.6 OWCP’s 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.7

 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 or her wageearning 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.8 Wage-earning 

capacity is a measure of the employee’s ability to earn wages in the open labor market under 

normal employment conditions.9

 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.10 The fact that an employee has been unsuccessful in obtaining work in the 

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

7 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

8 See E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C. § 8115(a). 

9 Albert L. Poe, 37 ECAB 684, 690 (1986). 

10 Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See 

Glen L. Sinclair, 36 ECAB 664, 669 (1985). 
8

selected position does not establish that the work is not reasonably available in his commuting 

area.

11

 In determining wage-earning capacity based on a constructed position, consideration is 

given to the residuals of the employment injury and the effects of conditions which preexisted 

the employment injury.12 In determining wage-earning capacity based on a constructed position, 

consideration is not given to conditions which arise subsequent to the employment injury.13

 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 or to an OWCP wage-earning capacity specialist for selection of a position, listed in 

the U.S. Department of Labor, Dictionary of Occupational Titles or otherwise available in the 

open labor 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. Finally, application of the principles set forth in 

the Shadrick decision will result in the percentage of the employee’s loss of wage-earning 

capacity.14

 Section 8123(a) of FECA provides in pertinent part: “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.”15 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.16 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight. 

The Board has held that stale medical evidence cannot form the basis for current 

evaluation of residual symptomology, disability determination, or other medical determinations. 

 11 See Leo A. Chartier, 32 ECAB 652, 657 (1981). 

12 See Jess D. Todd, 34 ECAB 798, 804 (1983). 

13 N.J., 59 ECAB 397 (2008). 

14 See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Albert C. Shadrick, 5 ECAB 376 (1953). 

15 5 U.S.C. § 8123(a). 

16 William C. Bush, 40 ECAB 1064, 1075 (1989). 
9

For example, in the case of J.A.,

17 the Board held that medical reports from November 2010 were 

of limited probative value regarding the claimant’s medical condition as October 2012.18

ANALYSIS 

OWCP accepted that on May 28, 2008 appellant sustained a concussion, sprains of his 

neck, thoracic region, lumbar region, right shoulder and upper arm, and contusions of his right 

knee and lower leg when his work vehicle was struck by another vehicle. It later accepted that 

he sustained anxiety and depressive disorder due to the May 28, 2008 work injury. Appellant 

stopped work on May 28, 2008 and received disability compensation. He returned to limitedduty work for the employing establishment in February 2009 but he stopped work in April 2009. 

Appellant received disability compensation on the periodic rolls. 

OWCP reduced appellant’s compensation effective October 10, 2013 due to his capacity 

to earn wages as a construction estimator. The determination that appellant was physically 

capable of working as a construction estimator was based on the opinion of Dr. Barnes, a Boardcertified orthopedic surgeon who served as an impartial medical specialist. The determination 

that he was psychiatrically capable of working as a construction estimator was based on the 

opinion of Dr. Brylowski, a Board-certified psychiatrist and neurologist, who also served as an 

impartial specialist. OWCP found that these opinions constituted the weight of the medical 

opinion evidence with respect to appellant’s physical and psychiatric medical conditions and that 

they resolved the conflicts in the medical opinion evidence with respect to these matters. 

The Board notes that OWCP properly referred appellant to Dr. Barnes and Dr. Brylowski 

for impartial medical examinations.19 However, OWCP improperly relied on their opinions to 

determine that appellant was physically and psychiatrically able to work as a construction 

estimator. In this case, the medical evidence upon which OWCP relied to determine appellant’s 

ability to work as a construction estimator was stale. 

Dr. Barnes’ opinion regarding appellant’s ability to work from an orthopedic standpoint 

was based on a physical examination of appellant conducted on October 26, 2010.20 

 17 Docket No. 13-1657 (issued February 3, 2014). 

18 See also Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two 

years old deemed invalid basis for disability determination and loss of wage-earning capacity determination); 

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

Position, Chapter 2.816.4(d) (June 2013) (a wage-earning capacity determination must be based on a reasonably 

current medical evaluation).

19 OWCP properly determined that there was a conflict in the medical opinion evidence regarding appellant’s 

physical condition between Dr. Chen, an attending osteopath and Board-certified family practitioner, and 

Dr. McKeever, a Board-certified orthopedic surgeon, who served as an OWCP referral physician. It also properly 

determined that there was a conflict in the medical opinion evidence regarding appellant’s psychiatric condition 

between Dr. Cantu, an attending Board-certified psychiatrist, and Dr. Hare, a Board-certified psychiatrist and 

neurologist, who served as an OWCP referral physician. See supra note 15. 

20 Dr. Barnes initially completed his narrative report and work restrictions evaluation form on October 26, 2010. 

He later completed work restrictions evaluation forms on November 23 and December 23, 2010 and January 10, 

2011, but these were not based on any additional examination of appellant. 
10

Dr. Brylowski’s opinion regarding appellant’s ability to work from a psychiatric standpoint was 

based on a psychiatric examination of appellant conducted on August 19, 2010. These opinions 

would not provide a reasonably accurate assessment of appellant’s medical condition and ability 

to work around the time OWCP adjusted his compensation effective October 10, 2013. The 

Board has had occasion to evaluate the probative value of older medical reports and, because 

cases differ, it has never adopted a rigid standard. However, in J.A.,

21 the Board held that in that 

case medical reports from November 2010 were of limited probative value regarding the 

claimant’s medical condition as October 2012. 

The Board further notes that, although appellant had considerable experience in the 

construction field and his vocational rehabilitation counselor approved the position, there is 

evidence in the record that several physicians noted appellant’s problems with short-term and 

long-term memory. Vocational testing from May 2011 suggested that appellant had cognitive 

ability considerably below the average range particularly with regard to skills needed for 

technical or administrative types of jobs. 

CONCLUSION 

The Board finds that OWCP improperly reduced appellant’s compensation effective 

October 10, 2013 based on his capacity to earn wages as a construction estimator. 

ORDER 

IT IS HEREBY ORDERED THAT the September 24, 2013 decision of the Office of 

Workers’ Compensation Programs is reversed.22

Issued: September 4, 2015 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 See supra note 17. 

22 Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective December 27, 2014.