United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.G., Appellant 

and 

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN AFFAIRS, BLACKFEET INDIAN 

AGENCY, Browning, MT, Employer 

__________________________________________ 

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Docket No. 14-2026 

Issued: June 1, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 23, 2014 appellant filed a timely appeal of an August 20, 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 the case. 

ISSUE 

The issue is whether OWCP met its burden of proof to reduce appellant’s compensation 

benefits, effective September 23, 2012, based on his capacity to earn wages in the constructed 

position of cashier. 

On appeal appellant contends that OWCP did not consider the documents he submitted to 

show that he could not obtain employment in the private sector. He argued that no business 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

would hire a cashier with his limitations and further contended that all cashier positions in his 

commuting area were limited to 32 hours a week. 

FACTUAL HISTORY 

On March 30, 2004 appellant, then a 59-year-old Foreman II, filed a traumatic injury 

claim alleging that on March 29, 2004 he was a passenger involved in an employment-related 

automobile accident in which he struck his head and shoulder on the door and window. On 

May 18, 2004 OWCP accepted appellant’s claim for low back strain and right hand strain. It 

later accepted appellant’s claim for aggravation of right shoulder impingement syndrome, 

aggravation of right acromioclavicular (AC) joint arthritis, aggravation of cervicalgia, right 

cubital tunnel syndrome, and bilateral ulnar mononeuritis.2

 OWCP paid appropriate 

compensation benefits. 

In an August 25, 2008 report, Dr. Randy Webb, appellant’s treating family practitioner,3

noted that appellant has chronic right shoulder pain and dysfunction due to an employmentrelated injury. He noted that appellant underwent surgery of the right shoulder without 

significant improvement and was now unable to work due to this injury. Dr. Webb noted that 

appellant has limited range of motion with pain on abduction, internal and external rotation of 

the right shoulder, and decreased strength in the right arm. He noted that appellant was tender in 

the trapezium and supraspinatus muscles around the right scapula. Dr. Webb noted that his work 

injury effect persists and that his prognosis is poor for recovery. He noted that appellant was 

unable to use his right arm for his previous occupation. Dr. Webb did not believe that appellant 

will be able to return to work and did not believe that work hardening would be of benefit, 

although he did note that retraining for a job not requiring use of his right upper extremity would 

be acceptable. 

On July 28, 2009 OWCP referred appellant to Dr. Aimee V. Hachigian-Gould, a Boardcertified orthopedic surgeon, for a second opinion. In an opinion dated September 24, 2009, 

Dr. Hachigian-Gould listed impressions of status post right subacromial decompression and 

distal clavicle resection with residual rotator cuff tendinitis, probable right cubital tunnel 

syndrome with ulnar neuropathy in right upper extremity, rule out diabetic neuropathy, 

multilevel cervical degenerative disc disease, depression by history, and possible mild adhesive 

capsulitis right shoulder. She opined that appellant should avoid any work that required the right 

upper extremity to be in a position above chest level. Dr. Hachigian-Gould noted that appellant 

should avoid pushing and pulling more than 5 pounds with the right upper extremity and should 

not do any lifting of more than 5 to 10 pounds with the right upper extremity. She also noted 

that he should avoid activities that require repetitive gripping with the right upper extremity, 

along with fingering of small objects such as coins or nails and screws. Dr. Hachigian-Gould 

also recommended that appellant avoid sitting in a head-forward position for more than 30 

minutes at a time without a position change due to strain on the trapezius muscle of the right 

                                                             2

 OWCP previously accepted appellant’s claim for an April 1, 1992 injury while operating equipment in his 

capacity as an equipment operator that resulted in right median and ulnar nerve entrapment. OWCP File No. 

xxxxxx100. 

3

 Dr. Webb is not Board-certified. 
3

shoulder. She further indicated that appellant should have a 15-minute break every 2 hours and 

limit operating a motor vehicle to 30 minutes at a time. On January 6, 2010 Dr. HachigianGould reviewed electromyogram of the bilateral upper extremities and noted that it was an 

abnormal study consistent with bilateral nonlocalizing ulnar mononeuropathy and additionally 

mild-to-moderate axonal sensory polyneuropathy. She opined that appellant suffered from a 

bilateral nonlocalizing ulnar mononeuropathy, which is more likely than not a combination of his 

April 1, 1992 occupational injury and also the disease of life. Dr. Hachigian-Gould also noted 

that, given the fact that appellant has been required to perform repetitive motions with the 

bilateral upper extremities, there may also be an element of cumulative trauma injury in the 

bilateral upper extremities in addition to his specific occupational injuries. Additionally, she 

noted that, given the fact that appellant had a polyneuropathy of the bilateral ulnar nerves and the 

left radial and left median sensory nerves, he in all likelihood has a component of diabetic 

neuropathy present. She recommended that appellant be evaluated by a neurologist. 

In order to resolve the conflict in the medical opinion evidence between Drs. Webb and 

Hachigian-Gould, on January 19, 2010 OWCP referred appellant to Dr. Catherine Capps, a 

Board-certified orthopedic surgeon, for an impartial medical examination. In a February 1, 2010 

report, Dr. Capps listed the following diagnoses: (1) adult onset diabetes mellitus, with likely 

concurrent diabetic neuropathy; (2) status post right shoulder decompression and distal clavicle 

excision, with ongoing painful loss of range of motion and ongoing weakness, cannot rule out 

subsequent rotator cuff tear versus cuff tendinitis; (3) no evidence of cubital tunnel syndrome or 

carpal tunnel syndrome on multiple nerve conduction velocity tests; and (4) multilevel 

degenerative disc disease of the cervical spine, age related. She noted that appellant did not wish 

to return to work unless he can perform his prior job as foreman, and that he indicated that he 

was not physically capable of performing that job. Dr. Capps noted that appellant should not 

perform any above shoulder reaching or lifting with his right upper extremity. She noted that he 

can lift, push and pull 10 pounds occasionally and 5 pounds frequently with both arms together, 

but is limited to lifting of 5 pounds below shoulder level with the right upper extremity. 

Dr. Capps indicated that appellant can work an eight-hour day with these restrictions at a 

sedentary job. 

In reports dated July 20, 2010 and July 22, 2011, Dr. Webb continued to opine that 

appellant was unable to work due to his employment injury. He noted that appellant has limited 

range of motion with pain on abduction, internal and external rotation of the right shoulder, and 

decreased strength in the right arm. Dr. Webb also noted tenderness in lower cervical spine and 

scalene muscles on the left side as well as decrease grip strength on the right side. He noted that 

the effects of the employment injury persist unabated. Dr. Webb opined that appellant was 

unable to use his right arm for his previous occupation. He also noted that appellant had limited 

range of motion in his neck. Dr. Webb noted that appellant would be unable to use his right 

upper extremity for any kind of work and that he was on chronic medication and intermittent 

physical therapy. In the July 22, 2011 report, he opined that appellant was currently unable to 

return to work part time or limited duty, but that a vocational rehabilitation evaluation would be 

suitable, with a workplace evaluation by a qualified occupational therapist to assist in 

determining his work capacity and job elements required. 

On August 23, 2011 OWCP referred appellant for vocational rehabilitation services. The 

vocational rehabilitation counselor found that appellant was able to work as a cashier. He noted 
4

that according to the Department of Labor’s Dictionary of Occupational Titles (DOT), the duties 

of a cashier are as follows: 

“Receives cash from customer or employees for payment of goods or service and 

records amount of money received. Operates cash register with peripheral data 

processing equipment by passing individual price coded items across scanner to 

record price and display cost of customer purchase, tax, and rebates on monitor 

screen. Sells candy, gum, cigarettes, and gift certificates, etc. 

“Within the occupation of Cashier there are a sub-set of Cashier positions that 

exist that are Sedentary Positions requiring (occasional lift/carry up to 10 

[pounds].)” 

The vocational rehabilitation counselor found numerous cashier positions in appellant’s 

commuting area. In an April 30, 2012 report, the vocational counselor indicated that, based on 

the market contacts he completed for cashiers in the Shelby, Cut Bank, and Browning, Montana 

area, it was his professional opinion that this occupation is sedentary work requiring occasional 

lifting/carrying up to 10 pounds. He also listed positions at self-service gas station cashiers and a 

casino. The vocational rehabilitation counselor opined that appellant’s age of 67 years old would 

not be a barrier in his ability to be employed as a cashier. He further stated that it was his 

professional opinion that the labor market contacts determined that cashier positions exist, in 

significant numbers, within the injured employees’ commuting area, and that it is reasonable to 

expect a person with appellant’s age, level of education, and permanent residual physical 

capabilities to have reasonable prospects for employment as a cashier. The vocational 

rehabilitation counselor indicated that cashier positions were available in part-time and full-time 

assignments. He noted that appellant had obtained part-time work but had been unable to obtain 

a full-time position. The vocational rehabilitation counselor opined that appellant’s part-time job 

cannot be accepted as a fair and reasonable representation of his earning capacity. He indicated 

that appellant’s wages as a full-time cashier would be $355.60 per week, which represented entry 

level wages. 

 On August 2, 2012 OWCP proposed reduction of appellant’s compensation benefits to 

reflect appellant’s ability to earn entry level wages as a cashier in a sedentary position which 

required occasional lifting/carrying up to 10 pounds. It determined that the physical 

requirements of this position did not exceed appellant’s accepted work tolerance limitations and 

that appellant was capable of earning $355.60 per week as a cashier. OWCP recommended 

reduction of compensation for the reason that the position of cashier is medically and 

vocationally suitable for appellant, and fairly and reasonably represented his wage-earning 

capacity. Appellant was given 30 days to submit evidence contesting the proposed benefits 

reduction. 

 In a response dated August 10, 2012, appellant contended that cashiers in his area only 

hire for a 32-hour week or less, that the vocational rehabilitation counselor based his wage 

calculations on larger cities and not where appellant lives where they pay minimum wage, that 

cashiers in his area have to stock shelves and perform other jobs that require lifting and reaching 

beyond his medical restrictions, and that he did two work searches without success because he 
5

could not meet the physical requirements of the job. He noted that the employment accident was 

not his fault as he was a passenger. Appellant noted that he was still in physical therapy. 

In an August 23, 2012 letter, appellant further argued that he attempted to find 

employment as a cashier, but was unsuccessful. He also noted that Dr. Hachigian-Gould 

indicated that he could not perform activities that require repetitive gripping with the right upper 

extremities, along with finger small objects, and that this would include coins. 

In support of his objections, appellant submitted an August 6, 2012 response wherein 

Dr. Webb noted that he last examined appellant on July 20, 2010, reiterated that appellant had 

chronic right shoulder pain and dysfunction due to an employment-related injury, and opined that 

appellant was unable to work due to that injury. He indicated that a work hardening program 

would not be helpful. 

 By decision dated September 19, 2012, OWCP finalized the proposed reduction of 

benefits effective September 23, 2012. 

 On September 27, 2012 appellant requested review of the written record by an OWCP 

hearing representative. By letter dated October 24, 2012, he indicated that he would like to 

rescind his request for a review of the written record and instead ask for an oral hearing. By 

letter dated April 7, 2014, appellant indicated that he had not received a reply about his request 

for a hearing. 

 Appellant submitted several notes from employers in his area in support of his contention 

that he was able to work as a cashier in his commuting area. For example, in a June 19, 2014 

note, Elaine Peterson, the manager at Lucky Lil’s, indicated that the lifting limit for a cashier 

was about 25 to 30 pounds to be carried over an eight-hour shift. In a November 7, 2012 note, 

Tanner Drabbels, an assistant store director for Albertsons’ in Cut Bank, Montana, indicated that 

Albertson’s requires the cashier position to be able to lift up to 40 pounds, bend and stoop, and 

stand for long periods of time. Le Coe, a manager of Cut Bank Super 8, indicated that workers 

are often required to perform substantial lifting tasks. Anita Allderdice, an employee from the 

Palace Casino, indicated that an employee must be able to lift more than 20 pounds when 

needed. Roberta Burtness, a manager at Crossroads Inn, stated that employees were often 

required to perform substantial lifting tasks, and it was not prudent to hire individuals with 

known limits on lifting capacities. Tammy Salois, a manager for an unnamed place, indicated 

that the job required a floor runner to be able to lift 30 to 40 pounds. A cage cashier job 

description for Glacier Peaks Casino indicated that the applicant must be able to lift and carry 50 

pounds. 

 By decision dated August 20, 2014, an OWCP hearing representative affirmed the 

September 19, 2012 OWCP decision after conducting a review of the written record. 

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 proving that the 

disability has ceased or lessened in order to justify termination or modification of compensation 
6

benefits.4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on proper factual and medical background.5

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 an employee has no actual earnings, his or her wage-earning capacity is determined 

with due regards to the nature of the 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 wageearning capacity in his or her disabled condition.6

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 relied upon must provide a detailed description of the condition.7 

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

reasonably current medical evaluation.8

OWCP procedure instructs that, in cases where a claimant has undergone vocational 

rehabilitation, the vocational rehabilitation specialist will submit a final summarizing why 

vocational rehabilitation was unsuccessful and listing two or three jobs which are medically and 

vocationally suitable for the claimant. Where no vocational rehabilitation services were 

provided, the vocational rehabilitation specialist will have provided the report. Included will be 

the corresponding job numbers from DOT (or OWCP specified equivalent) and pay ranges in the 

relevant geographical area.9 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 employee 

service or other applicable service. Finally, application of the principles set forth in the Albert C. 

Shadrick,

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

capacity. 

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 

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

5 See Del K. Rykert, 40 ECAB 284 (1988). 

6

 5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988). 

7 William H. Woods, 51 ECAB 619 (2000). 

8 John D. Jackson, 55 ECAB 465 (2004). 

9

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

Constructed Position, Chapter 2.816.4a. (June 2013). 

10 5 ECAB 376 (1953). 
7

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.11 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 

The Board finds that OWCP met its burden of proof to reduce appellant’s monetary 

compensation based on his capacity to earn wages as an entry level cashier. 

The Board finds that the medical evidence establishes that the physical demands of the 

constructed position were within appellant’s medical restrictions. Dr. Webb, appellant’s treating 

physician, noted, in an August 25, 2008 report, that he did not believe that appellant would be 

able to return to work, but noted that retraining for a job not requiring the use of appellant’s right 

arm would be acceptable. Dr. Hachigian-Gould, the second opinion physician, opined that 

appellant should avoid lifting more than 5 to 10 pounds with the right arm and should avoid 

repetitive gripping with that arm. In order to resolve the conflict between the opinions of 

Dr. Webb and Dr. Hachigian-Gould, OWCP properly referred appellant to Dr. Capps for an 

impartial medical examination, pursuant to 5 U.S.C. § 8123(a). 

Dr. Capps opined that appellant should not perform any above-shoulder reaching should 

be limited to lifting, pushing and pulling 10 pounds occasionally and 5 pounds frequently, and 

was limited to lifting of 5 pounds with his right arm. She indicated that appellant could work 

eight hours a day with these restrictions. When 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.13 As Dr. Capps 

submitted a well-rationalized medical report, OWCP properly gave special weight to her report. 

The vocational rehabilitation counselor indicated that there was a subset of cashier 

positions that allow the cashier to lift or carry no more than 10 pounds. Appellant was capable 

of performing these cashier positions. The vocational rehabilitation counselor conducted a 

search and determined that the selected job was reasonably available for appellant in his 

commuting area and that the weekly salary for an entry level position was $355.60 per week.14

                                                             11 James Henderson, Jr., 51 ECAB 619 (2000). 

12 Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982). 

13 Y.M., Docket Nos. 14-1050 and 14-1193 (issued December 24, 2014). 

14 Rehabilitation counselors are experts in the field of vocational rehabilitation and OWCP may rely on his or her 

opinion as to whether a job is reasonably available and vocationally suitable. See W.B., Docket No. 14-1452 (issued 

December 4, 2014); Lawrence D. Price, 54 ECAB 590 (2003); Federal (FECA) Procedure Manual, supra note 9 at 

Chapter 2.816.6b (June 2013). 
8

Appellant alleged that he was unable to secure employment as a cashier due to his lifting 

restriction, and submitted statements in support of his contention that cashier positions in his 

commuting area were beyond his lifting restrictions. The Board is not persuaded by appellant’s 

submissions of statements from potential employers indicating that positions with their 

respective companies required lifting greater than 10 pounds. The positions as a hotel clerk are 

irrelevant because appellant’s wage-earning capacity was based on the position of cashier, rather 

than a hotel clerk. The Board also notes that most of the statements from potential employers are 

not submitted on company letterhead, and are therefore of questionable validity. Nevertheless, 

even had appellant been unable to secure these positions, the fact that appellant was unable to 

obtain a cashier position does not establish that the work is not reasonably available in his 

commuting area.15 The Board gives great weight to the vocational specialist’s expert opinion.16 

The vocational counselor found that full-time positions were, in fact, available within appellant’s 

commuting area within his restrictions. 

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

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

qualifications in determining that the position of cashier represented his wage-earning capacity.17 

OWCP used the vocational rehabilitation counselor’s information about wage rate for a cashier 

and established that jobs were reasonably available in the general labor market in the geographic 

commuting area where the employee lived. The weight of the evidence of record establishes that 

appellant had the requisite physical ability, skills, and experience to perform the position of 

cashier and the position was reasonably available within the general labor market of appellant’s 

commuting area. OWCP, therefore, properly determined that the position of cashier reflected 

appellant’s wage-earning capacity and using the Shadrick formula properly reduced appellant’s 

compensation effective September 23, 2012.18 The vocational counselor is an expert and the 

Board credits his statements with regard to the applicable wage-earning capacity and the fact that 

appellant could work in this position full time. 

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

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

CONCLUSION 

The Board finds that OWCP met its burden of proof to reduce appellant’s compensation 

benefits, effective September 23, 2012, based on his capacity to earn wages in the constructed 

position of cashier. 

                                                             15 See Leo A. Chartier, 32 ECAB 652, 657 (1981); Federal (FECA) Procedure Manual, supra note 9 at Chapter 

2.816.6c (June 2013). 

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

17 D.W., Docket No. 14-347 (issued June 4, 2014). 

18 See supra note 10; see also 20 C.F.R. § 10.403(e). 
9

ORDER 

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

Compensation Programs dated August 20, 2014 is affirmed. 

Issued: June 1, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board