United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Carol Stream, IL, Employer 

__________________________________________ 

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Docket No. 15-295 

Issued: May 20, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 21, 2014 appellant filed a timely appeal from the September 9, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP properly adjusted appellant’s compensation effective 

November 26, 2013 based on her ability to earn wages in the constructed position of receptionist; 

and (2) whether it properly modified its November 26, 2013 wage-earning capacity 

determination effective February 24, 2014 based on the finding that appellant’s actual wages as a 

modified city carrier fairly and reasonably represented her wage-earning capacity effective that 

date. 

 

 1 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

OWCP initially accepted that on March 11, 1998 appellant, then a 35-year-old letter 

carrier, sustained a low back contusion, lumbar strain, and coccyx strain when she slipped on ice 

and fell at work. Appellant’s claim was later expanded to include herniated disc at L5-S1 as a 

work-related medical condition and on September 23, 1998 she underwent OWCP-authorized 

hemilaminotomy surgery at L5-Sl with removal of herniated disc. 

Beginning June 25, 2005, appellant received disability compensation on the daily rolls. 

On January 27, 2006 she underwent OWCP-authorized left L5-S1 micro-lumbar discectomy. 

Appellant returned to limited-duty work in February 2006 but stopped work again in 

November 2011. 

In a May 31, 2010 report, Dr. Jon Beran, an attending Board-certified family practitioner, 

indicated that appellant could perform limited-duty work for eight hours per day with restrictions 

such as lifting no more than five pounds. 

In order to obtain clarification regarding appellant’s work-related residuals and ability to 

work, OWCP referred appellant Dr. Theodore J. Suchy, a Board-certified orthopedic surgeon, for 

an examination and opinion on the matter. In a September 13, 2010 report, Dr. Suchy opined 

that appellant could return to work on a full-time basis with restrictions including lifting no more 

than 15 pounds and walking no more than an hour at a time. In reports dated in 2011, Dr. Beran 

continued to recommend greater work restrictions than those provided by Dr. Suchy. 

Due to the conflict in the medical opinion evidence between Drs. Beran and Suchy 

regarding her ability to work, OWCP referred appellant to Dr. Julie Wehner, a Board-certified 

orthopedic surgeon, for an impartial medical examination and opinion on the matter. 

In a report dated June 6, 2012, Dr. Wehner stated that, on examination, appellant’s gait 

pattern was normal, she had mild pain with axial compression/axial rotation and light palpitation 

in her low back area, and she was able to bend to her mid-tibia area with her fingertips touching. 

Straight leg raising was negative, motor strength in her lower extremities was 5/5, and her 

neurological examination was normal. Dr. Wehner indicated that appellant continued to have 

left leg pain but she was capable of performing limited-duty work on a full-time basis. She could 

lift 10 to 15 pounds and could walk four to six hours per day (but not more than one hour at a 

time). 

Appellant was referred to an OWCP-sponsored vocational rehabilitation program. In 

March 2013 her vocational rehabilitation counselor determined that she was capable of working 

as a receptionist or customer service representative and that current state labor market surveys 

showed that these positions were reasonably available in her commuting area. The receptionist 

position Department of Labor, Dictionary of Occupational Titles (DOT) #237.367-038, was 

characterized as sedentary in nature2

 and involved such duties as receiving callers at 

 2

 Sedentary work, according to the DOT, involves occasionally exerting up to 10 pounds of force and sitting most 

of the time, but may involve walking or standing for brief periods of time. 
3

establishments, determining the nature of their business, operating telephones, and recording the 

information of callers. 

Appellant was notified that she would receive 90 days of job placement assistance and, at 

the end of that period, compensation would be reduced based on her ability to earn wages, 

regardless of whether she became reemployed. She was not placed in a job at the end of 90 days. 

In an October 3, 2013 letter, OWCP advised appellant that it proposed to reduce her 

compensation based on her capacity to earn wages in the constructed position of receptionist. It 

indicated that the duties of the receptionist position, based on the DOT, were within her work 

capacity, based on the work restrictions provided by Dr. Wehner, and that the position was 

reasonably available within her commuting area. Appellant’s loss of wage-earning capacity was 

calculated based on her ability to earn wages of $393.20 per week in the receptionist position. 

According to the Shadrick formula,3

 this resulted in a loss of wage-earning capacity of $437.83 

per week. Appellant was afforded 30 days to provide evidence or argument against the proposed 

decision to reduce compensation. 

Additional medical evidence was received from Dr. Vikram Prabhu, an attending Boardcertified neurosurgeon. In his report of September 11, 2013, he advised that he was 

recommending surgery, including L5-S1 decompression and fusion. Dr. Prabhu did not provide 

any opinion on appellant’s ability to work. 

In a November 26, 2013 decision, OWCP adjusted appellant’s compensation effective 

November 26, 2013 based on her ability to earn wages in the constructed position of receptionist. 

It found that the evidence of record showed that she was physically and vocationally capable of 

earning wages in the constructed position of receptionist and that the position was reasonably 

available in her commuting area. 

On February 24, 2014 appellant began working as a modified city carrier for the 

employing establishment with wages of $1,097.56 per week. 

Appellant requested a telephonic hearing with an OWCP hearing representative. During 

the hearing held on June 17, 2014, counsel argued that OWCP’s reduction of appellant’s 

compensation based on her ability to work as a receptionist was defective on its face because the 

DOT was outdated and had been replaced by other resources. He claimed that the DOT provides 

inaccurate job descriptions because it had not been updated to match the actual jobs presently 

available. 

In a September 9, 2014 decision, OWCP hearing representative found that OWCP’s 

November 26, 2013 wage-earning capacity determination was proper at the time it was made. 

He found that the medical opinion of Dr. Wehner showed that appellant could earn wages as a 

receptionist. The opinion of appellant’s vocational rehabilitation counselor confirmed that she 

 3 See infra note 11. 
4

was vocationally capable of performing the position and that it was reasonably available within 

her commuting area. He indicated that the DOT was a valid source for job descriptions and 

stated: 

“The decision to reduce the claimant’s compensation based on her ability to earn 

wages as a receptionist was correct, based on the evidence of record at the time it 

was issued. 

“It is noted, however, that the wage-earning capacity decision of November 2[6], 

2013 must be modified effective June 11, 2014,4

 when [OWCP] made a formal 

finding that the claimant’s actual earnings, working as a [m]odified [c]ity 

[c]arrier] since February 24, 2014, fairly and reasonably represented the 

claimant’s wage-earning capacity. [OWCP] further reduced the claimant’s 

compensation on this basis. 

“Modification of a standing wage-earning capacity determination is not warranted 

unless there is 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 erroneous. In this case, the 

claimant was vocationally rehabilitated. 

“For the reasons set forth above, the decision dated November [26], 2013, is 

hereby affirmed, but modified to reflect that the position of receptionist no longer 

represented the claimant’s wage-earning capacity effective June 11, 2014, when 

[OWCP] set that decision aside on the basis the claimant had been rehabilitated, 

and the claimant’s held job as a [m]odified [c]ity [c]arrier] fairly and reasonably 

represented her wage-earning capacity.” 

LEGAL PRECEDENT -- ISSUE 1 

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.5

 OWCP’s 

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

on a proper factual and medical background.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 her wage-earning 

capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or 

if the employee has no actual earnings, her wage-earning capacity is determined with due regard 

to the nature of her injury, her degree of physical impairment, her usual employment, her age, 

 4

 The Board notes that appellant’s disability compensation was reduced to zero effective February 24, 2014 and 

OWCP hearing representative effectively modified OWCP’s November 26, 2013 wage-earning capacity 

determination to reflect this circumstance. 

 5 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005). 

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

her qualifications for other employment, the availability of suitable employment and other 

factors and circumstances which may affect her wage-earning capacity in her disabled 

condition.7 Wage-earning capacity is a measure of the employee’s ability to earn wages in the 

open labor market under normal employment conditions.8

 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.9

 The fact that an employee has been unsuccessful 

in obtaining work in the selected position does not establish that the work is not reasonably 

available in her commuting area.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 or to an Office wage-earning capacity specialist for selection of a position, listed in 

the DOT or otherwise available in the open labor market, that fits that employee’s capabilities 

with regard to 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.11 

 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.”12 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.13 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.14 

ANALYSIS -- ISSUE 1 

OWCP accepted that on March 11, 1998 appellant sustained a low back contusion, 

lumbar strain, coccyx strain, and herniated disc at L5-S1 when she slipped on ice and fell at 

 

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

8 Albert L. Poe, 37 ECAB 684 (1986). 

9 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 (1985). 

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

 11 See Dennis D. Owen, 44 ECAB 475 (1993); Albert C. Shadrick, 5 ECAB 376 (1953). 

 12 5 U.S.C. § 8123(a). 

13 William C. Bush, 40 ECAB 1064 (1989). 

 14 Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980). 
6

work. It authorized low back surgeries that were performed on June 25, 2005 and 

January 27, 2006. Appellant returned to limited-duty work in February 2006 but stopped work 

again in November 2011. 

The record contains work restrictions provided by Dr. Wehner, a Board-certified 

orthopedic surgeon who served as an impartial medical specialist on this matter. OWCP 

properly determined that there was a conflict in the medical opinion evidence and referred 

appellant to Dr. Wehner for an impartial medical examination.15 In a well-rationalized report 

dated June 6, 2012, Dr. Wehner found that appellant was capable of performing limited-duty 

work on a full-time basis. Appellant could lift up to 15 pounds and could walk for up to six 

hours per day (but not more than one hour at a time). Dr. Wehner’s opinion represents the 

weight of the medical evidence regarding appellant’s ability to work.16

The Board notes that the selected position of receptionist is within appellant’s physical 

work tolerances as detailed by Dr. Wehner. The receptionist position was defined as sedentary 

in nature and only required occasional lifting of up to 10 pounds and walking and standing for 

brief periods. Appellant’s vocational rehabilitation counselor determined that she was able to 

perform the position of receptionist and that state employment services showed the position was 

available in sufficient numbers so as to make it reasonably available within her commuting area. 

Appellant’s vocational rehabilitation counselor is an expert in the field of vocational 

rehabilitation and OWCP may rely on her opinion regarding reasonably availability and 

vocational suitability.17 

Counsel alleged that the description of the receptionist position from the DOT did not 

provide a realistic description of actual jobs in the workplace and therefore it was improper to 

rate appellant’s wage-earning capacity based on such a constructed position. 

The Board notes that OWCP procedure provides that in cases where the claimant has 

undergone vocational rehabilitation, the vocational rehabilitation counselor will submit a final 

report to the vocational rehabilitation specialist summarizing why vocational rehabilitation was 

unsuccessful and listing two or more jobs which are medically and vocationally suitable for the 

claimant. The report will include the corresponding job numbers from DOT or (OWCPspecified equivalent) and pay ranges in the relevant geographical area. The vocational 

rehabilitation counselor will also include the DOT’s description (or OWCP-specified equivalent) 

 15 See supra notes 12 and 13. In a September 13, 2010 report, Dr. Suchy, a Board-certified orthopedic surgeon 

serving as an OWCP referral physician, opined that appellant could return to work on a full-time basis with 

restrictions including lifting no more than 15 pounds and walking no more than an hour at a time. In contrast, 

Dr. Beran, an attending Board-certified family practitioner, recommend greater work restrictions than those 

provided by Dr. Suchy. 

16 See supra note 14. In a September 11, 2013 report, Dr. Prabhu, an attending Board-certified neurosurgeon, 

advised that he was recommending surgery, including L5-S1 decompression and fusion. However, he did not 

provide any opinion on appellant’s ability to work. 

17 G.A., Docket No. 13-1351 (issued January 10, 2014). 
7

of the duties and physical requirements of each job.18 Counsel has not provided compelling 

argument that the description of the receptionist position in the DOT was inaccurate. 

Appellant did not submit evidence or argument showing that she could not vocationally 

or physically perform the receptionist position. OWCP considered the proper factors, such as 

availability of suitable employment and her physical limitations, usual employment, age and 

employment qualifications, in determining that the position of receptionist represented 

appellant’s wage-earning capacity effective November 26, 2013.19 The weight of the evidence 

of record establishes that appellant had the requisite physical ability, skill, and experience to 

perform the position of receptionist and that such a position was reasonably available within the 

general labor market of her commuting area. Therefore, OWCP properly reduced appellant’s 

compensation effective November 26, 2013 based on her capacity to earn wages as a 

receptionist. 

LEGAL PRECEDENT -- ISSUE 2 

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless there is 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.20 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.21 

Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages 

received by an employee if the earnings fairly and reasonably represent her wage-earning 

capacity. Generally, wages actually earned are the best measure of wage-earning capacity and, 

in the absence of evidence showing that they do not fairly and reasonably represent the injured 

employee’s wage-earning capacity, must be accepted as such measure.22 A determination 

regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity 

should be made only after an employee has worked in a given position for at least 60 days.23 

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

Constructed Position, Chapter 2.816.4 (June 2013); see also T.G., Docket No. 14-921 (issued September 17, 2014) 

(the Board noted that the claimant did not submit evidence supporting that the position at issue was not reasonably 

available and that OWCP procedures clearly state that the vocational counselor shall include in his or her report the 

DOT description of duties and physical requirements). 

 19 See Clayton Varner, 37 ECAB 248 (1985). 

20 C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004). OWCP procedure 

provides that it may be appropriate to modify the wage-earning LWEC rating on the grounds that the claimant has 

been vocationally rehabilitated if the claimant is employed in a new job (a job different from the job for which he or 

she was rated) obtained with additional training which pays at least 25 percent more than the current pay of the job 

for which the claimant was rated. Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of 

Wage-Earning Capacity Decisions, Chapter 2.1501.5c (June 2013). 

21 See T.M., Docket No. 08-975 (issued February 6, 2009). 

 22 E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995). 

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

Wages, Chapter 2.815.5 (June 2013). 
8

Wage-earning capacity may not be based on an odd-lot or make-shift position designed for an 

employee’s particular needs, a temporary position when the position held at the time of injury 

was permanent, or a position that is seasonal in an area where year-round employment is 

available.24

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly modified its November 26, 2013 wage-earning 

capacity determination effective February 24, 2014 based on the finding that appellant’s actual 

wages as a modified city carrier fairly and reasonably represented her wage-earning capacity 

effective that date. OWCP provided justification for this modification by finding that appellant 

had been vocationally rehabilitated when she started earning actual wages as a modified city 

carrier beginning February 24, 2014. 

The record reveals that appellant had received actual earnings as a modified city carrier 

for more than 60 days in that she had been working in the position since February 24, 2014 when 

OWCP issued its June 11, 2014 decision.25 OWCP compared appellant’s actual earnings as a 

modified city carrier with the wages she was able to earn in her date-of-injury job. Appellant’s 

actual earnings met or exceeded those she earned at the time of her injury and OWCP properly 

reduced her wage-loss compensation to zero.26 OWCP also properly found that appellant’s 

actual wages as a modified city carrier fairly and reasonably represented her wage-earning 

capacity. The record does not establish that the modified city carrier position constitutes parttime, sporadic, seasonal, or temporary work. Moreover, the record does not reveal that the 

position is a make-shift position designed for appellant’s particular needs.27

CONCLUSION 

The Board finds that OWCP properly adjusted appellant’s compensation effective 

November 26, 2013 based on her ability to earn wages in the constructed position of receptionist. 

The Board further finds that OWCP properly modified its November 26, 2013 wage-earning 

capacity determination effective February 24, 2014 based on the finding that her actual wages as 

a modified city carrier fairly and reasonably represented her wage-earning capacity effective that 

date. 

 

 24 See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, supra at Chapter 

2.815c (June 2013). 

25 See supra note 23. 

26 The Board notes that appellant participated in a vocational rehabilitation program and her earnings in the 

modified city carrier position ($1,097.56) were more than 25 percent greater than those of her constructed 

receptionist position ($393.20) in which she was previously rated. See supra note 20. 

 27 See supra note 24. 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 9, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board