United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rocky River, OH, Employer 

__________________________________________ 

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Docket No. 16-1309 

Issued: April 21, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 7, 2016 appellant, through counsel, filed a timely appeal from a May 3, 2016 

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

Federal Employees’ Compensation Act2

 (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 

based on his capacity to earn wages in the selected position customer service representative. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

On appeal counsel asserts that the decision is contrary to law and fact. 

FACTUAL HISTORY 

On July 26, 2006 appellant, then a 56-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that his employment duties caused pain in his left heel.3 Following 

an initial denial on November 16, 2006, in a decision dated June 8, 2007 an OWCP hearing 

representative reversed the November 16, 2006 decision and accepted the claim for left foot 

plantar fasciitis and calcaneal stress fracture. 

Dr. Richard Zirm, a podiatrist, performed external neurolysis of Baxter’s nerve of the left 

heel and subtotal plantar fasciotomy of the left foot on October 29, 2007. Appellant did not 

return to work after the surgery and was placed on the periodic compensation rolls. 

In October 2008, OWCP determined that a conflict in medical evidence had been created 

between Dr. Karl V. Metz, a Board-certified orthopedic surgeon and OWCP referral physician, 

who found that appellant continued to have residuals of the accepted condition and, while he was 

not capable of returning to a letter carrier position, he could perform restricted duty for eight 

hours per day and the opinion of Dr. Zirm, who found that appellant was totally disabled. It 

referred appellant to Dr. Robert D. Zaas, Board-certified in orthopedic surgery, for an impartial 

medical evaluation. In an October 28, 2008 report, Dr. Zaas advised that appellant continued to 

have residuals from the accepted conditions and should remain off all work. 

On August 17, 2009 OWCP expanded the accepted conditions to include phlebitis and 

edema of the right leg and pulmonary embolism. 

Dr. Zirm excised a left plantar heel spur on November 16, 2009. He continued to follow 

appellant.4

 In an April 11, 2013 report, Dr. Zirm reported that he had not seen appellant since 

April 25, 2011. He noted appellant’s report that his left heel pain had not significantly changed. 

Dr. Zirm diagnosed recalcitrant left heel spur syndrome. He also noted that appellant was being 

treated for bilateral deep vein thromboses (DVT). Dr. Zirm advised that appellant could not 

return to work as a mail carrier. 

In May 2013, OWCP referred appellant to Dr. Manhal Ghanma, a Board-certified 

orthopedic surgeon and second opinion physician. In a June 3, 2013 report, Dr. Ghanma noted 

his review of the medical record, appellant’s recitation of his medical condition, including his 

right upper extremity injury,5

 and his complaint of difficulty standing, walking, riding, and 

sleeping. He described examination findings. Dr. Ghanma advised that appellant had no 

residuals of the accepted right lateral epicondylitis and right ulnar nerve entrapment conditions. 

With regard to the left lower extremity, he advised that there was no current evidence of a 

 3

 In a claim adjudicated by OWCP under File No. xxxxxx865, OWCP accepted right lateral epicondylitis and 

right ulnar nerve entrapment, for which he had surgery on October 5, 2004. The instant claim was adjudicated by 

OWCP under File No. xxxxxx401. 

4

 The record also contains a number of form treatment notes with illegible signatures. 

5 Supra note 3. 
3

calcaneal stress fracture, but the plantar fasciitis condition had not resolved. Dr. Ghanma further 

opined that neither the left calcaneal spur nor the accepted right lower extremity diagnoses of 

phlebitis and edema and pulmonary embolism were related to the accepted left foot conditions 

and that appellant had no employment-related diagnoses. He indicated that appellant was not 

totally disabled and could perform a seated job. On an attached work capacity evaluation (Form 

5c), Dr. Ghanma provided restrictions of 2 hours walking, standing, pushing, pulling, lifting, 

squatting, and kneeling, and 1 hour climbing, with a 25-pound weight restriction. 

In June 2013, appellant was referred to Mark Anderson, a rehabilitation specialist, for 

vocational rehabilitation services who performed vocational testing and a transferable skills 

analysis on July 19, 2013. He participated in a clerical work adjustment program from 

August 26 to November 18, 2013. Mr. Anderson identified the positions of customer service 

representative and order clerk, and completed a labor market survey for each position on 

November 11, 2013. These included a job description with physical demands for each position, 

indicating that they were sedentary. Mr. Anderson indicated that each position was available in 

the local commuting area. He recommended additional computer skills training. A 

rehabilitation plan was approved. Appellant completed the computer training in March 2014 and 

began job placement. 

In a treatment note dated May 12, 2014, Dr. Zirm reiterated his findings and conclusions. 

In correspondence dated June 25, 2014, he noted that appellant continued to have daily 

moderate-to-severe left hind foot pain. Dr. Zirm advised that appellant had three problems: the 

symptomatic heel, chronic nerve entrapment, and chronic bilateral DVTs. He concluded that 

appellant’s ability to stand, walk, and work on his feet was definitely limited. On July 14, 2014 

Dr. Zirm recommended pain management and indicated that appellant could not tolerate standing 

for long periods. He completed a work capacity evaluation on July 15, 2014 in which he advised 

that appellant could work eight hours daily with permanent restrictions of sitting four hours, and 

walking and standing two hours. 

On August 6, 2014 Mr. Anderson updated the labor market survey information for the 

customer service representative and order clerk positions. OWCP again referred appellant to 

Dr. Ghanma for a second opinion evaluation. 

In a September 8, 2014 report, Dr. Ghanma repeated appellant’s medical and surgical 

history. He noted appellant’s complaint of difficulty standing, walking, riding, and sleeping. 

Dr. Ghanma agreed with his prior opinion that appellant had no residuals of his right lateral 

epicondylitis and right ulnar entrapment, noted no current evidence of calcaneal fracture, and 

that appellant had no evidence of left plantar fasciitis, noting that his symptoms were related to a 

medial heel scar not associated with the plantar fascia, but from the October 29, 2007 left foot 

surgery. He advised that appellant could perform restricted duty for eight hours daily. 

Dr. Ghanma reviewed the requirements of the order clerk and customer service representative 

positions and advised that appellant was capable of performing both jobs. 

On November 13, 2014 OWCP forwarded a copy of Dr. Ghanma’s report to Dr. Zirm for 

comment. 
4

On March 31, 2015 Mr. Anderson updated the labor market survey information for the 

customer service and order clerk positions. 

In a report dated April 30, 2016, Dr. Brant Holtzmeier, an osteopath, noted appellant’s 

complaints of continued leg pain and described his treatment regimen. He diagnosed acute DVT. 

By letter dated May 19, 2015, OWCP proposed to reduce appellant’s compensation, 

based on his capacity to earn wages as a customer service representative, Department of Labor’s 

Dictionary of Occupational Titles (DOT) No. 241.367-014. It noted that on June 3, 2013 

Dr. Ghanma had advised that appellant could work with restrictions and, based on his opinion, 

appellant was referred for vocational rehabilitation and completed authorized training. The 

May 19, 2015 notice also described Dr. Zirm’s restrictions and Dr. Ghanma’s findings in his 

September 8, 2014 report. OWCP noted that Dr. Zirm did not reply to its November 13, 2014 

correspondence. It indicated that the customer service representative position was selected as 

being the most appropriate, based upon the rehabilitation counselor’s review of appellant’s work 

history, and transferrable skills analysis. OWCP described the physical requirements of the 

customer complaint clerk as sedentary and within the restrictions provided by Dr. Ghanma.6

 It 

indicated that, based on recent wage and position information, the customer service 

representative position was reasonably available at an entry pay level of $643.00 per week. 

In response to the proposed reduction, appellant submitted a duplicate of 

Dr. Holtzmeier’s April 30, 2015 report, and patient progress reports dated from March 26 to 

April 21, 2015 regarding his response to medication. 

By decision dated July 21, 2015, OWCP reduced appellant’s wage-loss compensation 

based on his capacity to earn wages as a customer service representative, effective that day. By 

utilizing the Shadrick formula,7

 it found that appellant had 41 percent loss of wage-earning 

capacity. 

 6

 The duties of position DOT No. 241.367-014, which is identified as an adjustment clerk, customer-relationscomplaint clerk, are described in the Department of Labor’s Dictionary of Occupational Titles as: Investigates 

customer complaints about merchandise, service, billing, or credit rating: Examines records, such as bills, computer 

printouts, microfilm, meter readings, bills of lading, and related documents and correspondence, and converses or 

corresponds with customer and other company personnel, such as billing, credit, sales, service, or shipping, to obtain 

facts regarding customer complaint. Examines pertinent information to determine accuracy of customer complaint 

and to determine responsibility for errors. Notifies customer and designated personnel of findings, adjustments, and 

recommendations, such as exchange of merchandise, refund of money, credit of customer’s account, or adjustment 

of customer’s bill. May recommend to management improvements in product, packaging, shipping methods, 

service, or billing methods and procedures to prevent future complaints of similar nature. May examine 

merchandise to determine accuracy of complaint. May follow up on recommended adjustments to ensure customer 

satisfaction. May key information into computer to obtain computerized records. May trace missing merchandise 

and be designated tracer clerk (clerical). May investigate overdue and damaged shipments or shortages in shipments 

for common carrier and be designated over-short-and-damage clerk (clerical). May be designated according to type 

of complaint adjusted as bill adjuster (clerical); merchandise-adjustment clerk (retail trade); service investigator 

(utilities, tel. & tel.). The position is classified as sedentary. 

7 Albert C. Shadrick, 5 ECAB 376 (1953). See discussion infra. 
5

In a July 23, 2015 report, Dr. Holtzmeier reiterated his diagnosis and described 

appellant’s medication regimen. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. At the hearing, held on March 7, 2016, appellant testified regarding his 

employment history and maintained that he did not have the training to perform the duties of 

customer service representative. Counsel agreed that appellant probably had the physical ability 

to perform the position, but as he had no training and was 65 years old, the wage-earning 

capacity determination should be reversed. 

In a May 3, 2016 decision, an OWCP hearing representative noted that the physical 

requirements of the constructed position of customer service representative were within the 

restrictions provided by Dr. Ghanma, and that, as appellant had six months of vocational training 

including three months of computer training, he possessed the required training for the position. 

The hearing representative affirmed the July 21, 2015 wage-earning capacity determination. 

LEGAL PRECEDENT 

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

modification of compensation benefits.8 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.9

 

Section 8115 of FECA and section 10.520 of OWCP regulations provide that wageearning 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.10 

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.11 Additionally, the Board has held that a wage-earning capacity determination must 

be based on a reasonably current medical evaluation.12 

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

9

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

10 5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id. 

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

12 John D. Jackson, supra note 9. 
6

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.13 Finally, application of the principles set forth in Albert C. Shadrick,

14 as codified in 

section 10.403 of OWCP regulations,15 will result in the percentage of the employee’s loss of 

wage-earning capacity.16 

In determining an employee’s wage-earning capacity based on a position deemed 

suitable, but not actually held, OWCP must consider the degree of physical impairment, 

including impairments resulting from both injury related and preexisting conditions, but not 

impairments resulting from post injury or subsequently acquired conditions. 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.17 

ANALYSIS 

OWCP issued its July 21, 2015 wage-earning capacity determination based on appellant’s 

capacity to earn wages as a customer service representative. As noted above, OWCP must 

initially determine a claimant’s medical condition and work restrictions before selecting an 

appropriate position that reflects the claimant’s wage-earning capacity. The medical evidence 

upon which OWCP relies must provide a detailed description of the condition.18 In a report 

dated September 8, 2014, Dr. Ghanma agreed with his prior opinion of June 3, 2013 that 

appellant had no residuals of his right lateral epicondylitis and right ulnar entrapment, noted no 

current evidence of calcaneal fracture, and no evidence of left plantar fasciitis, and advised that 

appellant’s symptoms were related to a medial heel scar from the October 29, 2007 left foot 

surgery. After his review of the requirements of the customer service representative position, he 

advised that appellant was capable of performing the position. 

OWCP forwarded a copy of Dr. Ghanma’s report to Dr. Zirm on November 13, 2014, but 

Dr. Zirm did not respond. However, the record does contain a July 24, 2014 work capacity 

evaluation in which Dr. Zirm advised that appellant could work eight hours daily with permanent 

restrictions of sitting four hours, and walking and standing two hours. These are within the 

 13 Supra note 8. 

14 Albert C. Shadrick, supra note 7. 

15 20 C.F.R. § 10.403. 

16 Supra note 8. 

17 John D. Jackson, supra note 9. 

18 Supra note 11. 
7

restrictions of the sedentary customer service position. Despite his multiple reports, 

Dr. Holtzmeier did not comment on appellant’s work capabilities. Lastly, the Board notes that, 

at the hearing, counsel conceded that appellant probably had the physical ability to perform the 

position. The Board therefore finds that appellant had the physical capacity to perform the duties 

of the selected position. 

The Board also finds that appellant had the necessary vocational and educational 

preparation for the selected position of customer service representative. Appellant successfully 

completed vocational and computer training in March 2014. Mr. Anderson, the vocational 

rehabilitation counselor advised that the customer service position was reasonably available in 

the local labor market with an entry-level weekly wage of $643.00. 

The Board concludes that OWCP considered the appropriate factors in determining that 

the position of customer service representative represented appellant’s wage-earning capacity.19 

These factors include availability of suitable employment and his physical limitations, usual 

employment, age, and employment qualifications.20 The evidence of record establishes that 

appellant 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 his commuting area. 

OWCP therefore properly determined that the position of customer service representative 

reflected his wage-earning capacity, and properly reduced his compensation.21 

Appellant may request 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 

based on his capacity to earn wages in the selected position of customer service representative. 

 19 John D. Jackson, supra note 9. 

20 Id.

21 James Smith, 53 ECAB 188 (2001). 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 3, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 21, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board