United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

U. S. POSTAL SERVICE, POST OFFICE, 

Buffalo, NY, Employer 

__________________________________________ 

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Docket No. 16-0261 

Issued: June 9, 2016 

Appearances: Case Submitted on the Record

David W. Covino, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 24, 2015 appellant, through counsel, filed a timely appeal of a 

September 24, 2015 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 to consider the merits of the case. 

ISSUE 

The issue is whether OWCP met its burden to reduce appellant’s compensation, effective 

September 24, 2015, based on its determination that the constructed position of telemarketer 

represented her wage-earning capacity. 

On appeal appellant’s counsel argues that OWCP incorrectly determined that the opinion 

of the second opinion physician represented the weight of the medical evidence. He contends 

that a conflict in the medical evidence exists between the second opinion physician and 

appellant’s attending physician. Counsel further argues that OWCP failed to inform him of the 

 1

 5 U.S.C. § 8101 et seq.
2

date, time, and location of the second opinion examination. For these reasons he argues that the 

decision on appeal must be reversed. 

FACTUAL HISTORY 

OWCP accepted that appellant, then a 44-year-old part-time, flexible city carrier, tripped 

over a curb and injured her left ankle on December 11, 1996 when she fell while in the 

performance of duty. It accepted the claim for fracture of the medial malleolus of the left ankle. 

Appellant underwent surgical repair of her ankle with internal fixation on December 16, 1996.2

 

OWCP authorized removal of the surgically implanted hardware by letter of February 5, 1998. 

In an operative report dated March 23, 1998, Dr. Stephanie M. Harris3 reported that appellant 

had the hardware in her ankle surgically removed. Appellant subsequently received intermittent 

treatment, therapy, and vocational rehabilitation. She received compensation on the periodic 

rolls beginning in February 1997. 

By letter dated February 9, 2012, OWCP informed appellant that it needed a current 

medical report to support her continued receipt of benefits under FECA. An OWCP work 

capacity evaluation (Form CA-5c) was attached. Appellant was afforded 30 days to provide the 

information requested. In a letter dated March 2, 2012, appellant’s counsel responded to OWCP 

by reporting that appellant had been unable to find a physician who would perform an 

evaluation. He requested that OWCP arrange an appointment and examination. 

OWCP thereafter referred appellant to Dr. Eugene Saiter, Board-certified in orthopedic 

surgery. In a report dated May 17, 2012, Dr. Saiter related that he had evaluated appellant and 

opined that she had reached maximum medical improvement (MMI). He opined that while she 

could not perform the duties of her date-of-injury job, she could perform sedentary work. 

Dr. Saiter found that appellant was a candidate for vocational rehabilitation. However, in an 

addendum report dated October 18, 2012, he admitted that his earlier report contained 

inaccuracies and that he had provided physical limitations which were not related to her claim. 

Dr. Saiter amended his earlier restrictions and noted that appellant was still unable to perform her 

regular job, but could work with restrictions on walking, standing, operating a vehicle, squatting, 

kneeling, and climbing. He also imposed restrictions on appellant’s pushing, pulling, and lifting 

at work. 

In a form dated October 19, 2012, OWCP referred appellant for vocational rehabilitation 

services, with a goal of employment as a cashier, parking lot attendant, or a sales attendant. It 

relied on the October 18, 2012 report of Dr. Saiter. A senior claims examiner reviewed the file 

and completed a memorandum dated November 8, 2012 which determined that the report of 

Dr. Saiter was internally inconsistent. While Dr. Saiter listed certain employment positions as 

vocationally appropriate, his physical restrictions on appellant’s work were more limited than the 

requirements of the positions noted. The vocational rehabilitation referral was closed by OWCP. 

 2

 The record from 1996 does not contain an explicit acknowledgement that appellant’s December 16, 1996 

surgical reduction of her left ankle fracture was authorized by OWCP. The record contains an acceptance of the 

claimed condition dated February 13, 1997. 

3

 The specialty and Board certifications of Dr. Harris could not be determined from the record. 
3

By letter dated January 22, 2013, the employing establishment offered appellant a 

modified position and directed appellant to be interviewed in Westfield, New York. In a 

February 7, 2013 response, appellant’s counsel reported that appellant had lived for years in Fort 

Walton Beach, Florida and requested that she be offered a position in that location. 

Because OWCP found the report of Dr. Saiter to be unreliable, another second opinion 

examination was scheduled for February 13, 2013, however, appellant’s counsel requested that it 

be postponed because appellant was scheduled to be out of the country. It cancelled the 

appointment and, by letter dated May 24, 2013 informed appellant that an appointment with 

Dr. Tai Q. Chung, a Board-certified orthopedic surgeon, was scheduled for June 20, 2013. 

In a report dated June 20, 2013, Dr. Chung noted that he had reviewed the statement of 

accepted facts (SOAF) and the questions posed to him by OWCP. He noted from the record that 

appellant fractured her left ankle when she tripped over a curb on December 11, 1996. Appellant 

was diagnosed with a trimalleolar fracture and underwent an open reduction internal fixation of 

the ankle on December 16, 1996. Dr. Chung noted that appellant experienced persistent 

symptoms and that on March 23, 1998 she had the hardware removed from her left ankle. 

Appellant reported that she continued to have pain and stiffness in the ankle, but she had no 

recent treatment. She denied any prior left ankle injury. 

Dr. Chung noted that appellant’s present complaints included swelling, stiffness, clicking, 

and constant pain in her left ankle. Appellant stated that the pain worsened with standing and 

walking and improved with rest. She related that ankle pain kept her awake at night and she had 

bilateral knee surgery three or four years prior due to arthritis. In addition, Dr. Chung noted that 

appellant previously underwent varicose vein treatment in both legs five years before his 

examination. Appellant’s history was noted as unremarkable otherwise. On physical 

examination, Dr. Chung found a well-healed surgery site on appellant’s left ankle. He noted 

tenderness on the anterior aspect of the ankle. Dr. Chung found sensation somewhat decreased, 

but no instability. Appellant was able to extend and flex her ankle and toes. Her strength was 

reported as good. Dr. Chung noted swelling in both calves. He took x-rays and reported a 

healed fracture, joint space seemed well preserved, and there was no osteophyte. Dr. Chung 

noted the records he reviewed and diagnosed trimalleolar fracture of the left ankle, status post 

open reduction, and internal fixation. He opined that appellant’s fracture had resolved and that 

she was at MMI with some residuals. Dr. Chung diagnosed some post-traumatic arthritis in her 

injured ankle. He opined that this would persist and might worsen with time. Dr. Chung 

determined that appellant was unable to work as a city carrier because she could not lift 70 

pounds, could not stand and walk for eight hours a day, and could not push or pull 70 pounds. 

He opined that appellant could work eight hours a day in a “light-duty position.” Dr. Chung 

identified the following permanent restrictions: stand no more than four hours; sit no more than 

four hours; and not lift over 20 pounds. Appellant needed to be off her feet for a five-minute 

break every hour. Appellant was allowed to climb stairs no more than 15 minutes out of an hour 

and was not allowed to climb ladders. Dr. Chung opined that appellant could perform the duties 

of a cashier. He noted that, at some point in the future, if appellant’s condition worsened, she 

might need an ankle fusion. 

Appellant advised OWCP by letter dated December 17, 2013 that she had relocated to 

Sacramento, California. 
4

In a letter dated February 25, 2014, an OWCP rehabilitation specialist, referred appellant 

for rehabilitation counseling and services. OWCP addressed a letter to appellant, also dated 

April 25, 2013, which informed her that it had determined her to be only partially disabled based 

on the report and opinion of Dr. Chung. The letter stated that vocational rehabilitation services 

were appropriate to assist her in finding employment. 

In a Form OWCP-44, rehabilitation action report, dated March 3, 2014, the rehabilitation 

counselor noted that a new vocational evaluation was unnecessary. She noted appellant’s prior 

work as a letter carrier and as a registered nurse. The jobs to be selected for appellant would all 

involve limited standing and walking and would be sedentary. Following a telephone interview, 

a vocational rehabilitation report dated March 13, 2014 noted that appellant had worked briefly 

for the employing establishment and had spent most of her career as a registered nurse for 22 

years in New York and California.4

 

The vocational rehabilitation counselor prepared a transferrable skills analysis report 

dated March 13, 2014. The report indicated the reason for the referral and noted that the analysis 

was intended to identify a number of feasible jobs, generally available in appellant’s local labor 

market, within her physical limitations and compatible with her transferrable skills. The job 

search took into account appellant’s work history as a nurse and a letter carrier, her vocational 

evaluation, education, and experience. The search was limited to positions in the light to 

sedentary range and which required only limited standing and walking. The report noted 

appellant’s belief that she would not benefit from additional training. Appellant also expressed 

reservations about her ability to fulfill the physical demands of a nursing position. The 

vocational rehabilitation counselor identified telemarketer and receptionist work as being 

sedentary and readily available in the Sacramento area. Those positions required no training. In 

addition, the report also identified the possible positions of: accounting clerk, receptionist, 

hospital admitting clerk, and dispatcher. The vocational rehabilitation counselor reported that 

each occupational category was projected to grow and would continue to be available in 

appellant’s area. The file contains a Form OWCP-66, job classification, dated April 5, 2014 for 

an information (reception) clerk and a separate form for a telemarketer. The forms provided a 

full-position description, list of physical demands, and average weekly wage and availability 

information for each job. The job duties were within the physical restrictions imposed by 

Dr. Chung. 

A labor market survey dated April 5, 2014 showed that both the information clerk and 

telemarketer positions were available in sufficient numbers. By letter dated April 10, 2014, 

OWCP informed appellant that her vocational rehabilitation plan had been approved for 90 days 

of placement services. The record shows progress reports by the vocational rehabilitation 

counselor dated April 6, May 3, June 1 and 30, July 20, and August 1, 2014. These reports 

document appointments, counseling, and conversations during the period of vocational 

rehabilitation services. Appellant focused her interview efforts on job vacancies close to mass 

transit because she did not own her own automobile. The record contains another labor market 

survey dated July 8, 2014 which documents the availability of telemarketer and information clerk 

positions in appellant’s area. 

 4

 Appellant had earned a BSN degree and RN certification in 1973. 
5

By facsimile to the vocational rehabilitation specialist dated July 25, 2014, the vocational 

rehabilitation counselor reported that appellant’s services would terminate effective July 28, 

2014, as appellant had not found employment and that the counselor did not recommend 

continuation of services. In a closure memorandum dated September 12, 2015, appellant was 

described as diligent and earnest in her efforts, but she did not find employment. The 

rehabilitation counselor opined that given appellant’s relative lack of experience and long period 

outside the labor market, her reasonable salary expectation would be the minimum wage of $9.00 

an hour.5

 

Appellant was scheduled for another second opinion examination with Dr. Aubrey 

Swartz, Board certified in orthopedic surgery, who provided a report dated March 17, 2015. 

Dr. Swartz took a history which summarized appellant’s injury and surgical care. He noted that 

she had not seen a doctor for her left ankle since 2013 or 2014. Dr. Swartz added that appellant 

could not recall the last time she saw a doctor for treatment of her left ankle. Appellant 

complained of numbness and constant pain in her left ankle as though she were “walking on her 

bone.” Most of her left ankle pain was reported as central rather than the left or right side. 

Dr. Swartz performed a physical examination. He noted that appellant’s arches were 

good, but that she had a limp. Appellant stated that she used a cane. Dr. Swartz noted numbness 

and tenderness in different areas of the left foot and ankle. He identified the records he reviewed 

which began in 1996 and included the x-ray and the report of Dr. Chung from 2013. Dr. Swartz 

noted that appellant had established post-traumatic arthritis in her left ankle. Appellant had some 

limitation on range of motion, numbness, and pain, and a limp. Dr. Swartz recommended an 

ankle brace and found appellant’s prognosis fair. He went on to opine that appellant could work 

eight hours in a modified-duty position with the following permanent restrictions: sit no more 

than eight hours; walk no more than four hours; and stand nor more than six hours a day. 

Appellant could not use her arms and hands in repetitive movements for more than eight hours, 

reach above the shoulder for more than eight hours, and to twist, bend, or stoop for more than 

eight hours. Appellant also could not drive for more than eight hours. Dr. Swartz’ additional 

restrictions were that she could not push, pull, or lift more than 10 to 20 pounds for more than 

eight hours. He found appellant at MMI. 

On July 28, 2015 OWCP issued a notice of proposed reduction of appellant’s 

compensation, finding that she was partially disabled, and Department of Labor, Dictionary of 

Occupational Titles (DOT) # 299.357-014 able to work as a telemarketer, earning $360.00 per 

week.6

 It reduced her compensation to account for this wage-earning capacity, applying the 

 5

 The Board notes that the file contains several additional pieces of correspondence from the employing 

establishment concerning whether appellant might be placed in a limited-duty position. The record is inconclusive 

regarding the outcome of any initiatives by the employing establishment. In letters to OWCP dated July 7, 2014 and 

January 24, 2015, an employing establishment manager requested medical information and stated that a vacant 

position existed in western New York. OWCP responded by letter dated August 25, 2014 and provided recent 

medical information. Copies of this response were also mailed to appellant and to her representative. 

6

 This weekly salary represents 40 hours of work at $9.00 an hour. 
6

Shadrick7 formula. This calculation was extensively explained in a July 28, 2015 wage-earning 

capacity memorandum included in the file. OWCP relied on the March 17, 2015 report and 

opinion by Dr. Swartz. The decision also referenced the June 20, 2013 report of Dr. Chung 

which also found that appellant was not totally disabled and which formed the basis for her 

referral for vocational rehabilitation services beginning in February 2014. The notice of 

proposed reduction allowed appellant 30 days in which to respond. 

The record also contains a Form CA-816, computation of appellant’s earning capacity, 

dated July 23, 2015.8 The form shows appellant’s earnings at the time of her accident in 1996 

and itemizes the adjustments in those earnings to reach an adjusted figure in 2015, in accordance 

with the Shadrick9 formula. In addition to the CA-816 form, there is a memorandum to the file 

dated July 28, 2015 which explains the adjustment and reduction of appellant’s benefits. 

Appellant submitted an August 20, 2015 letter from her counsel and her own letter dated 

August 19, 2015. In addition, she provided a copy of page 7 of the second opinion report of 

Dr. Swartz and an OWCP CA-5 completed by Dr. Swartz dated April 2, 2015. Appellant 

disagreed with the proposed reduction in her benefits and described her medical conditions in a 

letter dated August 19, 2015. She mentioned bilateral surgeries on her knees, surgery for 

varicose veins in her legs, degenerative lumbar disease, arthritis in her legs and back, and her 

noticeable limp and use of a cane. Appellant also stated that she was 63 years old and took 

medication every four to six hours for pain. Appellant’s counsel provided a two paragraph letter 

dated August 20, 2015 and alleged a conflict of medical opinion between Dr. Swartz and an 

unspecified report from appellant’s treating physician. 

By decision dated September 24, 2015, OWCP finalized the reduction of appellant’s 

compensation finding that the position of telemarketer was medically and vocationally suitable. 

It determined that Dr. Swartz represented the weight of the medical evidence and that there was 

no other medical opinion in the case file which could create a conflict of opinion evidence. 

OWCP noted that the last report by a physician treating appellant was in 2003 and that the last 

second opinion examination was in 2013. It observed that the reports of Dr. Swartz found 

appellant to be partially rather than totally disabled. The decision discussed appellant’s unrelated 

medical conditions and found that the combination of appellant’s work-related condition and any 

preexisting conditions when combined, did not prevent her from working as a telemarketer. 

Furthermore, appellant’s medical conditions which developed subsequent to her accident in 1996 

did not affect her ability to work. Attachments to the decision explained how appellant’s wage-

 7

 The memorandum cites FECA Procedure Manual Chapter 2.815.4c(2)(a) which explains the application of the 

formula contained in the Shadrick opinion. Albert C. Shadrick, 5 ECAB 376 (1953); codified by regulations at 

20 C.F.R. § 10.403. 

8

 The record also contains an earlier wage-earning capacity CA-816 dated April 20, 2011. 

9 Albert C. Shadrick, supra note 6. 
7

earning capacity was calculated pursuant to the Shadrick formula.10 Appellant’s compensation 

was reduced to $489.00 every four weeks.11

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.12 Section 8115(a) of FECA,13 provides that in determining the 

compensation for partial disability, the wage-earning capacity of an employee is determined by 

his or her actual earnings if those actual 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 the injury, degree of physical impairment, his or her 

usual employment, age, qualifications for other employment, the availability of suitable 

employment, and other factors and circumstances which may affect the employees wage-earning 

capacity in his or her disabled condition.14 Wage-earning capacity is a measure of the 

employee’s ability to earn wages in the open labor market under normal employment 

conditions.15 The job selected for determining wage-earning capacity must be reasonably 

available in the general labor market in the commuting area where the employee lives.16 In 

determining an employee’s wage-earning capacity, OWCP may not select a makeshift or odd-lot 

position or one not reasonably available on the open labor market.17

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

be based on a reasonably current medical evaluation.19 

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, Dictionary of 

 10 Id.

11 The compensation rate includes a deduction to cover appellant’s life insurance premiums. 

12 Andrew Wolfgang-Masters, 56 ECAB 412 (2005). 

13 5 U.S.C. § 8115(a). 

14 Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. §8115(a). 

15 Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1984). 

16 Id. 

17 Steve M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984). 

18 William H. Woods, 51 ECAB 465 (2004). 

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

Occupational Titles or otherwise available on the open market, that fits the employee’s 

capabilities with regard to physical limitations, education, age and prior experience. Once this 

selection has been made, a determination of wage rate and availability in the open market should 

be made through contact with the state employment service or other applicable service. Finally, 

application of the principles set forth in Albert C. Shadrick20 will result in in the percentage of 

the employee’s loss of wage-earning capacity. The basic range of compensation paid under 

FECA is 66 2/3 percent of the injured worker’s monthly pay.21 

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.22

The fact that a claimant is unable to secure employment does not establish that the 

constructed position is not vocationally suitable.23 Impairments that preexisted the employment 

injury, in addition to injury-related impairments, must be taken into consideration in selecting a 

job within a claimant’s work tolerance. However, subsequently acquired impairments unrelated 

to the injury are excluded from consideration in determining work capabilities.24

ANALYSIS 

By decision dated September 24, 2015, OWCP finalized a reduction in appellant’s 

compensation to reflect her ability to earn wages as a telemarketer. Before making that 

determination, it must determine appellant’s medical condition and work restrictions and then 

select an appropriate position that reflects her wage-earning capacity. The medical evidence 

used by OWCP must provide a detailed description of appellant’s condition.25 The Board has 

carefully reviewed the second opinion report of Dr. Swartz. Dr. Swartz’ report has reliability, 

probative value, and a convincing quality with respect to the issue on appeal.26 That issue is 

whether appellant is at MMI and is able to work as a telemarketer Dr. Swartz based his opinions 

on a proper factual and medical history. Dr. Swartz made findings on physical examination. He 

reviewed and summarized the relevant medical evidence.27 Dr. Swartz recommended that 

 20 Supra note 6. 

21 Karen L. Lonan-Jones, 50 ECAB 293 (1999). 

22 Supra note 6.

23 Lawrence D. Price, 54 ECAB 590 (2003). 

24 Gary L. Moreland, 54 ECAB 638 (2003). 

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

26 R.W., Docket No. 12-375 (issued October 28, 2013). 

27 Melvina Jackson, 38 ECAB 443 (1987). 
9

appellant work in a sedentary position with restrictions on walking and standing which would 

account for her foot and ankle injury pushing, pulling and lifting which were consistent with the 

physical demands of the telemarketer position. 

Initially, the vocational rehabilitation counselor determined that appellant’s choice of 

employment was a position that did not require additional training. After a job search of the 

Department of Labor, Dictionary of Occupational Titles, the counselor decided on a telemarketer 

position as being the best option. A labor market survey demonstrated that this position was 

available in appellant’s area of Sacramento, California. The counselor and appellant confirmed 

that there were job vacancies in areas of the city served by mass transit which accommodated 

appellant’s transportation needs. The Department of Labor, Dictionary of Occupational Titles

description of the job, when matched against appellant’s college degree and prior work 

experience, made it clear that she would need no specialized training to start work. The OWCP66 form makes clear that the job was in the sedentary range of physical activity and that 

appellant would not need to stand or walk to perform the duties of the job. The Board finds that 

OWCP properly determined that the job of telemarketer reflected appellant’s wage-earning 

capacity. The Board also finds that the record documents that OWCP properly applied the 

Shadrick formula to determine appellant’s compensation, wage-earning capacity and her final, 

reduced benefit amount.28

Appellant’s counsel has not challenged the accuracy of the calculation of appellant’s new 

benefit, nor has he questioned the wage-earning capacity figure itself. Rather, he argues that a 

conflict exists between the opinion of Dr. Swartz, the second opinion physician for OWCP, and 

appellant’s treating physician. Counsel did not offer the date or the substance of any specific 

note, letter, or report from a doctor offering an opinion that appellant is not able to work as of 

September 24, 2015. The record does not contain any evaluation by an attending physician that 

is less than 10 years old. The Board has held that stale evidence cannot create a conflict of 

medical opinion or require the selection of a referee physician.29 

Appellant’s counsel also argues that because he did not receive an attachment to OWCP’s 

letter dated February 2, 2015, the opinion of Dr. Swartz should be excluded from the record. 

The attachment identified the date, time, and place of the examination. The Board has held that a 

defective notice to an appellant’s attorney is not a sufficient reason to exclude a medical opinion 

from the record.30 In the current appeal, the representative acknowledged that he received a 

notice that his client was to undergo a second opinion examination. Assuming appellant’s 

representative had this information, he was obligated on behalf of his client to inquire about the 

details. 

Appellant argues that she is unable to perform the telemarketer job because of her various 

health problems. Her claim was accepted only for a fracture of the left ankle. Appellant’s 

 28 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 

2.813.17.d (February 2011); Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816 

(June 2013). 

29 K.C., Docket No. 14-853 (issued December 1, 2014). 

30 B.J., Docket No. 13-543 (issued June 20, 2013). 
10

arthritis, knee surgeries, low back problem arose after her December 11, 1996 employment 

injury. Therefore, they do not constitute preexisting conditions which would preclude 

consideration of work as a telemarketer.31

CONCLUSION 

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

effective September 24, 2015 based on its determination that the constructed position of 

telemarketer represented her wage-earning capacity. 

ORDER 

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

Compensation Programs dated September 24, 2015 is affirmed. 

Issued: June 9, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 31 Any incapacity to perform the duties of the selected position resulting from subsequently-acquired positions is 

immaterial to the loss of wage-earning capacity which can be attributed to the accepted employment injury. See

C.J., Docket No. 07-598 (issued November 1, 2007); William H. Woods, 51 ECAB 619 (2000).