United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.E., Appellant 

and 

DEPARTMENT OF THE TREASURY, U.S. 

MINT, San Francisco, CA, Employer 

__________________________________________ 

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Docket No. 15-1072 

Issued: February 23, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 9, 2015 appellant filed a timely appeal of an October 8, 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. 

ISSUE 

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

benefits based on her capacity to earn wages in the constructed position of call-out operator. 

FACTUAL HISTORY 

This case was previously before the Board.2

 On September 29, 1993 appellant, then a 38-

year-old coin checker, filed an occupational disease claim (Form CA-2) alleging that she injured 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 98-1983 (issued July 18, 2000). 
2 

her right thumb, arm, shoulder, and back as a result of her federal employment duties. OWCP 

accepted the claim for tendinitis of the right hand, wrist, and arm. Appellant was placed on the 

periodic rolls effective May 27, 1994. She was involved in OWCP vocational rehabilitation 

services and received a diploma as an ophthalmic technician on December 29, 1995. On 

January 7, 1997 OWCP reduced appellant’s wage-loss compensation based on her ability to earn 

wages in the selected position of ophthalmic assistant. On March 18, 1998 a hearing 

representative affirmed OWCP’s decision. By decision dated July 18, 2000, the Board reversed 

the March 18, 1998 decision finding that appellant did not have sufficient training to perform the 

duties of the selected position. The facts of the case, as set forth in the prior decision, are 

incorporated herein by reference. 

In a November 9, 2006 letter, OWCP referred appellant to Dr. Arthur Auerbach, a Boardcertified orthopedic surgeon, to obtain an assessment of her employment-related condition, the 

extent of disability, and appropriate treatment. In his December 7, 2006 report, Dr. Auerbach 

reviewed a statement of accepted facts and appellant’s medical history. He conducted a physical 

examination and concluded that she had reached maximum medical improvement. Dr. Auerbach 

concluded that appellant continued to suffer residuals of her work-related injury and opined that 

she was capable of light-duty work with the following restrictions: no repetitive movements 

with the wrists and elbows; no reaching with the right arm; no reaching above the shoulder with 

the right arm; no pushing, pulling, or lifting greater than 10 pounds occasionally with the right 

arm. 

On April 18, 2007 OWCP determined that the weight of the medical evidence rested with 

Dr. Auerbach and requested a job offer from the employing establishment that complied with his 

work restrictions. 

By letter dated April 23, 2007, OWCP again referred appellant to vocational 

rehabilitation services to assist her in returning to work. On December 27, 2007 it closed 

appellant’s file for vocational rehabilitation services as medical issues were being clarified. 

In an April 3, 2008 letter, OWCP notified the employing establishment that appellant’s 

vocational rehabilitation services had been closed in December 2007 as there were new medical 

issues that needed to be addressed. It advised that it was arranging for a new second opinion 

examination. 

OWCP referred appellant to Dr. Joseph McCoy, a Board-certified orthopedic surgeon, for 

a second opinion examination to determine the nature and extent of her employment-related 

conditions. In an April 28, 2008 report, Dr. McCoy reviewed a statement of accepted facts, her 

medical history, and conducted a physical examination. He opined that appellant was capable of 

working as an optometric technician for eight hours per day. In a July 7, 2008 addendum report, 

Dr. McCoy opined that she was capable of participating in vocational rehabilitation. 

In a July 15, 2008 report, Dr. David LaRochelle, an attending orthopedic surgeon, 

disagreed with Dr. McCoy’s assessment as appellant had an underlying rheumatologic condition. 

He opined that she was not capable of reaching above the shoulder or lifting more than 10 

pounds. 
3 

In a December 4, 2008 letter, OWCP notified appellant that it had found a conflict in the 

medical opinions of Drs. McCoy and LaRochelle and referred her to an impartial medical 

examiner to resolve the conflict. On October 6, 2009 Dr. Mathias Masem, an orthopedic 

surgeon, reviewed a statement of accepted facts, reviewed the medical record, and conducted a 

physical examination. He diagnosed right wrist tendinitis, right carpal tunnel syndrome, right 

elbow tendinitis, and right shoulder impingement syndrome. Dr. Masem opined that appellant 

had a chronic right upper extremity repetitive strain injury, which arose out of her federal 

employment. He disagreed with Dr. McCoy and concurred with Dr. LaRochelle that her right 

shoulder injury was causally related to her federal employment. Dr. Masem found no evidence 

of an underlying systemic inflammatory disease process or a cervical spine problem. He 

restricted appellant from pushing, pulling, reaching above the shoulder, and lifting more than 

five pounds. In a June 7, 2010 addendum report, Dr. Masem increased her lifting capacity to 10 

pounds occasionally. 

In reports dated January 12, 2011 through November 4, 2013, Dr. Robert Gomez, a 

Board-certified orthopedic surgeon and appellant’s attending physician, restricted her from 

lifting, pushing, and pulling over 10 pounds with both upper extremities and no repetitive use of 

both upper extremities. 

OWCP referred appellant to Dr. J. Hearst Welborn, Jr., a Board-certified orthopedic 

surgeon, for a second opinion examination to determine the nature and extent of her 

employment-related condition. In a September 26, 2011 report, Dr. Welborn reviewed a 

statement of accepted facts, her medical history, and conducted a physical examination. He 

diagnosed de Quervain’s tenosynovitis, shoulder impingement syndrome, bicipital tendinitis, 

fibromyalgia, and chronic pain syndrome. Dr. Welborn noted that the shoulder impingement and 

de Quervain’s tendinitis were causally related to appellant’s federal employment and noted that 

her fibromyalgia and chronic pain conditions were not employment related. He found that she 

did not have residuals of her work-related conditions as they had resolved over the past 18 years. 

Dr. Welborn advised that appellant could work full-time, light duty with a restriction of lifting up 

to 20 pounds. 

On November 2, 2011 Dr. Gomez indicated that he disagreed with Dr. Welborn’s 

evaluation and agreed “with Dr. LaRochelle and Dr. Masem that [appellant had] chronic right 

shoulder impingement syndrome, chronic right wrist [d]e Quervain’s tenosynovitis, intermittent 

right elbow pathology either tendinitis versus radial tunnel syndrome” and found no evidence for 

fibromyalgia or chronic pain syndrome. In a September 13, 2013 report, he opined that appellant 

continued to suffer residuals of her employment-related conditions. On November 4, 2013 

Dr. Gomez advised that she could work with restrictions of no lifting, pushing, or pulling over 10 

pounds with both arms, and no repetitive use of both arms. 

In a November 20, 2013 letter, OWCP referred appellant to vocational rehabilitation 

services based on Dr. Gomez’s November 4, 2013 report indicating that she was capable of 

performing modified duties with restrictions. 

On January 8, 2014 a vocational rehabilitation counselor identified the position of callout operator, Department of Labor’s Dictionary of Occupational Titles (DOT) No. 237.367-014 

as suitable to appellant’s work experience, physical restrictions, and education. The call-out 

operator position was identified as sedentary work which involved compiling credit information, 
4 

using the telephone, and copying information. The physical requirements included exerting up 

to 10 pounds of force occasionally. The vocational rehabilitation counselor stated that appellant 

had gained attention to detail skills, basic keyboarding, customer service, and filing skills which 

she could apply towards work as an entry-level call-out operator and indicated that the position 

was reasonably available within the general labor market of appellant’s commuting area on a 

full-time basis as confirmed by the State of California’s Employment Development Department. 

In a February 3, 2014 report, Dr. Gomez reviewed the call-out operator job description 

and physical requirements and opined that appellant was capable of performing the job. 

On February 19, 2014 OWCP received a rehabilitation plan and award, including the 

call-out operator position. As of February 24, 2014, it provided 90 days of placement assistance. 

Placement was unsuccessful. In a July 3, 2014 memorandum, OWCP stated that appellant was 

offered an extension of placement services, but she did not take advantage of this offer. 

Appellant also declined an interview for a position with Bay, Inc. 

On September 2, 2014 OWCP issued a notice of proposed reduction of benefits finding 

that appellant was capable of earning wages as a call-out operator at the rate of $400.00 per 

week. It afforded her 30 days in which to submit evidence or argument regarding her capacity to 

earn wages in the constructed position. 

Appellant submitted a September 30, 2014 narrative statement arguing that she was not 

capable of performing the call-out operator position and submitted reports dated May 5 through 

September 17, 2014 from Dr. Gomez who reiterated his opinion that she was capable of 

performing the job duties of the call-out operator position. 

By decision dated October 8, 2014, OWCP finalized the proposed reduction of 

compensation benefits finding that appellant had the capacity to earn wages as a call-out 

operator. It determined that she had 58 percent loss of wage-earning capacity and her 

compensation was reduced to a net compensation of $868.20 every four weeks.3

 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.4

 

Section 8115(a) of FECA,5 provides in determining compensation for partial disability, 

the wage-earning capacity of an employee is determined by his or her actual earnings if his or 

her actual earnings fairly and reasonably represent his or her wage-earning capacity. If the actual 

                                                             3

 By decision dated April 30, 2015, an OWCP hearing representative affirmed the October 8, 2014 decision. The 

Board and OWCP may not have concurrent jurisdiction over the same issue in a case. Consequently, any decision 

by OWCP on an issue pending before the Board is null and void. See Douglas E. Billings, 41 ECAB 880, 

895 (1990). As OWCP issued the April 30, 2015 decision after appellant’s appeal to the Board on April 9, 2015 and 

as it is on the same issue pending before the Board, loss of wage-earning capacity, it is null and void. See 20 C.F.R. 

§ 501.2(c)(3). 

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

5

 5 U.S.C. § 8115. 
5 

earnings do not fairly and reasonably represent wage-earning capacity or if the employee has no 

actual earnings, his or her wage-earning capacity is determined with due regard to the nature of 

his or her injury, his or her degree of physical impairment, his or her usual employment, his or 

her age, his or her qualifications for other employment, the availability of suitable employment, 

and other factors and circumstances which may affect his or her wage-earning capacity in his or 

her disabled condition.6 Wage-earning capacity is a measure of the employee’s ability to earn 

wages in the open labor market under normal employment conditions.7 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.8 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.9

 

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

be based on a reasonably current medical evaluation.11 

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 DOT or otherwise available in the open 

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 Albert C. 

Shadrick12 will result 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 employee’s 

monthly pay.13 

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 

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

7 See Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982). 

8 Id. 

9 See Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984). 

10 See William H. Woods, 51 ECAB 619 (2000). 

11 See John D. Jackson, 55 ECAB 465 (2004). 

12 5 ECAB 376 (1953). 

13 See Karen L. Lonon-Jones, 50 ECAB (1999). 
6 

immaterial to the loss of wage-earning capacity that can be attributed to the accepted 

employment injury and for which appellant may receive compensation.14 

ANALYSIS 

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

benefits based on her capacity to earn wages in the constructed position of call-out operator. 

OWCP accepted appellant’s claim for tendinitis of the right hand, wrist, and arm and 

referred her to vocational rehabilitation. In its October 8, 2014 decision, it reduced her 

compensation benefits based on her capacity to earn wages as a call-out operator. OWCP 

determined that this position was medically and vocationally suitable for appellant. It found that 

she was capable of earning $400.00 per week and had 58 percent wage-earning capacity. The 

question is whether appellant had some capacity to earn wages and the Board finds that the 

weight of the evidence of record establishes that she had the requisite physical ability, skill, and 

experience to perform the position of call-out operator. 

The vocational rehabilitation counselor determined that appellant was able to perform the 

position of a call-out operator. She provided a job description for the call-out operator position, 

which was identified as sedentary work which involved compiling credit information, using the 

telephone, and copying information. The physical requirements included exerting up to 10 

pounds of force occasionally. The vocational rehabilitation counselor stated that appellant had 

gained attention to detail, basic keyboarding, customer service, and filing skills which she could 

apply towards work as an entry-level call-out operator and indicated that the position was 

reasonably available within the general labor market of appellant’s commuting area on a fulltime basis as confirmed by the State of California’s Employment Development Department. 

The call-out operator position was within appellant’s medical restrictions. In a July 15, 

2008 report, Dr. LaRochelle, an attending orthopedic surgeon, restricted appellant from lifting 

more than 10 pounds. In an October 6, 2009 report, Dr. Masem Mathias, an orthopedic surgeon 

and OWCP referral physician, restricted appellant from lifting more than 10 pounds 

occasionally. In a September 26, 2011 report, Dr. Welborn, a Board-certified orthopedic surgeon 

and OWCP second opinion examiner, found that appellant was capable of full-time, light-duty 

work with a restriction of lifting up to 20 pounds. In his reports, Dr. Gomez, a Board-certified 

orthopedic surgeon and appellant’s attending physician, restricted appellant from lifting, 

pushing, and pulling over 10 pounds with both upper extremities and no repetitive use of both 

upper extremities. In his February 3, 2014 report, he reviewed the call-out operator job 

description and physical requirements and opined that she was capable of performing the job. In 

reports dated May 5 through September 17, 2014, Dr. Gomez reiterated his opinion that 

appellant was capable of performing the job duties of the call-out operator position. 

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

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

qualifications, in determining that the position of call-out operator represented her wage-earning 

capacity.15 The evidence of record establishes that appellant had the requisite physical ability, 

                                                             14 See supra note 11. 

15 See James M. Frasher, 53 ECAB 794 (2002). 
7 

skill, and experience to perform the duties and that the position was reasonably available within 

the general labor market of her commuting area. 

The information as set forth by the vocational counselor determined that the wages for 

the position of call-out operator were $400.00 per week. Applying the Shadrick16 principles, the 

current pay rate for the date-of-injury position is compared with the wage-earning capacity of 

$400.00 per week and a percentage of loss of wage-earning capacity is determined. OWCP 

determined that appellant had 58 percent loss of wage-earning capacity and her compensation 

was reduced to a net compensation of $868.20 every four weeks. The Board finds that OWCP 

met its burden of proof to reduce her compensation. 

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 

benefits based on her capacity to earn wages in the constructed position of call-out operator. 

ORDER 

IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             16 See supra note 12.