United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Havre, MT, Employer 

__________________________________________ 

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Docket No. 16-0333 

Issued: June 10, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 23, 2015 appellant filed a timely appeal from a June 10, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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 this case. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from June 10, 2015, the date of OWCP’s last decision, was 

December 7, 2015. Since using December 8, 2015, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is November 23, 2015, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation, effective 

August 12, 2014, based on its finding that he had the capacity to earn wages as an eligibility 

worker. 

FACTUAL HISTORY 

On August 4, 2010 appellant, then a 49-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he injured his knees, neck, back, groin, and 

elbow when he was thrown from an all-terrain vehicle. He stopped work on August 5, 2010 and 

did not return. OWCP accepted the claim for multiple contusions, degenerative or lumbar disc 

disease of the lumbar intervertebral discs, a sprain of the right foot, sprain on the right at an 

unspecified site, sprain of the right lateral collateral ligament of the knee, right chondromalacia 

patellae, and a tear of the right lateral meniscus. It paid appellant compensation for total 

disability beginning November 21, 2010. 

Under subsidiary file number xxxxxx260, OWCP had previously accepted in 

December 2009 a partial rupture of the left quadriceps, left knee, and leg sprain, and thoracic or 

lumbosacral neuritis/radiculitis. 

Appellant underwent a partial right medial meniscectomy and lateral retinacular release 

on May 18, 2011. 

In order to determine whether appellant continued to be disabled due to the accepted 

conditions, on September 12, 2012, OWCP referred appellant to Dr. Lowell M. Anderson, a 

Board-certified orthopedic surgeon, for a second opinion examination. In a report dated 

October 10, 2012, Dr. Anderson reviewed the history of injury and the medical reports of record, 

including the results of diagnostic studies. On examination, he found full range of motion of the 

elbows, full motor and strength testing of the upper extremities, some tenderness of the right 

sacroiliac joint, slight right foot discomfort, and mild crepitus of the right knee. Dr. Anderson 

diagnosed lumbar disc degeneration, an aggravation of preexisting disc pathology, lumbar facet 

arthropathy, and a permanent aggravation of preexisting patellofemoral joint chondromalacia due 

to the August 4, 2010 employment injury. He found that appellant was unable to return to his 

usual employment. In an October 12, 2012 work restriction evaluation, Dr. Anderson 

determined that appellant could work eight hours per day sitting for six hours, walking and 

standing for two hours, pushing, pulling, and lifting up to 25 pounds. He found that appellant 

could not squat, kneel, climb, bend/stoop, or twist. Dr. Anderson further advised that appellant 

should take a 10-minute break each hour and alternate sitting, standing, and walking as needed. 

He opined that appellant could perform “sedentary office work.” 

By letter dated January 29, 2013, OWCP requested that Dr. Anderson clarify his work 

restrictions. In his February 5, 2013 supplemental report, Dr. Anderson indicated that appellant 

could bend while performing sedentary work. He also updated the October 2012 work 

restriction evaluation and advised that he could perform limited squatting, kneeling, and 

climbing and that he should alternate sitting, standing, and walking as necessary. Dr. Anderson 

marked through the requirement that appellant take a 10-minute break each hour. 
3

In a duty status report (Form CA-17) dated April 16, 2013, Dr. Michael D. Nolan, Boardcertified in family medicine, diagnosed lumbar disc disease and found that appellant could lift up 

to 10 pounds, sit for three hours per day, and stand and walk for two hours per day. In a progress 

report dated April 16, 2013, he diagnosed thoracic and lumbosacral neuritis/radiculitis and limb 

pain. Dr. Nolan noted that a second opinion physician had determined that appellant “could do 

things that [he] does [not] think he can do. For instance, he does [not] think he can sit for six 

hours, and he knows he can[not] stand for more than 10 or 15 minutes without getting severe 

back pain.” 

OWCP referred appellant to vocational rehabilitation on April 19, 2013. 

Dr. Nolan evaluated appellant for back pain on April 23, 2013 and indicated that “he will 

continue to be disabled related to his back problem indefinitely.” He noted that he had “some 

type of evaluation which suggested he could sit for as long as six hours at a time, or stand for 

four hours a day. This is inconsistent with my understanding of his condition.” 

In a report dated May 18, 2013, the rehabilitation counselor reviewed appellant’s prior 

work history as a border patrol agent, a machinist, a fishing boat captain, and professional 

quarterback. He noted that appellant had received a Bachelor of Arts in psychology. 

Dr. Nolan submitted an August 16, 2013 duty status report providing the same work 

restrictions as those of April 16, 2013. 

The rehabilitation counselor informed OWCP on August 18, 2013 that appellant had used 

“verbally demeaning and condescending language to bully and intimidate” and “alarming body 

language.” He advised that he had asked to meet with appellant only in a public location or with 

one of his family members present. 

By letter dated November 5, 2013, the rehabilitation counselor asked that appellant sign a 

vocational rehabilitation plan for 90 days of job placement services.3

 He advised appellant that 

he should contact a minimum of eight employers a week. 

Appellant informed OWCP on November 19, 2013 that he did not believe that he could 

drive to apply for jobs when he took narcotic pain medication. He contended that the 

rehabilitation counselor was not providing him with any assistance. 

On December 20, 2013 the rehabilitation counselor requested that OWCP issue appellant 

a sanction letter as he was not cooperating with vocational rehabilitation. 

In a February 14, 2014 letter to OWCP’s rehabilitation specialist, the rehabilitation 

counselor advised that appellant had made threatening statements, indicated that he carried a 

concealed weapon, and had used intimidating body language. He also had refused to meet with 

 3

 On October 17, 2013 Dr. Gregg D. Pike, a Board-certified orthopedic surgeon, reviewed appellant’s history of a 

work injury and diagnosed developing right knee arthritis and left patellofemoral chondromalacia and patellar 

tendinitis. On October 22, 2013 Dr. John G. VanGilder, a Board-certified neurosurgeon, discussed appellant’s 

history of work injures in 2005 and 2010. He recommended an S1 joint injection and referred him to a neurologist 

for memory and cognitive complaints. 
4

the counselor in a public location or to complete the offered rehabilitation plan. Additionally, 

appellant had not completed a resume or identified reasonable job goals, but instead wanted to 

pursue the occupations of football coach or firearms instructor, which the counselor found were 

not available in sufficient numbers in the local area. He had also referred in vulgar terms to the 

second opinion physician and had made it clear that he did not want the rehabilitation counselor 

to work with others to assist him in returning to work without preapproval. 

By letter dated February 14, 2014, OWCP informed appellant that he was obstructing 

vocational rehabilitation efforts by failing to complete the rehabilitation plan, telling the 

rehabilitation counselor not to work without his approval, verbally abusing the rehabilitation 

counselor, and acting in a threatening way. It notified him of the penalty for refusing to 

cooperate with vocational rehabilitation and provided him 30 days to contact both OWCP and 

the rehabilitation counselor and agree to participate with good effort. OWCP advised appellant 

that if he believed that he had good cause for not participating he should provide such reasons in 

writing with supporting documentation. If he did not cooperate with vocational rehabilitation or 

show good cause, it would reduce his compensation as if he had participated with vocational 

rehabilitation. 

The rehabilitation counselor advised appellant on February 21, 2014 that OWCP had 

extended the time for plan development and provided a list of job openings. He recommended 

positions as an eligibility worker, community services worker, and motel desk clerk. 

By letter dated March 6, 2014, appellant challenged OWCP’s finding that he obstructed 

the return to work effort and maintained that he had acted respectfully toward the rehabilitation 

counselor. He accused OWCP of making Dr. Anderson alter his work restrictions and contended 

that the rehabilitation counselor falsely accused him of threatening actions, failing to complete a 

resume, and not wanting assistance with the job search. Appellant indicated that he asked the 

counselor if he could carry a firearm if he worked in child protective services. He maintained 

that he was unable to work full time or drive while under the influence of his narcotic pain 

medication. 

An OWCP rehabilitation specialist, in a response dated March 28, 2014, advised 

appellant that he had not agreed to put forth good effort in cooperating with vocational 

rehabilitation but instead provided reasons for his actions. It notified him that vocational 

rehabilitation was being terminated and it decided that his reasons for failing to cooperate with 

vocational rehabilitation were not valid. 

On April 18, 2014 the vocational rehabilitation counselor completed a job classification 

form (OWCP-66) for the position of eligibility worker from the Department of Labor’s 

Dictionary of Occupational Titles. The position was described as sedentary requiring occasional 

lifting of up to 10 pounds. The rehabilitation counselor determined that appellant had the 

vocational capacity to perform the position, which required specific vocational preparation of 

one to two years, based on his work history and college degree in psychology. He further found 

that the position existed in sufficient numbers in his commuting area at entry level wages of 

$486.40 per week, as confirmed by the state employment offices and direct contact with 

employers. 
5

By letter dated May 15, 2014, appellant advised that he had filed a grievance against the 

rehabilitation counselor with his company. He explained that he had provided reasons for not 

cooperating with vocational rehabilitation within 30 days, noting that the primary reason was that 

he was unable to work full time. Appellant asserted that his treating physician found that he was 

unable to work eight hours a day. 

The OWCP rehabilitation specialist recommended that OWCP reduce appellant’s 

compensation based on the identified position of eligibility worker earning wages of $486.40 per 

week. The rehabilitation specialist noted that appellant had failed to cooperate in vocational 

rehabilitation with good effort. He found that the position of eligibility worker was suitable and 

a good fit for appellant’s degrees in psychology. 

On July 9, 2014 OWCP advised appellant of its proposed reduction of his compensation 

based on its findings that he had the capacity to earn wages as an eligibility workers. It provided 

him 30 days to respond to the proposed reduction of compensation. 

Appellant’s counsel, by letter dated July 25, 2014, requested an extension of time to 

respond to the proposed reduction of compensation. 

In a decision dated August 12, 2014, OWCP reduced appellant’s compensation effective 

August 12, 2014 as he had the capacity to earn wages of $486.40 per week as an eligibility 

worker. It utilized the formula set forth in Albert C. Shadrick,4

 to calculate his wage-earning 

capacity. 

In a report dated August 14, 2014, Dr. Nolan evaluated appellant for back pain. He 

discussed his belief that he could not work as an intake person at a welfare facility because he 

was unable to go for eight hours without lying down. Dr. Nolan advised that he would review 

information but did not know if he could assist appellant with his vocational rehabilitation issues. 

Dr. Wilbert Pino, a Board-certified orthopedic surgeon, evaluated appellant on 

September 4, 2014. He noted a “very convoluted history of a work-related injury dating back to 

2000.” Dr. Pino diagnosed degenerative disc disease of the lumbar spine at multiple levels and 

moderate to advanced joint disease of the hips bilaterally. He related, 

“It is my opinion that [appellant] has significant degenerative disease of his 

lumbar spine and his hip that would preclude him from being active and being 

able to be gainfully employed.... I would concur with prior evaluations and the 

given restrictions of work activities includ[ing] lifting, pushing, pulling, kneeling, 

squatting or stooping. Lifting, pulling and pushing restrictions of 20 pounds on 

[an] occasional basis will also be appropriate. These restrictions would be 

permanent restrictions and limitations on any type of employment that he would 

choose to pursue.” 

In a December 9, 2014 medical status form, Dr. Pino found that appellant could 

occasionally lift up to 20 pounds but could not bend, kneel, squat, or climb. He also determined 

 4

 5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403. 
6

that appellant needed to take numerous breaks. In a report dated December 9, 2014, Dr. Pino 

diagnosed employment-related degenerative joint disease and degenerative disc disease of the 

lumbar spine, moderate to advanced joint disease of the left hip, and post-traumatic degenerative 

joint disease of the right knee after reconstruction. He noted that he had provided restrictions 

and recommended “frequent breaks if [appellant] finds a suitable job. Matching his job to his 

current restrictions may require the intervention of a vocational rehabilitation consultant. I do 

feel that he will have ... significant difficulty performing full-time employment given his 

multiple complaints and limitations.” 

The employing establishment offered appellant a position as a law enforcement 

communications assistant on February 12, 2015. The position required sitting for six hours, 

walking for two hours, and standing for two hours, alternating as needed. 

On March 9, 2015 appellant’s counsel requested reconsideration.5

 He contended that the 

reports from Dr. Pino established that appellant was unable to perform the duties of an eligibility 

worker. 

Dr. Pino, in a March 21, 2015 duty status report, diagnosed lumbar degenerative disc 

disease and found that appellant could lift up to 10 pounds, sit and walk for two hours, and stand 

for one hour. 

Appellant, in a statement dated April 10, 2015, related that OWCP should have informed 

him that his reasons for not cooperating were unacceptable and provided another 15 days before 

ceasing vocational rehabilitation. He listed his complaints against the rehabilitation counselor 

and questioned why OWCP relied upon its referral physician when his attending physicians 

provided their own limitations. 

On March 31, 2015 Dr. Pino diagnosed low back pain with radiculopathy on the right and 

weakness on ambulation. He advised that appellant should continue with the same work 

restrictions. Dr. Pino also provided a progress report dated April 20, 2015. He diagnosed 

employment-related multilevel degenerative disc and joint disease of the lumbar spine. Dr. Pino 

reviewed the work offer from the employing establishment and indicated that it was “not 

consistent with the work restrictions I have provided.” He recommended a functional capacity 

evaluation. 

By decision dated June 10, 2015, OWCP denied modification of its August 12, 2014 loss 

of wage-earning capacity determination. It found that the physical requirements for the position 

of eligibility worker did not exceed the limitations set forth by Dr. Pino. 

LEGAL PRECEDENT 

Once OWCP has made a determination that a claimant is totally disabled as a result of an 

employment injury and pays compensation benefits, it has the burden of justifying a subsequent 

reduction of benefits.6

 Under section 8115(a), wage-earning capacity is determined by the actual 

 5

 On March 17, 2015 appellant requested that OWCP expand acceptance of his claim to include a hip condition. 

6 T.O., 58 ECAB 377 (2007). 
7

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

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

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

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

qualifications for other employment, the availability of suitable employment and other factors or 

circumstances which may affect wage-earning capacity in his disabled condition.7

When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist 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 the employee’s capabilities with regard to his 

physical limitations, education, age and prior experience.8 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. Shadrick9

 will result in the percentage of the employee’s loss of 

wage-earning capacity. 

ANALYSIS 

Appellant received compensation for total disability beginning November 21, 2010 due to 

his August 4, 2010 employment injury, accepted for multiple contusions, degenerative of the 

lumbar intervertebral discs, a sprain of the right foot, a sprain on the right at an unspecified site, 

a sprain of the right lateral collateral ligament of the knee, right chondromalacia patellae, and a 

tear of the right lateral meniscus. He also had a prior claim accepted for a partial rupture of the 

left quadriceps, left knee and leg sprain, and thoracic or lumbosacral neuritis/radiculitis. 

In a report dated October 10, 2010, Dr. Anderson, an OWCP referral physician, 

diagnosed employment-related lumbar disc degeneration, an aggravation of preexisting disc 

pathology, lumbar facet arthropathy, and a permanent aggravation of patellofemoral joint 

chondromalacia. He found that appellant could work full time sitting for six hours per day, 

standing and walking for two hours per day, and pushing, pulling, and lifting up to 25 pounds. 

On February 5, 2013 Dr. Anderson clarified that appellant should alternate sitting, standing, and 

walking as necessary and could perform limited squatting, kneeling, and climbing.10

The Board finds that Dr. Anderson’s opinion establishes that appellant has the requisite 

physical ability to earn wages as an eligibility worker. The position is classified as sedentary 

work requiring occasional lifting of up to 10 pounds, which is within the restrictions set forth by 

Dr. Anderson. 

 7 Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999). 

8 Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000). 

9 See supra note 4. 

10 See N.J., 59 ECAB 171 (2007). 
8

In a progress report dated April 16, 2013, Dr. Nolan diagnosed thoracic and lumbosacral 

neuritis/radiculitis and limb pain. While he also discussed appellant’s belief that he could not sit 

for 6 hours or stand and walk more than 10 to 15 minutes, he did not provide an independent 

assessment of his work abilities. A physician’s report is of little probative value when it is based 

on a claimant’s belief rather than the doctor’s independent judgment.11 

In duty status reports dated April 16 and August 16, 2013, Dr. Nolan diagnosed lumbar 

disease and found that appellant could lift up to 10 pounds, sit for three hours per day, and stand 

and walk for two hours per day. He did not, however, provide any rationale for his opinion and 

thus it is of diminished probative value.12

In assessing the claimant’s ability to perform the selected position, OWCP must consider 

not only physical limitations but also take into account work experience, age, mental capacity 

and educational background.13 The rehabilitation counselor determined that appellant had the 

skills necessary to perform the position of eligibility worker due to his prior employment as a 

border patrol agent and his college degree in psychology. He further found that the position was 

reasonably available within the appropriate geographical area at an entry-level wage of $486.40 

per week. On June 9, 2014 the OWCP rehabilitation specialist concurred with the opinion of the 

rehabilitation counselor. As the rehabilitation specialist is an expert in the field of vocational 

rehabilitation, OWCP may rely on his opinion in determining whether the job is vocationally 

suitable and reasonably available.14 The Board finds that OWCP considered the proper factors, 

including the availability of suitable employment, appellant’s physical limitations, and his 

employment qualifications in determining that he had the capacity to perform the position of 

eligibility worker.15 OWCP further properly determined his loss of wage-earning capacity in 

accordance with the formula developed in Shadrick and codified at 20 C.F.R. § 10.403.16 

OWCP, therefore, properly found that the position of eligibility worker reflected appellant’s 

wage-earning capacity, effective August 12, 2014. 

Subsequent to the issuance of OWCP’s loss of wage-earning capacity decision, appellant 

submitted an August 14, 2014 report from Dr. Nolan who discussed his belief that he was unable 

to perform as an eligibility worker. Dr. Nolan related that he did not know if he could help 

 11 Earl David Seale, 49 ECAB 152 (1997). 

12 Jacquelyn L. Oliver, 48 ECAB 232 (1996). 

13 See supra note 8. 

14 Dorothy Jett, 52 ECAB 246 (2001); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: 

Determining Wage-Earning Capacity, Chapter 2.816.6(c) (June 2013). 

15 See supra note 10. 

16 See supra note 4. OWCP divided appellant’s employment capacity to earn wages of $486.40 a week by his 

current pay rate of the position held when injured of $1,653.97 per week to find a 29 percent wage-earning capacity. 

OWCP multiplied the pay rate at the time of injury of $1,653.97 by the 29 percent wage-earning capacity 

percentage. The resulting amount of $479.65 was subtracted from appellant’s date-of-injury pay rate of $1,668.38 

which provided a loss of wage-earning capacity of $1,174.32 per week. OWCP then multiplied this amount by the 

appropriate compensation rate of three-fourths which yielded $880.74. 
9

appellant with issues regarding rehabilitation. As he did not address appellant’s work capacity, 

his opinion is of little probative value. 

In a report dated September 4, 2014, Dr. Pino noted that appellant had a complicated 

history of work injuries. He diagnosed degenerative disease of the spine and hips preventing 

significant activity or employment. Dr. Pino advised that appellant could lift, push, and pull up 

to 20 pounds occasionally and agreed with restrictions on kneeling, squatting, or stooping. On 

December 9, 2014 he found that appellant could lift up to 20 pounds occasionally but not bend, 

knee, climb, or squat, and required frequent breaks. As Dr. Pino’s restrictions are within those 

required for the position of eligibility worker, his opinion does not establish that appellant is 

unable to perform the duties of the position. 

Dr. Pino, in a duty status report dated March 21, 2015, diagnosed lumbar degenerative 

disc disease and found that appellant could lift up to 10 pounds, sit and walk for two hours, and 

stand for one hour. He checked a box marked “yes” that the history of injury provided by 

appellant corresponded to an injury to his low back, knees, and right foot in an all-terrain vehicle 

accident. The Board has held, however, that an opinion on causal relationship which consists 

only of a physician checking a box marked “yes” to a medical form question on whether the 

claimant’s condition was related to the history given is of little probative value. Without any 

explanation or rationale for the conclusion reached, such report is insufficient to establish causal 

relationship.17

On March 31, 2015 Dr. Pino diagnosed low back pain with radiculopathy and determined 

that appellant had the same work restrictions. He did not, however, explain the reason for the 

limitations or address whether he had the capacity to perform the duties of an eligibility worker. 

Medical opinions which contain no rationale or explanation are of little probative value.18 On 

April 20, 2015 Dr. Pino found that appellant was unable to accept a position with the employing 

establishment as a law enforcement communications assistant; however, this is not relevant to 

the current issue of whether he has shown that he is unable to perform the duties of an eligibility 

worker. 

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 properly reduced appellant’s compensation, effective 

August 12, 2014, based on its finding that he had the capacity to earn wages as an eligibility 

worker. 

 17 Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional 

explanation or rationale, is insufficient to establish causal relationship). 

18 See D.G., Docket No. 15-0948 (issued February 10, 2016); L.G, Docket No. 15-1334 (issued 

January 28, 2016). 
10

ORDER 

IT IS HEREBY ORDERED THAT the June 10, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 10, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board