United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

DEPARTMENT OF AGRICULTURE, 

INSPECTION OPERATIONS PROGRAM,

St. Cornelia, GA, Employer

__________________________________________

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Docket No. 17-0208

Issued: April 17, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 9, 2016 appellant, through counsel, filed a timely appeal from a

September 23, 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 this case. 

 

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

ISSUE

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

effective October 29, 2015, based on her capacity to earn wages in the constructed position of 

customer service representative. 

FACTUAL HISTORY

On August 24, 2004 appellant, then a 47-year-old consumer safety inspector, filed an 

occupational disease claim (Form CA-2) alleging that her asthma attacks were caused or 

aggravated by the chemicals in the plant at work. She stopped work on February 14, 2004 and 

returned to work on August 26, 2004 with restrictions of not entering chiller/rehang room. OWCP 

initially accepted the claim for precipitation of asthma (asthma attacks) due to chlorine exposure. 

Appellant intermittently stopped work. She stopped work on November 11, 2005 and has not 

returned. OWCP paid appellant wage-loss compensation benefits on the periodic rolls as of 

December 25, 2005. On February 21, 2008 it expanded acceptance of the claim to include 

consequential right carpal tunnel syndrome, for which she underwent right carpal tunnel release 

on January 9, 2008. 

Appellant continued to submit medical reports from Dr. Timothy B. Gibson, a Boardcertified family practitioner. In a report dated October 30, 2009, Dr. Gibson related that her asthma 

flare-ups did not cease when she was no longer exposed to chemicals or temperature changes. He 

related that appellant could return to work, but not in the job she performed at the time that her 

asthma flared up. 

OWCP referred appellant for second opinion evaluations to determine her disability status. 

In an August 16, 2010 report, Dr. Wesley R. Bray, Board-certified in internal medicine and 

pulmonary disease, related that she had been exposed to chlorine gas in 2004 and, after that time,

her asthma was harder to control, and she was more sensitive to exposures. He explained that this 

was consistent with reactive airways dysfunction syndrome. Dr. Bray opined that appellant could 

return to work in some capacity, but that she should not be exposed to inhaled chemicals or 

irritants. 

In a January 24, 2013 report, Dr. Gibson stated that appellant’s asthma was stable and that 

her January 23, 2013 pulmonary function test was unchanged from the prior year. He opined that 

she could return to gainful employment as long as she was not exposed to chemicals, fumes, 

irritants, and/or extreme changes in temperature. 

On April 11, 2013 OWCP referred appellant for vocational rehabilitation services. On 

August 30, 2013 appellant tripped and fell, breaking her left small finger and spraining her right

ankle. She underwent surgery on her left small finger on September 24, 2013. On November 22, 

2013 appellant was placed in medical rehabilitation status while recovering from the August 30, 

2013 fall. She subsequently completed computer classes and earned certificates in Microsoft Word 

Access, Excel, and PowerPoint. 

In a June 24, 2014 report, Dr. Eric S. Furie, a Board-certified orthopedic surgeon, acting 

as an OWCP second opinion physician, related that appellant no longer required treatment for her 
3

carpal tunnel syndrome. He opined that she could be gainfully employed and recommended work 

hardening. Appellant subsequently attended a work hardening program.

A March 25, 2015 functional capacity evaluation (FCE) demonstrated that appellant could 

perform a job in the light physical demand category with some ability in the medium category. It 

noted that she was able to perform safe lifting in the following capacity: 30 pounds, floor to waist 

(occasional); 20 pounds, floor to waist (frequent); 25 pounds, waist to shoulder (occasional); 20 

pounds, waist to shoulder (frequent); 25 pounds overhead (occasional); and 10 pounds, overhead 

(frequent). Appellant was also cable of frequent reaching, constant sitting, and frequent 

walking/standing with intermittent sitting due to asthma symptoms with sustained physical 

activity. 

In a May 12, 2015 work-capacity evaluation (OWCP-5c), Dr. Gibson opined that appellant 

could return to work full-time limited duty. He also concurred with the March 25, 2015 FCE 

findings. 

In a June 11, 2015 report, a vocational rehabilitation specialist recommended positions of 

customer service representative and receptionist. The position of customer service representative,

Department of Labor, Dictionary of Occupational Titles (DOT) No. 239.3621-014, is sedentary, 

and has physical demands of occasional reaching and handling and frequent fingering. The 

vocational rehabilitation specialist indicated that appellant met the specific vocational preparation 

level as she had been provided training in Word, Excel, PowerPoint, and Access which qualified 

her for the job. In a June 10, 2015 labor market survey, the vocational rehabilitation specialist 

confirmed that there were sufficient openings for those positions in appellant’s commuting area. 

By letter dated September 24, 2015, OWCP proposed to reduce appellant’s wage-loss

compensation based on her capacity to earn wages in the constructed position of customer service 

representative, DOT No. 239.3621-014, at the rate of $393.20 per week. It determined that the 

selected position was medically and vocationally suitable for her and represented her wage-earning 

capacity. As appellant’s wage-earning capacity was less than the current pay of the job she held 

when injured, 34 percent, OWCP proposed to reduce her wage-loss compensation benefits to 

$2,155.00 every four weeks. She was afforded 30 days in which to submit contrary evidence. 

In response, appellant submitted additional medical evidence. In an October 20, 2015 

letter, Dr. Gibson advised that while she had occasional exacerbations of her asthma, her condition 

had been stable overall. He further stated “unfortunately, due to [appellant’s] past problems, she 

has now developed [chronic obstructive pulmonary disease] COPD and is on continuous oxygen.”

Dr. Gibson opined that appellant was totally disabled from work and could not be gainfully 

employed. 

By decision dated October 29, 2015, OWCP reduced appellant’s wage-loss compensation 

based on her capacity to earn wages as a customer service representative earning $393.20 per week. 

On November 4, 2015 counsel requested a telephonic hearing before an OWCP hearing 

representative. The telephonic hearing was held on July 12, 2016. Appellant testified that she has 

had rheumatoid arthritis for a number of years, which has gotten worse in recent years, and that 

she used a walker to assist in ambulation. She stated that she was on 24-hour oxygen and has to 
4

carry around an oxygen canister during the day. Appellant indicated that her bilateral carpal tunnel 

syndrome, for which she underwent surgery on both hands, limited her ability to type. She noted 

that her left carpal tunnel surgery occurred in the 1990s and was covered by workers’

compensation. Appellant further stated that she was on multiple medications for diabetes, 

depression, carpal tunnel syndrome, rheumatoid arthritis, and her breathing conditions, which 

limited her ability to drive. She alleged that she did not have the vocational background for office 

work. Counsel argued that appellant was not capable of performing the selected position due to 

her accepted conditions and preexisting rheumatoid arthritis condition, which required her to use 

a walker to get around. 

OWCP also received a November 12, 2015 x-ray report of appellant’s hands which noted 

unremarkable findings. 

In a January 22, 2016 letter, Dr. Gibson reiterated that appellant’s asthma condition was

stable overall. He also reiterated that, due to her past problems, she developed COPD and was on 

continuous oxygen. 

Treatment notes dated October 22, 2015 to March 31, 2016 from Dr. Alok Sachdeva, a 

rheumatologist, were also received. In the November 19, 2015 treatment note, he reviewed 

laboratory results and stated that appellant “likely has seronegative rheumatoid arthritis.”

Dr. Sachdeva assessed rheumatoid arthritis of multiple sites with negative rheumatoid factor. He 

noted that “symptoms are suggestive of rheumatoid arthritis despite negative serologies.” In a 

March 31, 2016 note, Dr. Sachdeva noted that appellant reported pain in hands, swelling and 

stiffness pain in legs. On examination, appellant’s hands, wrists, elbows, shoulders, and knees 

were tender, but no synovitis or effusion was noted. 

By decision dated September 23, 2016, OWCP’s hearing representative affirmed OWCP’s 

October 29, 2015 decision. 

LEGAL PRECEDENT

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

modification of compensation benefits.3 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 wage-earning 

capacity (LWEC).

4

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

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

capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is determined 

with due regard to the nature of the injury, the degree of physical impairment, the employee’s usual 

 

3 H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 

197 (2005).

4 20 C.F.R. §§ 10.402 and 10.403.
5

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

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

disabled condition.5

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, Dictionary of Occupational Titles or 

otherwise available in the open market, that fit the 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 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. Shadrick6and codified by regulations at 20 C.F.R. § 10.4037should be 

applied. Subsection(d) of the regulations provide that the employee’s wage-earning capacity in 

terms of percentage is obtained by dividing the employee’s actual earnings or the pay rate of the 

position selected by OWCP, by the current pay rate for the job held at the time of the injury.8

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.9 Any incapacity to perform the 

duties of the selected position resulting from subsequently acquired conditions is immaterial to the 

LWEC that can be attributed to the accepted employment injury and for which appellant may 

receive compensation. Additionally, 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.10

ANALYSIS

OWCP accepted appellant’s claim for precipitation of asthma (asthma attacks) due to 

chlorine exposure and later expanded the claim to include consequential right carpal tunnel 

syndrome and surgery. Appellant was placed on the periodic compensation rolls for total disability 

resulting from this injury and eventually referred for vocational rehabilitation services. OWCP 

based its October 29, 2015 LWEC determination on her capacity to earn wages as a customer 

service representative. 

 

5 5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 

584 (1996).

6 5 ECAB 376 (1953).

7 20 C.F.R. § 10.403.

8

Id. at § 10.403(d).

9

James Henderson, Jr., 51 ECAB 268 (2000).

10 Id.
6

OWCP must initially determine a claimant’s medical condition and work restrictions 

before selecting an appropriate position that reflects her wage-earning capacity. The medical 

evidence upon which OWCP relies must provide a detailed description of the condition.11 In a 

May 12, 2015 work capacity evaluation, Dr. Gibson advised that appellant could work full-time 

limited duty and concurred with the March 25, 2015 FCE findings that she could perform light-tomedium work. The position selected was sedentary, and its physical demands of occasional 

reaching and handling and frequent fingering are within the restrictions provided by the FCE and 

which Dr. Gibson concurred. Dr. Furie, OWCP’s second opinion physician also reported on 

June 24, 2014 that appellant no longer required medical treatment for her carpal tunnel syndrome, 

and he opined that she could be gainfully employed. Appellant, thus, has the physical capacity to 

perform the duties of the selected position of customer service representative.

12

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

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

completed and obtained certificates in Microsoft Word, Excel, PowerPoint, and Access.13 

The vocational rehabilitation specialist also found that the position of customer service 

representative was reasonably available in appellant’s local labor market with an entry level 

weekly wage of $393.20.14

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

customer service representative position represented appellant’s wage-earning capacity.15 These 

factors included availability of suitable employment and her physical limitations, usual 

employment, age, and employment qualifications.16 The evidence established 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 her commuting area. Counsel argued 

that she was not capable of performing the selected position due to the additional conditions of 

COPD and rheumatoid arthritis.17 Appellant claimed that the medications she takes for multiple 

medical conditions limit her ability to drive. However, there is no medical evidence of record 

which addresses the effect of any medications that she takes for her work-related and preexisting 

conditions on her ability to drive. While Dr. Gibson indicated that appellant was on continuous 

oxygen due to COPD, he did not provide an opinion which related her COPD to the accepted 

asthma condition or indicated whether COPD was a preexisting condition. He merely noted that 

“due to [appellant’s] past problems, she has now developed COPD.” As noted, in determining an 

 

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

12 Id.

13 See J.E., Docket No. 16-0006 (issued November 16, 2016).

14 Id.

15 John D. Jackson, 55 ECAB 465 (2004).

16 Id.

17 Appellant alleged her left carpal tunnel syndrome was previously accepted by OWCP. This is supported under 

case File No. xxxxxx596, which was retired to the Federal Records Center in July 1999. 
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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.18 With regard to appellant’s rheumatoid arthritis, there is no 

evidence that this condition preexisted her injury or that it limits her ability to perform the duties 

of the selected position. Dr. Sachdeva merely noted that she had a several-year history of joint 

pain. OWCP, therefore, properly determined that the position of customer service representative 

reflected her wage-earning capacity.

19

 

OWCP also properly reduced her compensation pursuant to the principles set forth under 

Shadrick to $2,155.00 every four weeks, effective October 29, 2015, because the pay rate of the 

selected position was less than her date-of-injury salary. The wages in the selected position were 

reported as $393.20 per week. OWCP applied the Shadrick formula to determine the LWEC. The 

earnings of $393.20 are divided by the current pay rate for appellant’s date-of-injury job, to 

determine the wage-earning capacity of 34 percent.20 The pay rate for compensation purposes is 

then multiplied by the wage-earning capacity percentage.21 This amount is subtracted from the 

pay rate for compensation purposes to determine the LWEC.22 OWCP found that appellant’s 

LWEC was $629.19 per week or $2,155.00 every four weeks. The record does not contain any 

evidence of error with respect to these calculations.23

On appeal, counsel alleges that the decision ignored appellant’s physical conditions. 

However, as explained above, OWCP discussed and properly considered both her preexisting and 

subsequently acquired conditions. 

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

 

18 Supra note 9. 

19 James Smith, 53 ECAB 188 (2001).

20 20 C.F.R. § 10.403(d).

21 Id. at § 10.403(e).

22 Id.

23 See T.D., Docket No. 16-0028 (issued November 28, 2016).
8

CONCLUSION

The Board finds that OWCP properly reduced appellant’s compensation, effective 

October 29, 2015 based on her capacity to earn wages in the constructed position of customer 

service representative. 

ORDER

IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 17, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board