United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Zanesville, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0496 

Issued: May 25, 2017 

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 January 3, 2017 appellant filed a timely appeal from a July 18, 2016 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 

effective July 19, 2016 based on his capacity to earn wages in the selected positon of cashier. 

FACTUAL HISTORY 

On February 10, 2010 appellant, then a 52-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 9, 2010 he strained his left knee falling on icy 

steps. OWCP accepted the claim for a left knee contusion, lumbosacral sprain, left hip sprain, 

 1

 5 U.S.C. § 8101 et seq. 
2

and an aggravation of preexisting localized left hip osteoarthritis. It paid wage-loss 

compensation for total disability beginning April 4, 2010. On June 8, 2010 appellant underwent 

an authorized total left hip arthroplasty. 

Appellant returned to modified employment on December 13, 2010, but stopped on 

December 31, 2010. OWCP again paid wage-loss compensation for total disability. On 

March 29, 2012 it referred appellant for vocational rehabilitation. The rehabilitation counselor 

advised in July 2013 that appellant was obstructing vocational rehabilitation. OWCP closed 

vocational rehabilitation in December 2014 after the death of the rehabilitation counselor. It 

noted that there was no recent medical evidence in the record. 

By letter dated September 13, 2015, appellant advised that in May 2014 he had a total 

right hip replacement and would need back surgery in the future. 

On December 30, 2015 OWCP referred appellant to Dr. James Rutherford, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated January 13, 

2016, Dr. Rutherford discussed appellant’s history of injury and current complaints of low back 

and left hip pain and numbness in the left buttocks, leg, and foot. On examination he found a 

loss of sensation in the left buttock and tenderness over the lateral left hip area with reduced 

motion. Dr. Rutherford advised that appellant had continued tenderness and loss of motion after 

an authorized left hip replacement and back tenderness and reduced motion due to his accepted 

lumbosacral sprain. He related, “Because of these residual symptoms and clinical findings 

related to the left hip arthroplasty which was done under the industrial claim, [appellant] can do 

only intermittent standing and walking, meaning a total of four hours out of an eight[-]hour day. 

He can lift and carry only up to 15 pounds occasionally. Appellant can do no stooping, climbing, 

or crawling for work activity.” In a January 13, 2016 work restriction evaluation, Dr. Rutherford 

indicated that appellant could not resume his usual employment, but could perform full-time 

sedentary work walking and standing up to four hours per day, pushing and pulling up to 20 

pounds for two and a half hours per day, and lifting up to 15 pounds for two and a half hours per 

day. 

OWCP, on February 19, 2016, again referred appellant for vocational rehabilitation. It 

advised that Dr. Rutherford’s report was the only medical evidence addressing his injury-related 

condition in over three years and established that he was able to resume work with restrictions. 

On February 24, 2016 the rehabilitation counselor advised that appellant told him that he 

did not want to be “rushed” into vocational rehabilitation and might need back surgery in the 

future. 

In a letter dated February 25, 2016, appellant advised OWCP that he might need surgery 

and requested information about a schedule award. 

By letter dated February 25, 2016, OWCP notified appellant that he was impeding 

vocational rehabilitation. It informed 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 
3

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

cause, it would reduce his compensation based on what it would have been had he participated 

with vocational rehabilitation. 

In a vocational rehabilitation report dated February 28, 2016, the rehabilitation counselor 

noted that appellant related that he was unable to look at a computer screen without becoming 

nauseated. Appellant told her by telephone that he did not think a company would hire him and 

noted that he could retire at any time. On March 2, 2016 the rehabilitation counselor advised 

OWCP that he wanted to obtain retirement benefits from the Office of Personnel Management 

(OPM) rather than participate with vocational rehabilitation. 

OWCP, by letter dated March 3, 2016, requested that appellant formally elect between 

OPM benefits and workers’ compensation. In another letter dated March 3, 2016, appellant was 

advised to cooperate with vocational rehabilitation until he underwent back surgery or until his 

retirement with OPM became effective. 

The rehabilitation counselor, on March 9, 2016, related that appellant had the physical 

ability and experience necessary to work as a receptionist and cashier. In a March 16, 2016 job 

classification, he indicated that the positon of cashier 1 was sedentary and required occasional 

lifting of up to 10 pounds.2

 The Department of Labor, Dictionary of Occupational Titles

described the duties of a cashier 1 as sedentary with a specific vocational preparation of six 

months to a year. The rehabilitation counselor found that appellant met the specific vocational 

preparation for the positon based on his work as a supply clerk in the military for 4 years and his 

32 years of work experience. He indicated that the position was reasonably available within his 

commuting area with weekly wages of $362.40 according to state labor market information. 

On March 15, 2016 appellant elected retirement benefits with OPM effective 

April 3, 2016. 

In a March 28, 2016 vocational rehabilitation report, the rehabilitation counselor noted 

that appellant had advised that he was retiring and did not want to participate in vocational 

rehabilitation. 

An OWCP rehabilitation specialist closed vocational rehabilitation on April 6, 2016 as 

appellant had elected OPM benefits. Nonetheless, the specialist noted that he should be rated 

based on the approved job goal. On April 22, 2016 the employing establishment provided 

OWCP with updated pay rate information. 

OWCP, on June 9, 2016, notified appellant of its proposed reduction of his compensation 

based on his capacity to earn wages as a cashier at a rate of $362.40 per week. It provided him 

30 days to submit additional evidence or argument regarding its proposed reduction. 

In telephone calls dated June 13 and July 13, 2016, appellant requested a referral for an 

impairment rating. 

 2

 In an initial job classification dated March 8, 2016, the rehabilitation counselor mistakenly indicated that the 

position required light rather than sedentary physical ability. 
4

By decision dated July 18, 2016, OWCP reduced appellant’s compensation effective 

July 19, 2016 as he had the capacity to earn wages as a cashier. It applied the formula set forth 

in Albert C. Shadrick3

 in determining his loss of wage-earning capacity. 

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

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.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 fits the employee’s capabilities with regard to his 

physical limitations, education, age, and prior experience.6

 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 Shadrick7 will result in the percentage of the employee’s loss of wageearning capacity. 

ANALYSIS 

Appellant received compensation for total disability beginning April 4, 2010 due to his 

accepted left knee contusion, lumbosacral sprain, left hip sprain, and aggravation of preexisting 

localized left hip arthritis. He underwent a left total hip arthroplasty in June 2010. 

OWCP initially referred appellant for vocational rehabilitation in March 2012, but closed 

rehabilitation in December 2014 after the death of the vocational rehabilitation counselor. As the 

record did not contain current medical evidence, on December 30, 2015 it referred him to 

Dr. Rutherford for a second opinion examination. 

 3 Albert C. Shadrick, 5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403. 

4 T.O., 58 ECAB 377 (2007). 

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

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

7 See supra note 3. 
5

On January 13, 2016 Dr. Rutherford found that appellant had continued tenderness and 

reduced motion due to his lumbosacral sprain and left total hip replacement. He found that 

appellant could not return to his usual employment, but could work full time with restrictions on 

lifting and carrying up to 15 pounds for two and a half hours per day, walking and standing up to 

four hours per day, and pushing and pulling up to 20 pounds for two and a half hours per day. 

Dr. Rutherford opined that appellant could not stoop, climb, or crawl. OWCP properly referred 

appellant for vocational rehabilitation as Dr. Rutherford’s report established that he was no 

longer totally disabled due to residuals of his employment injury.8

 

OWCP further properly found that appellant had the capacity to perform the duties of a 

cashier 1. The position is classified as sedentary work requiring occasional lifting of up to 

10 pounds, which is within the restrictions set forth by Dr. Rutherford. Following its proposed 

reduction of his compensation, appellant requested a referral for an impairment evaluation, but 

did not submit any medical evidence showing that he was unable to perform the sedentary 

position. The medical evidence, consequently, establishes that he has the requisite physical 

ability to earn wages as a cashier 1.9

 

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.10 The rehabilitation counselor determined that appellant had the 

skills necessary to perform the position of cashier 1 based on his work as a supply clerk in the 

military and 32 years of work experience. He further found that the position was reasonably 

available within the appropriate geographical area at a wage of $362.40 per week. As the 

rehabilitation counselor 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.11 

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

employment, appellant’s physical limitations, and employment qualifications in determining that 

he had the capacity to perform the position of cashier 1.12 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. § 10.403.13 It, therefore, properly found that the position of cashier 1 

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

9 See S.J., Docket No. 14-1455 (issued October 23, 2014); S.S., Docket No. 13-0011 (issued March 21, 2013). 

10 Id. 

11 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). 

12 See supra note 8. 

13 See supra note 3. OWCP divided appellant’s employment capacity to earn wages of $362.40 a week by his 

current pay rate of the position held when injured of $1,143.29 per week to find a 32 percent wage-earning capacity. 

It multiplied the pay rate at the time of injury of $1,043.30 by the 32 percent wage-earning capacity percentage. The 

resulting amount of $333.869 was subtracted from appellant’s date-of-injury pay rate of $1,043.30 which provided a 

loss of wage-earning capacity of $709.44 per week. OWCP multiplied this amount by the appropriate compensation 

rate of three-fourths which yielded $532.08 or $2,321.00 every four weeks after adjustments for cost of living. 
6

reflected appellant’s wage-earning capacity effective July 18, 2016 despite his prior election of 

OMP retirement. 

Appellant may request modification of the wage-earning capacity determination, 

supported by new evidence of argument, at any time before OWCP. 

CONCLUSION 

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

effective July 19, 2016 based on his capacity to earn wages in the selected positon of cashier. 

ORDER 

IT IS HEREBY ORDERED THAT the July 18, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 25, 2017 

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