United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.C., Appellant

and

U.S. POSTAL SERVICE, COLLEGE STATION, 

Fairbanks, AK, Employer

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Docket No. 17-0562

Issued: November 17, 2017

Appearances: Case Submitted on the Record

Coby Jones, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 17, 2017 appellant, through his representative, filed a timely appeal from a 

July 21, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

Pursuant to the Federal Employees’ Compensation Act3(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 Appellant timely requested oral argument before the Board. By order dated July 5, 2017, the Board exercised its 

discretion and denied the request as the matter could be adequately adjudicated based on a review of the case record. 

Order Denying Oral Argument, Docket No. 17-0562 (issued July 5, 2017).

3

5 U.S.C. § 8101 et seq.
2

ISSUE

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

December 17, 2014, based on its finding that he had the capacity to earn wages in the selected 

position of general clerk. 

FACTUAL HISTORY

On December 14, 2007 appellant, then a 54-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his hip and left shoulder on that date while in the 

performance of duty. He stopped work on December 15, 2007. OWCP accepted the claim for 

lumbar sprain, a sprain of the left shoulder and upper arm, left bicipital tenosynovitis, a left 

superior glenoid labrum lesion, and a permanent aggravation of lumbosacral spondylosis at L5-

S1 without myelopathy. 

On March 14, 2008 appellant accepted a limited-duty position at the employing 

establishment. After authorized left shoulder surgery on April 29, 2008, he again resumed 

modified employment. Appellant stopped work again on May 27, 2009 and did not return.4 

OWCP paid him wage-loss compensation beginning August 4, 2009.

OWCP, by letter dated August 2, 2012, referred appellant to Dr. Douglas Bald, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated September 21, 

2012, Dr. Bald discussed the history of a December 14, 2007 work injury and reviewed the 

medical evidence of record. He diagnosed a left shoulder and upper arm strain, left shoulder 

biceps tenosynovitis, a left shoulder superior glenoid labral lesion stable and stationary after 

surgery, lumbar sprain, preexisting degenerative disc disease, and a permanent aggravation of 

lumbosacral spondylosis without myelopathy at L5-S1. Dr. Bald opined that appellant was 

unable to work as a letter carrier due to permanent restrictions. He found that he could 

participate in vocational rehabilitation and recommended a functional capacity evaluation (FCE). 

Appellant underwent an FCE on November 7, 2012. The evaluator determined that he 

could work at “a light demand with limitations on frequent material handling as well as 

prolonged or constant standing or walking activities.”

In a November 16, 2012 addendum, Dr. Bald reviewed the FCE and concurred with the

findings. He advised that appellant could work in a light-duty capacity lifting, pushing, and 

pulling 15 pounds regularly and 20 pounds occasionally. In a work restriction capacity 

evaluation (OWCP-5c) dated December 7, 2012, Dr. Bald found that he could work 8 hours per 

day sitting for 4 hours, walking and standing for 2 hours, and lifting up to 25 pounds for eight 

hours with a 15-minute break every 2 to 3 hours.

 

4 On September 14, 2009 OWCP denied appellant’s claim for compensation (Form CA-2) for total disability 

beginning August 4, 2009. In a November 25, 2009 decision, a hearing representative vacated the September 14, 

2009 decision and accepted that appellant was totally disabled as of August 4, 2009 due to his December 14, 2007 

work injury. 
3

On February 27, 2013 OWCP referred appellant for vocational rehabilitation. On May 7, 

2013 it reassigned him to another vocational rehabilitation counselor. 

In a June 8, 2013 vocational rehabilitation report, the vocational rehabilitation counselor 

noted that appellant had completed high school, worked as a mail carrier for 28 years, and 

worked as a bartender. He did not know how to type or use a computer.

On December 18, 2013 OWCP’s rehabilitation specialist approved training classes for 

appellant from January 20 to May 30, 2014 in computer keyboarding and an introduction to 

computers with the goal of returning him to work as a clerk.5

The vocational rehabilitation specialist noted on January 7, 2014 that appellant was 

approved for computer training, but was missing three fingers to the first knuckle of his right 

hand. The vocational rehabilitation counselor confirmed that he was missing the tips of his 

fingers due to an accident and advised that she did not know if it would affect his ability to type. 

Appellant underwent an evaluation by a psychological associate on January 23, 2014 at 

the request of the vocational rehabilitation counselor. The evaluator noted that appellant

sustained an injury to his right hand in 2000 which “resulted in the fingertips of his middle, ring, 

and pinky fingers being severed.” Appellant was diagnosed with Hepatitis C in September 2007 

and with Parkinson’s disease in February 2008, though he began to have symptoms of 

Parkinson’s disease two years before the diagnosis. The evaluator noted that appellant had 

“significant tremoring of his right arm and hand, dysarthria, impaired balance (requiring the use 

of a cane), and reported back and leg pain.” He recommended voice recognition software if 

using a computer, but noted that appellant’s dysarthria made it difficult to attain speech accuracy. 

The evaluator advised that “[appellant’s] ability to keyboard will be much more affected by the 

Parkinson’s symptoms than the severed fingertips.” 

The vocational rehabilitation counselor, in a report dated June 6, 2014, noted that 

appellant’s instructor advised her on May 13, 2014 that he could not keep up in class due to his 

Parkinson’s disease and the injury to his hand.6 The instructor indicated that he would pass 

appellant “based on his knowledge versus his performance.”

In a duty status report dated July 3, 2014, Dr. Michael Swenson, a Board-certified 

internist, diagnosed chronic back pain and found that appellant was disabled from employment. 

On September 14, 2014 the vocational rehabilitation counselor completed a job 

classification (Form OWCP-66) for the position of clerk, general. The position required light 

strength and frequent reaching, handling, and fingering. The vocational rehabilitation counselor

noted that the FCE results showed that appellant had limitations on frequent material handling. 

 

5 On July 2, 2013 OWCP’s rehabilitation specialist informed the rehabilitation counselor that the second opinion 

found light lifting restrictions, but also that appellant could not sit or stand more than four hours per day, which 

constituted sedentary restrictions. 

6

In a formal training evaluation report, appellant’s training school indicated that his progress typing was slower 

than others most likely due to his handicap, but that he was passing. On June 2, 2014 the vocational rehabilitation 

counselor advised that the instructor indicated that he had passed all of his classes and would obtain a certificate. 
4

She found that appellant met the specific vocational preparation due to his work history and 

computer training and that the position was available in adequate numbers in his geographical 

area at a weekly wage of $531.20 based on state employment information.

OWCP, on October 16, 2014, notified appellant of its proposed reduction of his 

compensation based on its finding that he could earn wages as a general clerk, Department of 

Labor’s Dictionary of Occupational Titles (DOT) No. 209.562.010, earning $531.20 per week. 

It found that Dr. Bald’s opinion constituted the weight of the medical evidence and established 

that appellant had the capacity to work in the selected position. OWCP further determined that 

the position was vocationally suitable based on the findings of the vocational rehabilitation 

counselor.

In a report dated October 9, 2014, received by OWCP on October 27, 2014, Dr. Carlo 

Bellabarba, a Board-certified orthopedic surgeon, discussed appellant’s symptoms of back and 

left leg pain beginning with a fall in 2007. He related that imaging studies showed “left-sided 

severe foraminal stenosis at L4-5 and L5-S1.” 

By decision dated December 16, 2014, OWCP reduced appellant’s compensation based 

on its finding that he had the vocational and physical capacity to earn wages as a general clerk at 

a rate of $531.20 per week, effective December 17, 2014. Utilizing the formula set forth in 

Albert C. Shadrick,

7

it found that he had a wage-earning capacity of 38 percent. 

In a March 21, 2014 report, received by OWCP on December 13, 2015, Dr. Janice 

Onorata, a Board-certified neurologist, advised that she evaluated appellant on February 19, 

2008 for a right hand tremor that began two years earlier. Appellant’s symptoms were consistent 

with Parkinson’s disease and included “an intermittent resting tremor, cogwheel rigidity, masked 

facies, decreased blink rate, and hypophonia.” Dr. Onorata related, “Again, since [appellant’s] 

symptoms had been present for two years prior to my initial evaluation, I suspect his Parkinson’s 

disease actually started in 2006.”

Dr. Onorata, in a report dated December 10, 2014, indicated that appellant received a 

formal diagnosis of Parkinson’s disease in 2008. She related, “By [his] history, he [stated that]

his tremor started in 2006. Based on the progression of the disease, i.e., the fact that it is 

bilateral, it is probable that his disease could have started back in 2006.” Dr. Onorato found that 

appellant would have difficulty typing or writing and that it was “highly doubtful at this time that 

he would be employable.”

On January 4, 2015 Dr. Cary S. Keller, an orthopedic surgeon, asserted that appellant’s 

degenerative disc disease had progressed and that he should not work.

On December 14, 2015 appellant, through his representative, requested reconsideration. 

He contended that the position of general clerk was outside of the restrictions set forth by

Dr. Bald and the FCE as it required frequent fingering. Appellant’s representative also asserted 

that Dr. Bald’s report was stale and that appellant had limitations from preexisting Parkinson’s 

disease.

 

7

5 ECAB 3767 (1953); codified by regulation at 20 C.F.R. § 10.403.
5

Dr. Peter S. Jiang, a Board-certified internist, in a report dated January 21, 2016, 

diagnosed lumbar disc disease and neural foraminal narrowing on the left at L5. He provided 

pain management treatments on March 21, June 21, August 15 and December 13, 2016.

In a decision dated July 21, 2016, OWCP denied modification of its December 16, 2014 

decision. 

On appeal appellant’s representative contends that OWCP failed to consider that the 

position was not within his physical capability as it required frequent fingering and that the 

medical evidence it relied upon in reaching its loss of wage-earning capacity determination was 

stale.

LEGAL PRECEDENT

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

modification of compensation benefits.8 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 wageearning capacity.9

Section 8115 of FECA and section 10.520 of OWCP regulations provide that wageearning 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 wage-earning capacity or the employee has no actual earnings, the 

wage-earning capacity is determined with due regard to the nature of the injury, the degree of 

physical impairment, the employee’s usual employment, age, qualifications for other 

employment, the availability of suitable employment, and other factors or circumstances, which 

may affect his or her wage-earning capacity in the disabled condition.10

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

be based on a reasonably current medical evaluation.12

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’s Dictionary of 

 

8

James M. Frasher, 53 ECAB 794 (2002).

9

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

10 5 U.S.C. § 8115; 20 C.F.R. § 10.520; see T.O., 58 ECAB 377 (2007).

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

12 See John D. Jackson, supra note 9.
6

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

capabilities with regard to his 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.13 

Finally, application of the principles set forth in Albert C. Shadrick14 will result in the percentage 

of the employee’s loss of wage-earning capacity.

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 postinjury or subsequently acquired conditions.15 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 and for which appellant may receive compensation.16

ANALYSIS

OWCP accepted that appellant sustained lumbar sprain, a sprain of the left shoulder and 

upper arm, left bicipital tenosynovitis, a left superior glenoid labrum lesion, and a permanent 

aggravation of lumbosacral spondylosis at L5-S1 without myelopathy due to a December 14,

2007 employment injury. It paid him compensation for total disability beginning August 2009.

OWCP reduced appellant’s compensation effective December 17, 2014 after finding that 

he had the capacity to earn wages in the selected position of clerk, general. It determined that the 

September 21, 2012 report from Dr. Bald constituted the weight of the medical evidence and 

established that appellant had the physical ability to perform the position. 

Dr. Bald based his opinion regarding appellant’s ability to work on a September 21, 2012 

examination. He provided a supplemental report on November 12, 2012 following a 

November 2012 FCE. The Board has had occasion to evaluate the probative value of 

noncontemporaneous medical reports, however, because cases differ, in their factual presentation 

it has not adopted a rigid standard. In J.A.,

17 the Board held that medical reports from 

November 2010 were of limited probative value regarding the claimant’s medical condition as of 

October 2012. In G.M.,

18 given the facts in that case the Board held that a medical report dated 

May 14, 2013, more than two years before OWCP reduced the claimant’s compensation 

effective July 21, 2015, was of insufficient probative value to rely on in reducing compensation 

as it was stale. 

 

13 See supra note 8.

14 5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

15 See B.W., Docket No. 15-1709 (issued August 16, 2016); James Henderson, Jr., 51 ECAB 268 (2000).

16 See B.W., id.

17 Docket No. 13-1657 (issued February 3, 2014).

18 Docket No. 16-1032 (issued January 4, 2017).
7

Dr. Bald examined appellant on September 21, 2012 and OWCP reduced his 

compensation on December 17, 2014, after the second opinion examination. The length of time 

between Dr. Bald’s examination and the determination to reduce wages, in this case, is 

particularly important due to alleged progression of appellant’s work-related and nonworkrelated medical conditions as set forth in the medical reports of Drs. Bellabarba, Onorata, Keller, 

and Jiang, all of which were dated subsequent to the second opinion examination. Consequently, 

the medical evidence on which OWCP based its reduction of compensation was stale.19 The 

Board, therefore, will reverse the reduction of appellant’s compensation.

CONCLUSION

The Board finds that OWCP improperly reduced appellant’s compensation effective 

December 17, 2014, based on its finding that he had the capacity to earn wages in the selected 

position of general clerk. 

ORDER

IT IS HEREBY ORDERED THAT the July 21, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 17, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

19 Id.