United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.P., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Leesburg, VA, Employer 

__________________________________________ 

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Docket No. 16-1198 

Issued: August 22, 2017 

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

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 May 16, 2016 appellant, through counsel, filed a timely appeal from a December 14, 

2015 merit decision2

 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of the 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

 The Board notes that the record contains a January 27, 2016 merit decision which denied modification of a 

January 8, 2015 decision in which OWCP terminated appellant’s medical benefits and wage-loss compensation for 

the conditions of aggravation of asthma, fatigue, and fibromyositis. As counsel has not appealed this decision, the 

Board will not consider this issue. 

3

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss 

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

customer service representative. 

On appeal counsel contends that OWCP improperly shifted the burden of proof to 

appellant and that the statement of accepted facts (SOAF) provided to the impartial medical 

examiner was inaccurate. She further contends that OWCP provided a second opinion physician, 

a psychiatrist, with leading questions and that the second opinion psychiatrist’s report was stale. 

Finally, counsel contends that the impartial medical examiner determined that appellant could 

work only four hours a day. 

FACTUAL HISTORY 

On September 9, 1978 appellant, then a 26-year-old air traffic controller, filed a traumatic 

injury claim4

 (Form CA-1) alleging that she slipped on water in front of an ice machine in the 

employee cafeteria. OWCP accepted this claim for right hand, bilateral knee, and bilateral ankle 

injuries. Appellant had a recurrence of disability due to her September 9, 1978 injury on 

June 22, 1979 and returned to work on July 6, 1979. 

Appellant filed a traumatic injury claim (Form CA-1) alleging that on December 20, 

19795 she again slipped on a wet floor at work and developed back pain. OWCP accepted this 

claim for chronic lumbosacral strain and bulging disc. Appellant stopped work on July 7, 1980 

and returned to work on July 29, 1980. OWCP thereafter accepted a recurrence of disability due 

to her December 20, 1979 injury on March 11, 1980, but appellant returned to work on 

April 1, 1980. A March 12, 1980 lumbar myelogram showed an L4-5 disc bulge not 

significantly changed since a July 1979 study. Appellant sustained a second recurrence of 

disability due to her December 20, 1979 injury beginning August 3, 1981. 

Appellant filed a traumatic injury claim (Form CA-1) on May 21, 1981 alleging that she 

slipped and fell reinjuring her back. Her physician released her to return to work on 

August 28, 1981. OWCP accepted left ankle strain and lumbosacral strain. Appellant was off 

the employing establishment rolls from September 1981 until January 1984. She was terminated 

on September 14, 1983; however, her termination was subsequently overturned on 

March 30, 1984. 

In an August 15, 1984 decision, OWCP’s hearing representative found that appellant had 

no disability for work after May 21, 1981 due to any employment injury. 

 4

 OWCP File No. xxxxxx483. 

5

 File No. xxxxxx558. 
3

Appellant subsequently filed additional traumatic injury claims, occupational disease 

claims, and claims for wage-loss compensation and medical benefits.6

In an August 11, 1987 letter, counsel informed OWCP that on June 2, 1983 the Fourth 

Circuit Court of Appeals had found that appellant “was the object of sustained and nontrivial 

harassment....” She further noted that the employing establishment knew or should have known 

of the harassment, but made no significant effort to the end the harassment.7

 Counsel contended 

that appellant developed an emotional injury as a result of this harassment. She further 

contended that the employing establishment had treated appellant as a “striker” even though the 

Merit Systems Protection Board (MSPB) found that she was not a strike participant. Finally, in 

the letter counsel detailed appellant’s sexual harassment at the employing establishment. 

Appellant filed an occupational disease claim (Form CA-2) on August 28, 1987 alleging 

intermittent respiratory and cardiac problems, anxiety, chronic fatigue, depression, intermittent 

muscular problems, and temporomandibular joint (TMJ) dysfunction. She provided a detailed 

statement describing the events that contributed to her emotional condition. OWCP developed a 

SOAF noting appellant’s established sexual harassment and the decision by MSPB. In an 

August 13, 1987 decision, however, it denied her claim. Subsequently, on April 23, 1992, 

OWCP accepted the claim for anxiety disorder, fatigue, aggravation of asthma, and 

fibromyositis. Appellant filed claims for wage-loss compensation benefits (Form CA-7) due to 

her accepted conditions. OWCP authorized total disability compensation beginning 

April 6, 1994. It placed appellant on the periodic rolls on December 10, 1998. The employing 

establishment terminated her employment effective January 15, 1999. 

Dr. Mayo F. Friedlis, a Board-certified physiatrist, examined appellant on October 27, 

2009, and April 20 and November 30, 2010, diagnosing right L5 radiculopathy, L4-5 neural 

foraminal stenosis, L4-5 disc bulge, lumbar spondylosis, lumbar facet arthropathy, fibromyalgia, 

chronic fatigue syndrome, and chronic lymphedema. He recommended therapeutic Rolfing, 

massage, and neuromuscular massage for pain. 

Dr. Stephen J. Rojcewicz, Jr., a Board-certified psychiatrist, diagnosed anxiety disorder 

on January 24, 2011. At that time he opined that appellant’s anxiety condition was still present 

and disabled her from all work. 

 6

 On October 26, 1982 appellant filed an occupational disease claim (Form CA-2) alleging that she developed a 

herniated disc at L4-5, back pain, ear problems, and severe anxiety due to harassment at the employing 

establishment; a November 20, 1984 traumatic injury claim (Form CA-1) alleging that on May 27, 1981 she 

developed severe anxiety from persistent harassment by her supervisor; a March 18, 1985 traumatic injury claim 

(Form CA-1) for an emotional condition due to a March 15, 1985 incident; and a September 18, 1985 traumatic 

injury claim (Form CA-1) for an emotional condition that she related to a September 13, 1985 letter about leave use. 

She filed a second occupational disease claim (Form CA-2) on March 20, 1985 alleging that she developed anxiety, 

fatigue, stress, and lower back conditions due to factors of her federal employment. OWCP requested additional 

information from appellant on July 9, 1987 and afforded her 30 days to respond. It denied this case by decision 

dated August 13, 1987.

7 Katz v. Dole, 709 F.2d 251 (1983). 
4

On April 26, 2011 OWCP referred appellant, along with a SOAF and a list of questions, 

for a second opinion evaluation with Dr. Lance Atkinson, Board-certified in occupational 

medicine. The accepted conditions listed in the SOAF were anxiety disorder, fatigue, 

aggravation of asthma, and nonspecific fibromyositis. It further noted that appellant had filed 17 

claims for injuries, but the onset date of the conditions at issue was the claim first reported on 

January 1, 1980. In a May 9, 2011 report, Dr. Atkinson noted that on physical examination he 

did not find any find any evidence of asthma, musculoskeletal abnormalities, or fibromyalgia. 

He opined that appellant’s physical therapy, massage, or Rolfing had not cured her conditions, 

but could be palliative for her chronic lumbar back pain, her fibromyalgia, and her lymphedema.8

OWCP found a conflict of medical opinion between Drs. Atkinson and Friedlis on the 

issue of whether massage therapy should continue and determined that the conflict required 

referral to an impartial medical examiner. It referred her to Dr. Bao T. Pham, a Board-certified 

physiatrist. In a November 6, 2011, report, Dr. Pham opined that physical therapy and Rolfing 

had not provided any significant relief or lessened her degree of disability. He found that 

appellant was disabled from her date-of-injury position, but that she could participate in 

vocational rehabilitation.9

In a May 30, 2012 note, Dr. Rojcewicz opined that appellant had a medical necessity for 

massage therapy as there was a direct correlation between muscle tension, pain, and spasms and 

appellant’s anxiety level. He noted that appellant had adverse reactions to anti-anxiety and 

muscle relaxant medications and that he could not prescribe such medications. 

Dr. Brian C. Turrisi, a Board-certified pulmonologist diagnosed chronic asthma, residual 

sarcoidosis, and lymphedema. He opined that appellant’s asthma was chronic, present, and 

disabling. Dr. Turrisi noted that anxiety, fatigue, and lymphedema aggravated her asthma. On 

June 25, 2012 he opined that the ongoing massage therapy would provide continued relief of 

symptoms directly associated to appellant’s asthma, myalgia, and fatigue. Dr. Turrisi noted that 

appellant could not take medications which would normally be prescribed for her symptoms and 

used massage therapy modalities to control pain and offer relief. 

On August 14, 2012 an OWCP hearing representative found that Drs. Rojcewicz and 

Turrisi created a conflict with Dr. Pham’s report regarding the ongoing need for massage 

therapy. He remanded the case and ordered OWCP to update the SOAF and refer appellant for 

an impartial medical examination. 

OWCP referred appellant, a list of questions, and an updated SOAF for a second opinion 

evaluation with Dr. Anjali Pathak, a Board-certified psychiatrist on December 17, 2012. The 

December 13, 2012 SOAF noted that appellant’s accepted conditions were anxiety disorder, 

fatigue, aggravation of asthma, and nonspecific fibromyositis and also provided an excerpt from 

appellant’s website which listed her campaigns for political office since 2000 and her travel. The 

excerpt from the website noted that she had worked with Congressional Members and staff, 

testified before Congress when requested, and made proposals to Congress for restricting the 

 8

 Dr. Atkinson did not specifically address appellant’s disability for work. 

9

 By decision dated March 16, 2012, OWCP denied authorization for further massage therapy. Counsel requested 

an oral hearing on March 27, 2012. 
5

Federal Aviation Administration under the Department of Defense. The excerpt also noted 

organizing activities including her organization of “Walking for Safety” and organizing a 

petition of “Signatures for Solidarity” collecting nearly 100,000 signatures nationwide. 

OWCP also referred appellant, the December 13, 2012 SOAF, and a list of specific 

questions to Dr. Stuart M. Brooks, Board-certified in occupational medicine, for an impartial 

medical examination to resolve the conflict of medical opinion evidence regarding the ongoing 

need for massage therapy due to her psychiatric conditions. 

Dr. Pathak completed her second opinion report on January 28, 2013. She reviewed the 

SOAF and evaluated appellant’s test results. Dr. Pathak diagnosed anxiety disorder, conversion 

disorder/somatization disorder, and dependent personality disorder. She opined that appellant’s 

anxiety disorder was related to her employment injury. Dr. Pathak found that appellant did not 

require psychiatric interventions and that massage therapy had not improved her psychiatric 

symptoms. She determined that there was no justification to continue massage therapy for her 

anxiety disorder. Dr. Pathak found that appellant’s symptoms of anxiety were chronic, 

pervasive, and likely to interfere with her ability to work at the employing establishment. She 

opined that appellant’s prognosis for return to work was poor. Dr. Pathak concluded that 

appellant was not currently a candidate for vocational rehabilitation. 

In a report dated March 18, 2013, Dr. Brooks, the impartial medical examiner, on the 

issue of the need for massage therapy due to appellant’s orthopedic and pulmonary conditions, 

reviewed the updated SOAF and obtained a history from appellant. He discussed each of 

appellant’s physical conditions. Dr. Brooks determined that massage therapy was not curative. 

He contended “that it borders on biological implausibility to presume that unremitting massage 

therapies provided for more than 18 years, are necessary to treat her proclaimed work-related 

injury/conditions(s).” In response to OWCP’s questions, Dr. Brooks opined that there were no 

objective medical diagnoses causally related to appellant’s injuries at work as described in the 

SOAF and there were no remaining work-related medical conditions. He concluded, “Most of 

her findings relate to subjective complaints and there are few objective medical findings to 

support her contentions.” In a March 19, 2013 work capacity evaluation worksheet (Form 

OWCP-5c), Dr. Brooks found that appellant could return to work with restrictions. He indicated 

by checking a box marked “yes” that she could work eight hours a day with her motivation and 

desire to work as reasons for difficulty in her return. Dr. Brooks then noted that, if appellant was 

unable to work an eight-hour day, she could work four hours a day. He provided restrictions 

indicating that she was allowed to sit for six hours, walk for three hours, stand for four hours, 

and reach for three hours. Dr. Brooks found that appellant was capable of twisting for two hours, 

and bending or stooping for one hour. He indicated that she could operate a motor vehicle for 

four hours at work. Appellant’s lifting was limited to five pounds for three hours a day. She 

could push and pull up to five pounds for four hours a day. Appellant could squat for one hour a 

day, but could not kneel or climb. Dr. Brooks indicated that she required 15-minute breaks every 

two hours. He also noted that she was at maximum medical improvement (MMI) for any listed 

work-related condition. 

On March 27, 2013 OWCP requested clarification from Dr. Pathak. It requested that she 

review the entire SOAF, including appellant’s activities following her 1994 federal work 

stoppage. OWCP noted, “Please discuss the SOAF in its entirety, including the candidacies, 
6

activities, and national as well as international travel. [Appellant] has presented herself to voters 

as an able-bodied retired federal employee and ran for United States Congress several times. 

Given her activities please explain your finding that she is totally disabled.” 

In an April 9, 2013 decision, OWCP denied authorization for massage therapy. Counsel 

requested an oral hearing on April 18, 2013. 

Dr. Pathak provided a supplemental report on April 23, 2013. She opined that appellant’s 

symptoms of anxiety, including feelings of apprehension, irritability, and labiality of affect, as 

well as nightmares and flashbacks, were directly related to her work for the employing 

establishment. Dr. Pathak reviewed appellant’s postemployment activities including running for 

office and traveling abroad. She opined, “After reviewing the additional information provided 

about her activities, such as running for political office, campaigning for the office, and her 

national and international activities, it is clear that [appellant] is not totally disabled. Appellant 

may be able to work for an agency not related to the [employing establishment].” Dr. Pathak 

opined that appellant could participate in vocational rehabilitation and that there were no 

psychiatric work restrictions other than not working for the employing establishment. 

OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits 

in a letter dated May 21, 2013. By decision dated June 19, 2013, it found that appellant had 

forfeited her compensation benefits for the period January 9, 1998 through April 9, 2000 and 

October 21, 2009 through February 1, 2013. OWCP found that appellant had improperly failed 

to report her candidacy for political offices and her work in a travel agency.10

In a decision dated July 11, 2013 and corrected July 22, 2013, OWCP terminated 

appellant’s entitlement to medical and wage-loss compensation benefits for the physical 

conditions of fatigue, aggravation of asthma, and fibromyositis. 

Counsel requested an oral hearing on July 15, 2013 and requested that the oral hearings 

on both the April 9, 2013 and July 22, 2013 decisions be consolidated and heard at the same 

time. 

Dr. Brooks, in a July 30, 2013 supplemental report, opined that appellant was capable of 

performing work at the sedentary level including exerting up to 10 pounds of force occasionally, 

or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, 

including the human body. He noted that appellant could sit most of the time, as well as walk or 

stand for brief periods of time. Dr. Brooks opined that appellant could walk and stand 

occasionally. 

OWCP referred appellant for vocational rehabilitation on August 27, 2013 based on the 

work restrictions provided by Drs. Pathak and Brooks. Appellant met with the vocational 

rehabilitation counselor on September 23, 2013. 

 10 On August 6, 2013 OWCP made a preliminary finding that appellant had received a $457,842.76 overpayment 

because the compensation paid for the period January 9, 1998 through April 9, 2000 and from October 21, 2009 

through February 1, 2013 was forfeited. Appellant requested a prerecoupment hearing on September 4, 2013. The 

forfeiture issue was addressed in a November 13, 2013 decision. 
7

In a November 13, 2013 decision, an OWCP hearing representative found that the issue 

of massage therapy authorization required additional medical development. He also found that 

OWCP had not met its burden of proof to terminate appellant’s wage-loss compensation.11 The 

hearing representative determined that Dr. Brooks’ reports were not entitled to special weight as 

he had not been provided a complete and accurate history of all of the pertinent claims for 

accepted conditions. He directed OWCP to combine appellant’s claims for physical injury,12 and 

to obtain supplemental reports from Dr. Brooks and Dr. Pathak based on a revised SOAF and to 

issue a de novo decision on authorization for continuing massage therapy. The hearing 

representative also reversed the decisions dated July 11 and 22, 2013 which terminated 

appellant’s wage-loss compensation benefits. Appellant appealed to the Board, but it dismissed 

the appeal.13 She again challenged the forfeiture decision with OWCP. 

OWCP formulated an additional SOAF on January 8, 2014 which included the statement 

that appellant had operated her own travel agency and run for political office several times while 

receiving temporary total disability compensation.14 This SOAF also noted that appellant had 

traveled extensively including Canada, Europe, Africa, South America, Australia, New Zealand, 

Israel, and Japan. Counsel objected to the updated SOAF on January 13, 2014. 

OWCP thereafter composed a new SOAF on January 30, 2014. This SOAF listed 

appellant’s accepted conditions due to her sexual harassment claim including anxiety disorder, 

fatigue, aggravation of asthma, and nonspecific fibromyositis. OWCP also specifically noted 

five of appellant’s accepted claims for physical injury including lumbosacral strain, bulging disc 

at L4-5, left ankle sprain, contusion to the face, neck sprain, right shoulder sprain, and left knee 

sprain occurring from 1978 through 1994. It noted that appellant was last treated for these 

conditions in 2002. OWCP further indicated that appellant had stopped her federal employment 

in 1994 and had operated her own travel agency business and ran several times for political 

office while receiving temporary total disability for the conditions set forth in the SOAF. OWCP 

also noted that she had traveled extensively throughout the United States, Canada, Europe, 

Africa, South America, Australia, New Zealand, Israel, and Japan. It concluded that in the fall of 

2013 she traveled to Europe for several weeks while receiving total wage-loss compensation 

 11 On February 20, 2014 counsel contended that OWCP had not established forfeiture or overpayment. Appellant 

provided a February 19, 2014 affidavit noting that she was an investor in Herndon Sterling Travel Service based on 

stocks issued in January 1998. The owner of the travel service substantiated this statement in an affidavit dated 

February 19, 2014. 

12 OWCP’s hearing representative found that appellant had a total of 12 claims including a September 9, 1978 

claim, File No. xxxxxx483 accepted for stain of the lumbosacral joint; a March 3, 1990 claim, File No. xxxxxx625 

accepted for contusions to the face, scalp, and neck; and a January 4, 1994 claim, File No. xxxxxx448 accepted for 

sprain of the neck, lumbar region, right shoulder and upper arm as well as left collateral knee sprain and left calf and 

thigh contusions. He noted that it was not clear whether claims dated February 10 and April 7, 1987 were formally 

accepted. 

13 The Board issued an Order Dismissing Appeal on September 28, 2015 finding that the November 13, 2013 

decision appealed by counsel was not a final adverse decision. Docket No. 14-0487 (issued September 28, 2015). 

14 OWCP listed five additional claims including September 9, 1978, December 20, 1979, March 3, 1990, and 

January 4, 1994 described by an OWCP hearing representative. It also detailed the accepted conditions in the 

April 7, 1987 claim of left ankle sprain and lumbar strain. 
8

benefits. OWCP requested a supplemental report from Dr. Brooks on January 30, 2014 using the 

updated January 30, 2014 SOAF. 

On January 17, 2014 the vocational rehabilitation counselor provided appellant with a job 

placement plan in the positions of a motor vehicle dispatcher, customer service representative, or 

reservation clerk. OWCP authorized 90 days of placement in the selected positions on 

February 4, 2014. Appellant signed the rehabilitation plan from the vocational rehabilitation 

counselor on February 21, 2014. On February 24, 2014 the vocational rehabilitation counselor 

noted that she had conducted a labor market survey of the positions of motor vehicle dispatcher, 

customer service representative, and reservations clerk. 

Counsel objected to the most recent SOAF on February 5, 2014 noting that appellant had 

not operated her own travel agency. 

In his March 10, 2014 supplemental report, Dr. Brooks noted reviewing the January 30, 

2014 SOAF. He reviewed appellant’s accepted injuries including lumbosacral strains in 1978, 

1979, and 1987. Dr. Brooks again opined that appellant’s accepted conditions of anxiety 

disorder, fatigue, aggravation of asthma, fibromyositis, as well as all other accepted conditions 

listed in the updated SOAF had resolved. He determined that it was not appropriate for appellant 

to receive continued massage therapy and that appellant was capable of performing sedentary 

work as he previously reported. 

Dr. Leonard J. Hertzberg, a Board-certified psychiatrist, completed a report on March 10, 

2014 and diagnosed anxiety disorder. He opined that appellant continued to be disabled from 

working at the employing establishment. Dr. Hertzberg noted, “It is not envisioned that 

[appellant] will be fit to work in any capacity and her status is regarded as permanent.” He noted 

that efforts of the vocational rehabilitation counselor to return her to work as a dispatcher “would 

not be feasible as it would be too humiliating and impact negatively upon her self-esteem.” 

By decision dated March 13, 2014, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective that date. On April 18, 2014 it determined that the 

March 13, 2014 decision was issued in error and vacated that decision. 

OWCP issued a notice of proposed termination of appellant’s wage-loss compensation 

and medical benefits on May 6, 2014. 

The vocational rehabilitation counselor completed a report on May 19, 2014 and found 

that the positions of motor vehicle dispatcher, customer service representative, and reservation 

clerk were reasonably available. She submitted a closure report on May 29, 2014 and provided 

the median wages for the selected positions. The vocational rehabilitation counselor determined 

that the median wages were appropriate based on appellant’s extensive experience and 

background as an air traffic controller and dispatcher. 

By decision dated June 19, 2014, OWCP’s Branch of Hearings and Review reversed the 

June 19, 2013 forfeiture decision and set aside the preliminary overpayment finding. The 

hearing representative found that appellant had not worked for or run a travel agency, but instead 

was a passive investor in a travel agency. She further found that there was no tangible 
9

documentation that appellant was actively running any of the campaigns for public office 

identified by OWCP. 

On July 21, 2014 counsel noted that the hearing representative found that appellant was 

only a passive investor in a travel agency and asked that OWCP alter the SOAF to reflect this 

finding. She also requested that appellant’s bids for political office be excluded from the SOAF. 

OWCP again updated its SOAF on August 18, 2014. This SOAF listed appellant’s 

accepted conditions including anxiety disorder, fatigue, aggravation of asthma, and fibromyositis 

due to her accepted emotional conditions. It also noted appellant’s accepted physical conditions, 

from five specific claims, of lumbosacral strains, bulging disc at L4-5, left ankle sprain, 

contusion to the face, and sprains of the neck, right shoulder and left knee. OWCP noted that 

appellant had run for political office and traveled extensively throughout the United States, 

Canada, Europe, Africa, South America, Australia, New Zealand, Israel, and Japan while 

receiving compensation for total disability. It reported appellant’s attempts at public office, but 

removed the reference to the travel agency. 

On August 27, 2014 the vocational rehabilitation counselor closed appellant’s vocational 

services noting that she had not obtained employment within 90 days of placement. She found 

that appellant was capable of performing sedentary work and that the positions of customer 

service representative, reservation clerk, and motor vehicle dispatcher were vocationally and 

medically appropriate. The counselor noted that appellant had several years of coursework 

beyond high school at two different colleges and that she worked in many different 

clerical/administrative positions prior to her work as an air traffic controller. The labor market 

survey dated January 16, 2014 found that the three selected positions existed in sufficient 

numbers within a reasonable commuting area based on actual employer contacts and the most 

recent data from the state. The vocational rehabilitation counselor concluded that based on 

appellant’s education, work experience, and transferable skills, she should be capable of earning 

the median wages in the identified positions which ranged from $431.60 to $740.40 per week. 

Counsel continued to protest the SOAF, on September 17, 2014 alleging that reference to 

appellant’s political activities were prejudicial. 

OWCP terminated appellant’s wage-loss compensation and medical benefits effective 

January 8, 2015 for her physical conditions of aggravation of asthma, fatigue, and fibromyositis. 

It noted that medical benefits and wage-loss compensation for anxiety disorder continued.

On January 27, 2015 OWCP proposed to reduce appellant’s compensation benefits as she 

was no longer totally disabled and had the capacity to earn wages as a customer service 

representative at the rate of $431.60 per week. It noted that her wage-earning capacity was less 

than the current pay of the job she held when injured. It relied on Dr. Pathak’s January 28 and 

April 23, 2013 reports for the finding as to her ability to return to gainful employment. OWCP 

afforded appellant 30 days to respond. 

In a March 2, 2015 decision, OWCP reduced appellant’s wage-loss benefits based on her 

capacity to earn wages as a customer service representative. It based her work restrictions on 

those set forth in the April 23, 2013 report of Dr. Pathak. OWCP found that the position of 
10

customer service representative was medically suitable, vocationally suitable based on the 

findings of the vocational rehabilitation counselor, and reasonably available in her commuting 

area. 

On March 30, 2015 counsel requested an oral hearing regarding the March 2, 2015 wageearning capacity decision. She later changed this to a request for a review of the written record. 

Counsel contended that OWCP had the burden of proof to establish that the constructed positions 

fairly and reasonably represented appellant’s wage-earning capacity. She further contended that 

the medical evidence from Dr. Pathak was stale, that the medical reports were based on an 

incorrect SOAF, and that the selected position was not medically suitable. 

By decision dated December 14, 2015, OWCP’s hearing representative found that the 

March 2, 2015 wage-earning capacity determination should be affirmed. 

LEGAL PRECEDENT 

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

modification of compensation benefits.15 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.16

Section 8115 of FECA17 provides that wage-earning capacity is determined by the actual 

wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning 

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

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

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

factors or circumstances which may affect her wage-earning capacity in his disabled condition.18 

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

be based on a reasonably current medical evaluation.20 In determining an employee’s wageearning capacity based on a position deemed suitable, but not actually held, OWCP must 

 15 James M. Frasher, 53 ECAB 794 (2002); J.E., Docket No. 16-0006 (issued November 16, 2016). 

16 20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004). 

17 5 U.S.C. § 8115. 

18 Id. 

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

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

consider the degree of physical impairment, including impairments resulting from both injuryrelated and preexisting conditions, but not impairments resulting from postinjury or subsequently 

acquired conditions. 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.21

 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 Occupational 

Titles 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. Shadrick22 will result in the percentage of the employee’s loss of 

wage-earning capacity. The basis rage of compensation paid under FECA is 66 2/3 percent of the 

injured employee’s monthly pay.23

ANALYSIS 

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

benefits based on her ability to earn wages in the selected position of customer service 

representative. 

OWCP accepted appellant’s claims for the conditions of right hand, bilateral knee, and 

bilateral ankle injuries, chronic lumbosacral strain and bulging disc, left ankle strain and 

lumbosacral strain, anxiety disorder, fatigue, aggravation of asthma, and fibromyositis. It 

terminated benefits for all but the psychiatric condition on January 8, 2015. In a March 2, 2015 

decision, OWCP found that the selected position of customer service representative fairly and 

reasonably represented appellant’s wage-earning capacity, basing its determination on the 

restrictions set forth by Dr. Pathak for her psychiatric condition claim. The March 2, 2015 

decision was affirmed on December 14, 2015 by a hearing representative who found that OWCP 

had properly determined appellant’s wage-earning capacity. 

Dr. Brooks, in a July 30, 2013 report, opined that appellant was capable of performing 

work at the sedentary level, including exerting up to 10 pounds of force occasionally, or a 

negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, 

including the human body. He noted that appellant could sit most of the time, as well as walk or 

stand for brief periods of time. Dr. Brooks opined that appellant could walk and stand 

occasionally. In his March 10, 2014 report, Dr. Brooks reviewed the January 30, 2014 SOAF 

 21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.1 

(February 2011); John D. Jackson, supra note 16. 

22 5 ECAB 376 (1953). 

23 Karen L. Lonon-Jones, 50 ECAB 293 (issued March 18, 1999). 
12

and found that appellant could perform sedentary work. The Board finds that Dr. Brooks’ 

reports are based on a proper factual background and contain sufficient medical reasoning to 

establish that appellant was capable of performing a sedentary position for eight hours a day. 

In her August 23, 2013 report, Dr. Pathak, OWCP’s second opinion physician, opined 

that appellant could participate in vocational rehabilitation and that she had no work restrictions 

for her psychiatric condition, except that she could not return to work at the employing 

establishment. The Board finds that this report was based on a proper factual background and is 

sufficiently well-reasoned to represent the weight of the medical evidence and establish that 

appellant was capable of working in the constructed position of customer service representative. 

Appellant submitted a March 10, 2014 report from Dr. Hertzberg finding that she was 

totally disabled as returning to work as a dispatcher would be “humiliating” and “negatively 

impact her self-esteem.” The Board finds, however, that this report does not establish 

appellant’s disability for work in the selected position of customer service representative. 

Dr. Hertzberg’s reasoning for finding appellant could not perform the selected position is not 

related to her employment injury, but instead it is considered self-generated and not compensable 

as it amounts to frustration over not being able to hold a particular position or to work in a 

particular environment.24 

In development of the claim OWCP properly referred appellant for vocational 

rehabilitation as both Dr. Pathak’s and Dr. Brooks’ reports established that she was no longer 

totally disabled due to residuals of her employment injury.25 In addition, OWCP properly found 

that appellant had the capacity to perform the duties of a customer service representative. The 

position is classified as sedentary work requiring occasional lifting of up to 10 pounds, which is 

within the restrictions set forth by Dr. Brooks. While Dr. Brooks’ work status report listed an 

ability to work eight hours in a sedentary position, and subsequently noted an ability to work 

four hours, the Board finds that his opinion was fully premised upon the determination that 

appellant’s work injuries had fully resolved. He primarily noted that she was capable of a full 

eight-hour day, but with several activities during that day restricted to four or fewer hours each. 

Therefore Dr. Brooks’ opinion is a proper basis for the finding that appellant had the capacity to 

perform the duties of a customer service representative. Following its proposed reduction of her 

compensation, appellant did not submit any rationalized medical evidence to establish that she 

was unable to perform the sedentary position. The medical evidence, consequently, establishes 

that she has the requisite physical ability to earn wages as a customer service representative.26

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

not only physical limitations, but also take into account appellant’s work experience, age, mental 

 24 Martha L. Watson, 46 ECAB 407, 418 (1995); J.M., Docket No. 16-0312 (issued June 22, 2016). See also 

Merle J. Marceau, 53 ECAB 197, 203 (2001) (while appellant contended that the selected position would not fully 

utilize his skills, the Board found that determining an employee’s wage-earning capacity was not contingent upon 

such factors). 

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

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

capacity, and educational background.27 The rehabilitation counselor determined that appellant 

had the skills necessary to perform the position of customer service representative based on her 

several years of coursework beyond high school at two different colleges and her work in many 

different clerical/administrative positions prior to her work as an air traffic controller. The 

rehabilitation counselor found that the position existed in sufficient numbers within a reasonable 

commuting area based on actual employer contacts and the most recent data from the state. The 

rehabilitation counselor concluded that based on appellant’s education, work experience, and 

transferable skills that she was capable of earning the median wages in the identified positions 

which ranged from $431.60 to $740.40 per week. As the rehabilitation counselor is an expert in 

the field of vocational rehabilitation, OWCP may rely on her opinion in determining whether the 

job is vocationally suitable and reasonably available.28 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 she had the capacity to perform 

the position of customer service representative.29 OWCP also properly determined her loss of 

wage-earning capacity in accordance with the formula developed in Shadrick and codified at 20 

C.F.R. § 10.403. It, therefore, correctly found that the position of customer service 

representative reflected appellant’s wage-earning capacity effective March 2, 2015. 

On appeal counsel asserts that OWCP improperly shifted the burden of proof for 

modification of wage-loss compensation benefits to appellant. The Board finds this assertion is 

without merit. The burden of terminating or modifying compensation benefits, once a claim has 

been accepted, falls onto OWCP.30 The record of evidence establishes that OWCP obtained the 

necessary medical opinions from Drs. Brooks and Pathak prior to proposing modification of 

benefits. At all times the burden remained upon OWCP to develop the medical evidence in the 

process of determining appellant’s wage-earning capacity. 

Counsel further asserts on appeal that OWCP was in error to rely upon the medical 

opinions of Dr. Brooks as to the status of appellant’s physical conditions, claiming that he relied 

upon an improper SOAF and was prejudiced by leading questions and materials included in the 

SOAF, including notation of appellant’s travels, organizing activities, and political campaigns. 

The Board finds counsel’s challenges to the medical opinions of Dr. Brooks to be without merit. 

The January 30, 2014 SOAF, upon which Dr. Brooks relied in providing his medical opinion, is 

found to be a proper SOAF for purposes of obtaining an accurate assessment of appellant’s 

current ability to return to an employment position. The January 30, 2014 SOAF was sufficient 

to provide a framework for the physician to conduct his own physical examination of appellant 

and formulate his own independent medical opinion as to her ability to return to work.31 As the 

Board has previously held, a physician’s report should be excluded when there is evidence that 

OWCP may have influenced the opinion of the physician, such as through leading questions or 

 27 Id. 

28 C.S., Docket No. 17-0496 (issued May 25, 2017). 

29 Id. 

30 Supra note 15. 

31 See Abe E. Scott, 45 ECAB 164, 174 (1993). 
14

telephone contact.32 The Board finds the information contained in the SOAF at issue to be an 

accurate, factual presentation of appellant’s activities while on total disability compensation and 

provided a proper background for an opinion in this case, and thus was not a prejudicial 

disclosure of information. 

Finally, counsel asserts on appeal that the medical opinion of Dr. Pathak was stale and 

therefore an improper foundation for the finding that appellant was capable of the selected 

position of customer service representative. The Board finds that Dr. Pathak’s opinion was 

limited to a determination that, due to her knowledge of appellant’s postinjury activities coupled 

with her psychiatric evaluation, appellant was not totally disability and was able to participate in 

vocational rehabilitation activities. The Board finds that as Dr. Pathak’s April 23, 2013 report 

was less than two years old when considered, it is not considered stale under the facts of this 

case.33 Counsel did not provide any evidence or argument to contest Dr. Pathak’s opinion that 

appellant was capable of participation in vocational rehabilitation, especially in light of the fact 

that she did successfully participate in such activity. 

For the reasons set forth herein, the Board finds that OWCP properly reduced appellant’s 

compensation benefits based on the reports of Drs. Brooks and Pathak. 

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 monetary 

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

representative. 

 32 See R.A., Docket No. 10-844 (issued December 22, 2010). 

33 G.M., Docket No. 16-1032 (issued January 4, 2017). 
15

ORDER 

IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 22, 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