United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, OR, Employer 

__________________________________________ 

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Docket No. 15-1861 

Issued: October 3, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 15, 2015 appellant, through counsel, filed a timely appeal from a May 11, 

2015 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. 

ISSUE 

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

benefits based on her capacity to earn wages in the constructed position of production assembler. 

 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

FACTUAL HISTORY 

On November 9, 2009 appellant, then a 54-year-old part-time mail processing clerk, filed 

a traumatic injury claim (Form CA-1) alleging that on November 6, 2009 she sustained a right 

shoulder injury. She reported that her foot caught on webbing, causing her to lose her balance. 

When she grabbed a general purpose container (GPC) to keep from falling, her right shoulder 

popped. OWCP accepted the claim for closed dislocation of the right shoulder, other joint 

derangement of the right shoulder, and dislocation of the right shoulder. On February 10, 2010 

appellant underwent right shoulder arthroscopic rotator cuff repair and subacromial 

decompression performed by Dr. Stuart Montgomery, a Board-certified orthopedic surgeon. On 

June 30, 2010 she underwent a right shoulder arthroscopy, manipulation, lysis of adhesions, 

arthroscopic debridement, and arthroscopic redo subacromial decompression performed by 

Dr. Montgomery. Appellant stopped work and received wage-loss compensation. She was 

placed on the periodic rolls effective June 5, 2011.3

In a February 29, 2012 physical capacity evaluation, Patrick Pua, a physical therapist, 

reported that appellant had been referred for physical therapy by Dr. Montgomery to determine 

her current function and ability to return to work. Mr. Pua reported that appellant could sit for 

one hour at a time for six to seven hours per day, could stand for two hours at a time, and could 

walk for two hours at a time within an eight-hour day. He noted that sitting was limited to one 

hour at a time due to shoulder pain and that material handling should be restricted to light level 

(20 pounds) on an occasional basis for lifting, except for overhead lifting which was at a 

sedentary level restricted to 10 pounds. 

In an April 9, 2012 medical report, Dr. Montgomery provided an impairment rating and 

reported that appellant had reached maximum medical improvement. He also noted that her final 

work restrictions would be based on her physical capacities evaluation. 

By letter dated August 1, 2012, OWCP notified appellant that she was being referred for 

vocational rehabilitation as Dr. Montgomery indicated that she was capable of returning to work 

with restrictions. 

On September 11, 2012 appellant was again referred for a functional capacity evaluation 

to determine her current work tolerances. Appellant was found to be in the “light-medium” 

range of physical demands. On October 17, 2012 the vocational rehabilitation counselor 

completed a transferable skills analysis and identified target positions for appellant using the 

FCE results and work history. 

By letter dated November 27, 2012, OWCP notified appellant that the target positions of 

retail clerk and production assembly worker had been identified as vocationally and medically 

suitable. It advised her that she would be provided with 90 days of vocational placement 

services starting on December 1, 2012, and if placement services were not successful at the end 

 3

 OWCP noted the physical demands of the date of injury position, mail processing clerk, were heavy lifting up to 

70 pounds, heavy carrying 45 pounds and over, straight pulling, reaching above the shoulder, use of both hands, 

walking, standing, and repeated bending. 
3

of the 90-day period, OWCP would reduce compensation benefits to reflect the wage-earning 

capacity in a targeted position. 

Appellant actively participated in the job search, but her efforts were unsuccessful. 

Placement services ended on March 1, 2013. 

On May 23, 2013 vocational rehabilitation services were terminated without job 

placement. The vocational rehabilitation counselor noted that appellant was capable of earning 

$582.40 per week ($14.56 per hour) as a production assembler (DOT #706.687.010).4

By letter dated May 30, 2013, OWCP proposed to reduce appellant’s compensation 

benefits based on her capacity to earn wages as a production assembler. It found that the 

position was medically and vocationally consistent with appellant’s medical restrictions and 

work experience. OWCP noted that the labor market survey prepared by the rehabilitation 

counselor indicated that the position was reasonably available in the local labor market and that 

the entry-level wage was $582.40 per week which was equal to or greater than the current pay of 

the job held at the time of injury. Therefore, it would result in a return to work with no loss of 

wage-earning capacity and, accordingly, her compensation would be reduced to zero. OWCP 

informed appellant that she could submit additional evidence or argument within 30 days either 

in writing or electronically. Appellant did not respond to the proposed reduction. 

By decision dated July 10, 2013, OWCP reduced appellant’s compensation benefits, 

effective July 11, 2013, based on her capacity to earn wages as a production assembler, which 

yielded a zero percent loss of wage-earning capacity. 

On July 15, 2013 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

In an August 19, 2013 note, Dr. Montgomery indicated that the “same work restrictions” 

applied. In medical reports dated August 19 through October 10, 2013, he noted an exacerbation 

of post-traumatic rotator cuff tendinitis. 

By decision dated November 21, 2013, the Branch of Hearings and Review vacated the 

July 10, 2013 decision and remanded the case for further development. It found that appellant 

was referred to vocational rehabilitation services without accepted work tolerances in the 

medical record. While a functional capacity evaluation had been secured, OWCP failed to 

complete the medical development of work tolerances by securing an opinion from a qualified 

 4

 The Department of Labor, Dictionary of Occupational Titles (DOT) describes the position of production 

assembler (DOT #706.687.010) as follows, “Performs repetitive bench or line assembly operations to mass-produce 

products, such as automobile or tractor radiators, blower wheels, refrigerators, or gas stoves: Places parts in 

specified relationship to each other. Bolts, clips, and screws cements or otherwise fastens parts together by hand, or 

using hand tools or portable power tools. May tend machines, such as arbor presses or riveting machine, to perform 

force fitting or fastening operations on assembly line. May be assigned to different workstations as production 

needs require. May work on line where tasks vary as different model of same article moves along line. May be 

designated according to part or product produced.” Strength level is considered light and the position required 

frequent reaching, handling, fingering, and use of near acuity; and occasional stooping, crouching, and use of depth 

perception and accommodation. 
4

physician and improperly used the work capacities offered by the occupational therapist in 

identifying target positions. The case was remanded to obtain a medical opinion on the 

suitability of the target position from a treating physician or second opinion examiner. 

On remand, OWCP referred appellant to Dr. Aleksandar Curcin, a Board-certified 

orthopedic surgeon, for a second opinion on the suitability of the target position. Appellant was 

evaluated on February 8, 2014. Dr. Curcin provided physical examination findings, a history of 

injury, and review of medical and diagnostic reports. He reported that residuals from appellant’s 

work-related injury included continued pain and limited range of motion which was disabling her 

from returning to her date-of-injury job. Dr. Curcin further reported that she was capable of 

handling paperwork in a modified-duty position. He stated that he disagreed with her 

physician’s restrictions, especially since she “passed the requirements to get back to working.” 

In an attached OWCP work capacity evaluation (OWCP-5c), Dr. Curcin provided permanent 

work restrictions of no reaching and no reaching above the shoulder, and restrictions of pushing, 

pulling, and lifting no more than 10 pounds for zero to two hours per day. 

By letter dated March 10, 2014, OWCP requested clarification from Dr. Curcin regarding 

whether appellant was capable of performing work in the light category as assembly production 

or retail sales clerk. It provided the job descriptions and stipulated the demands of light work.5

In a March 18, 2014 supplemental report, Dr. Curcin responded that after reviewing the 

job analyses for assembly production and retail sales clerk, appellant was capable of performing 

work in the light category. 

On April 24, 2014 the vocational rehabilitation specialist, provided an updated labor 

market survey for production assembler and retail sales clerk. She noted that based on the 

reports of Dr. Curcin, these positions remained consistent with appellant’s physical limitations, 

skills, and abilities. According to the Oregon Labor Market Information System (OLMIS), 

appellant was capable of earning $9.19 per hour as a retail sales clerk and $16.52 per hour as a 

production assembler. The vocational rehabilitation specialist indicated that the wages were 

based on the Occupational Employment statistics for May 2013 from the United States 

Department of Labor, Bureau of Labor Statistics. 

On June 10, 2014 OWCP proposed to reduce appellant’s compensation to zero based on 

her capacity to earn wages as a production assembler. It determined that the duties of the 

production assembler position, based on the DOT, were within her work capacity, based on the 

work restrictions provided by Dr. Curcin, and that the position was reasonably available within 

her commuting area. OWCP further noted that the position was found to be vocationally suitable 

based on a vocational assessment and transferable skills analysis that showed she had significant 

 5

 Light Work -- Light Work involves exerting up to 20 pounds of force occasionally or up to 10 pounds of force 

frequently, or a negligible amount of force constantly to move objects. Physical demand requirements are in excess 

of those for sedentary work. Even though the weight lifted may be only a negligible amount, a job/occupation is 

rated as light work when it requires: (1) walking or standing to a significant degree; (2) sitting most of the time 

while pushing or pulling arm or leg controls; or (3) working at a production rate pace while constantly pushing or 

pulling materials even though the weight of the materials is negligible. (The constant stress and strain of 

maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a 

worker even though the amount of force exerted is negligible.) 
5

background in production work and the position was consistent with her physical limitations, 

skills, and abilities. It advised appellant that she was capable of earning greater than the entry 

level wage based on her prior 15 years of experience and skills, and thus determined that she was 

capable of earning $660.80 per week. By utilizing the Shadrick formula,6

 OWCP recommended 

that appellant’s wage-loss compensation be reduced to zero as she was no longer totally disabled 

and the position of production assembler was medically and vocationally suitable, and 

represented her wage-earning capacity. It informed her that she could submit additional 

evidence or argument within 30 days either in writing or electronically. 

In support of her claim, appellant provided Dr. Montgomery’s previously submitted 

April 9, 2012 report as well as a new June 12, 2014 report. In his June 12, 2014 report, 

Dr. Montgomery reported that appellant had previously been cleared for a light-duty job which 

included 20-pound occasional lifting and 10-pound frequent lifting. His recommendation for 

work restrictions remained the same with a light-duty job. Dr. Montgomery noted that, if the 

work analyses for assembly production and retail clerk are within that limit, then he would 

release her to do those jobs. If the positions were beyond that, then he did not think that was 

something she was likely able to do. Dr. Montgomery concluded that appellant’s shoulder was 

doing relatively well and he would continue with her light-duty restrictions. 

By decision dated August 1, 2014, OWCP finalized its proposal and reduced appellant’s 

compensation to zero, effective August 2, 2014, as the evidence of record established that she 

had the capacity to earn wages as a production assembler at the rate of $680.80 per week. It 

found that the weight of the medical evidence rested with Dr. Curcin which indicated that her 

condition was stable, no further improvement was necessary, and that appellant’s partial 

disability rendered her capable of working as a production assembler. 

On August 11, 2014 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

At the March 10, 2015 hearing, appellant testified that she had held various jobs prior to 

working for the postal service and had spent three years as a production assembler of umbrellas. 

She noted that she could not find any jobs that required her to lift less than 50 pounds and 

OWCP had previously denied any additional expenses for training. Appellant reported that she 

could not perform the position of production assembler as it required work as a repetitive bench 

or line assemble operator to mass produce products such as automobile or tractor radiators which 

she would not be able to lift. She further indicated that the job required assembling machinery, 

stoves, refrigerators, etc. which did not exist in the Portland area. Counsel argued that the 

position of production assembler was heavy work which required a great deal of lifting and 

physical activity that was outside of appellant’s restrictions. He further noted that assembling 

machinery was a highly technical job which was outside of appellant’s training and capabilities. 

Counsel argued that the position for production assembler fell outside of the restrictions provided 

by the second opinion physician, who restricted appellant to lifting no more than 10 pounds for 

zero to two hours per day. The record was held open for 30 days. 

 6 Albert C. Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403. 
6

By decision dated May 11, 2015, OWCP’s hearing representative affirmed the August 1, 

2014 decision, finding that OWCP properly reduced appellant’s compensation based on her 

capacity to earn wages as she had the requisite physical ability, skills, and experience to perform 

the position of production assembler and the position was reasonably available in her commuting 

area. It noted that the medical evidence established that she was capable of full-time light-duty 

employment as per the restrictions provided by the second opinion examiner Dr. Curcin. 

LEGAL PRECEDENT 

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

modification of compensation benefits.7 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.8

Section 8115 of FECA and OWCP regulations provide that 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 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.9

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

be based on a reasonably current medical evaluation.11

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, Dictionary of 

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

capabilities with regard to his or 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 

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

8

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

9

 5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id. 

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

11 John D. Jackson, supra note 8. 
7

service.12 The fact that an employee has been unsuccessful in obtaining work in the selected 

position does not establish that the work is not reasonably available in the commuting area.13 

Finally, application of the principles set forth in Albert C. Shadrick, as codified in section 10.403 

of OWCP regulations,14 will result in the percentage of the employee’s loss of wage-earning 

capacity.15

OWCP regulations and procedures provide that if a claimant refuses or impedes 

rehabilitation training, the claims examiner shall notify the injured worker in writing, of the 

provisions of section 8113(b) of FECA16 and direct the injured worker to apply for, participate 

in, or resume participation in the training program. If the injured worker fails to comply or 

provide a written explanation of his or her failure to comply within 30 days, section 8113(b) will 

be applied and benefits will be reduced based on the jobs targeted in the approved training 

plan.17

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. 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.18

ANALYSIS 

OWCP accepted appellant’s claim for closed dislocation of the right shoulder, other joint 

derangement of the right shoulder, and dislocation of the right shoulder as a result of the 

November 6, 2009 employment injury. On February 10 and June 30, 2010 appellant underwent 

right shoulder arthroscopic rotator cuff repair, subacromial decompression, arthroscopic 

debridement, and arthroscopic redo subacromial decompression. She stopped work and received 

wage-loss compensation for which she was placed on periodic rolls. On September 11, 2012 

appellant underwent an FCE and was referred for vocational rehabilitation services on 

November 27, 2012. While appellant actively participated in the job search, her efforts were 

unsuccessful and vocational rehabilitation services were terminated without job placement on 

May 23, 2013. Effective August 2, 2014, OWCP reduced her compensation to zero based on the 

 12 Supra note 7. 

13 See Leon A. Cartier, 32 ECAB 652, 657 (1981). 

14 Supra note 6. 

15 Supra note 7. 

16 5 U.S.C. § 8113(b). 

17 20 C.F.R. § 10.519(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation 

Services, Chapter 2.813 (February 2011). 

18 John D. Jackson, supra note 8. 
8

determination that she could earn wages in the selected position of production assembler at the 

rate of $680.80 per week. 

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s 

compensation as the medical evidence upon which OWCP based its determination was 

inconsistent and did not reflect a clear understanding of the selected position of production 

assembler.19 The issue of whether an employee has the physical ability to perform a selected 

position is a medical question that must be resolved by probative medical evidence.20

OWCP indicated that the weight of the medical evidence rested with Dr. Curcin serving 

as the second opinion physician. In his report dated February 8, 2014, Dr. Curcin advised that 

appellant had passed a test for a modified duty but that appellant’s treating physician had 

provided physical restrictions which precluded her from performing the job. Dr. Curcin believed 

those restrictions were not correct as appellant had “passed the requirements to get back to 

working.” He completed a work capacity evaluation and provided restrictions of no reaching, no 

reaching above the shoulder, and no pushing, pulling, or lifting over 10 pounds for zero to two 

hours. 

OWCP provided to Dr. Curcin a copy of the position descriptions for production 

assembler and retail sales clerk and requested clarification of whether appellant could perform 

either position. It noted that the physical demand requirements were in excess of those for 

sedentary work. 

In his March 18, 2014 supplemental report, Dr. Curcin reported that appellant “was 

capable of performing work in the light category.” Although Dr. Curcin advised that appellant 

could work in the light-category position, in his February 8, 2014 evaluation, he provided 

permanent work restrictions of no reaching, no reaching above the shoulder, and no pushing, 

pulling, and lifting more than 10 pounds for zero to two hours per day. The physical demands of 

the position were described in the position description as exerting up to 20 pounds of force 

occasionally, and/or up to 10 pounds of force frequently and/or a negligible amount of force 

constantly to move objects and frequent reaching, handling, and fingering. Dr. Curcin’s work 

restrictions are therefore inconsistent with his conclusory statement that “appellant was capable 

of performing work in the light category.” 

The Board finds that the medical evidence is not clear and unequivocal in this case, as the 

physical restrictions provided by Dr. Curcin are inconsistent.21 As the medical evidence 

 19 S.B., Docket No. 15-0106 (issued March 15, 2016). 

20 See Maurissa Mack, 50 ECAB 498 (1999). 

21 FECA Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.816.4(d) 

(June 2013). If the medical evidence is not clear and unequivocal, the claims examiner should seek clarification 

from the attending physician, second opinion or referee specialist as appropriate. F.W., Docket No. 14-1772 (issued 

January 28, 2015). 
9

regarding whether appellant can work in the selected position is not clear and unequivocal, 

OWCP did not meet its burden of proof.22

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s 

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

production assembler. 

ORDER 

IT IS HEREBY ORDERED THAT the May 11, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: October 3, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 22 R.R., Docket No. 13-851 (issued September 9, 2013).