United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.D., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Dallas, TX, 

Employer 

__________________________________________ 

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Docket No. 16-0028 

Issued: November 28, 2016 

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 7, 2015 appellant, through her representative, filed a timely appeal from the 

September 28, 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. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish a basis for modifying 

OWCP’s May 29, 2012 loss of wage-earning capacity (LWEC) determination. 

FACTUAL HISTORY 

On May 2, 1997 appellant, then a 28-year-old mail processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that she sustained neck and upper extremity injuries as a 

result of her federal employment. OWCP accepted the claim for cervical strain, right wrist 

ganglion cyst, bilateral wrist tendinitis, and bilateral carpal tunnel syndrome (CTS). Appellant 

underwent a series of bilateral carpal tunnel releases in 2002. Following surgery, she returned to 

work in a limited-duty capacity. OWCP has granted schedule awards for a combined 16 percent 

permanent impairment of the right upper extremity and 12 percent permanent impairment of the 

left upper extremity. In a May 28, 2009 decision, it accepted that appellant suffered a recurrence 

of disability beginning January 13, 2009.3

 Appellant received wage-loss compensation for 

temporary total disability, and she received compensation benefits on the periodic compensation 

rolls as of June 6, 2009. 

With respect to continuing employment-related disability, OWCP referred appellant for a 

second opinion examination by Dr. Donald M. Mauldin, a Board-certified orthopedic surgeon. 

Dr. Mauldin examined appellant on May 3, 2011 and advised that, while she could not resume 

her former duties as a mail processing clerk, appellant could work full time at a sedentary level 

with a 10-pound lifting restriction. In a July 14, 2011 report, Dr. John Sazy, an attending 

orthopedic surgeon and neurosurgeon, diagnosed cervical stenosis at C4-5, C5-6, and C6-7, and 

advised that appellant required cervical fusion and was currently unable to return to work. 

OWCP found that a conflict in the medical evidence existed and selected Dr. Dale R. 

Allen, a Board-certified orthopedic surgeon, as an impartial medical examiner (IME). In a report 

dated July 26, 2011, Dr. Allen found that appellant continued to suffer residuals of her accepted 

bilateral CTS and cervical strain. He noted that appellant’s prognosis was poor given that she 

had not shown any improvement over the past 13 years. Dr. Allen doubted whether any further 

improvement was likely. He did not recommend surgery, particularly cervical fusion or 

additional carpal tunnel releases. Instead, Dr. Allen recommended continued conservative 

treatment, including anti-inflammatory drugs, nonnarcotic pain medications, and sleeping aids. 

He further noted that, although appellant was unable to resume her mail processor duties, she 

could work full time performing sedentary work with occasional lifting up to 10 pounds. 

In August 2011, OWCP referred appellant for vocational rehabilitation services. In 

November 2011, it developed a rehabilitation plan for placement as a telemarketer, information 

clerk, or insurance clerk. According to the Department of Labor, Dictionary of Occupational 

Titles (DOT), the identified positions were sedentary in nature. For the position of information 

clerk, DOT No. 237.367-022, the rehabilitation counselor indicated the weekly earnings were 

$456.00, and the job was reasonably available in appellant’s commuting area. As a sedentary 

 3

 OWCP also expanded appellant’s claim to include tension headache (migraines), cervical intervertebral disc 

displacement, and chronic pain syndrome. 
3

position, the lifting requirements were up to 10 pounds. After 90 days of job placement services, 

appellant was unable to secure employment. Her OWCP-sponsored vocational rehabilitation 

program ended as of April 10, 2012. 

On April 12, 2012 OWCP issued a proposal to reduce appellant’s compensation as she 

had the capacity to earn wages as an “insurance clerk.” The DOT No. 237.367-022 was 

identified for the information clerk position, and the wages were $456.00 per week. Appellant 

was advised to respond within 30 days if she disagreed with the proposal. On May 14, 2012 

appellant’s representative submitted a letter arguing that OWCP had not met its burden of proof 

to reduce appellant’s compensation as the medical evidence was insufficient. 

By decision dated May 29, 2012, OWCP reduced appellant’s wage-loss compensation 

effective June 3, 2012 based on her ability to earn weekly wages of $456.00 as an “Insurance 

Clerk.” It found that the selected position was both vocationally and medically suitable. The 

later finding was based on Dr. Allen’s July 26, 2011 opinion that appellant could perform 

sedentary work. An OWCP hearing representative with the Branch of Hearings and Review 

affirmed the decision on December 5, 2012. Since then, OWCP has denied modification of its 

May 29, 2012 LWEC determination on four separate occasions. Its most recent merit decision is 

dated September 28, 2015, and was issued in response to counsel’s June 20, 2015 request for 

modification.4

On June 15, 2015 OWCP provided counsel a bypass history report, which consisted of 34 

pages of screen shots with various codes and explanations why 32 physicians were bypassed 

during the June 29, 2011 referee selection process. Prior to June 15, 2015, the only relevant 

evidence regarding Dr. Allen’s selection as an IME was an iFECS ME023 - Appointment 

Schedule Notification. This report was generated at “12:21:56 PM” on June 29, 2011. 

In his June 20, 2015 request for modification, counsel specifically challenged OWCP’s 

selection of Dr. Allen as an IME. He identified more than 30 physicians who OWCP bypassed 

between 11:20 a.m. and 1:21 p.m. on June 29, 2011. Thirteen physicians were reportedly 

bypassed after OWCP had already selected Dr. Allen at 12:21 p.m. Counsel conceded that 

several physicians were properly bypassed where there was no current telephone listing or the 

physician’s telephone had been disconnected (Code O - Other). He also noted several other 

instances where the identified physician had previously examined appellant or an associate in the 

same practice had seen appellant, and thus, was appropriately bypassed (Code C - Conflict). 

Another instance involved a district medical adviser who OWCP properly bypassed (Code O). 

However, counsel noted six instances where he believed OWCP improperly bypassed a 

physician. The reported reason for bypassing these six physicians was because their respective 

appointment schedulers were not in the office at the time OWCP called to schedule an IME 

examination (Code O).5

 Counsel argued that because OWCP had not properly selected 

 4

 OWCP previously denied modification on December 4, 2014, April 8, and September 16, 2015. Its 

September 28, 2015 decision is similar to its September 16, 2015 decision, except for a slightly more detailed 

analysis on page 4 regarding Dr. Allen’s selection as IME. 

5

 Based on the bypass history report, all six physicians were bypassed after OWCP had already selected Dr. Allen 

as a referee physician. 
4

Dr. Allen, his opinion was not entitled to the weight normally afforded an IME. As such, he 

argued that OWCP had not met its burden to justify modifying appellant’s wage-loss 

compensation effective June 3, 2012. 

In its September 28, 2015 decision, OWCP determined that appellant had not established 

a basis for modifying its prior LWEC determination. Specifically, it found that the evidence did 

not establish an error in OWCP’s selection of Dr. Allen as an IME. 

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 in such benefits.6

 Under 5 U.S.C. § 8115(a), 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 if 

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

the nature of her injury, her degree of physical impairment, her usual employment, her age, her 

qualifications for other employment, the availability of suitable employment, and other factors and 

circumstances which may affect her wage-earning capacity in his disabled condition.7

 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’s Dictionary of Occupational Titles or 

otherwise available in the open market, that fits the 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 labor market should be made through contact 

with the state employment service or other applicable service.8

 Finally, application of the 

principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of 

wage-earning capacity.9

Modification of an LWEC determination is unwarranted unless there is a material change 

in the nature and extent of the injury-related condition, the employee has been retrained or 

otherwise vocationally rehabilitated, or the original determination was erroneous.10 The burden 

of proof is on the party seeking modification of the LWEC determination.11

 6 Carla Letcher, 46 ECAB 452 (1995). 

7 See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a). 

8 See Dennis D. Owen, 44 ECAB 475 (1993). 

9

 5 ECAB 376 (1953); see also 20 C.F.R. § 10.403. 

10 20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000). 

11 Id. at § 10.511.
5

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.12 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”13 Where OWCP has referred the case to an IME to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned 

and based upon a proper factual background, must be given special weight.14

ANALYSIS 

In the present case, counsel has argued that the May 29, 2012 LWEC determination was 

erroneous and therefore should be modified. He argues that OWCP failed to satisfy its burden in 

its initial LWEC decision because of misplaced reliance on Dr. Allen’s July 28, 2011 report. 

Counsel identifies numerous physicians who OWCP bypassed after having already selected 

Dr. Allen at 12:21 p.m. on June 29, 2011. The bypass history report identified 13 instances 

where a physician was bypassed on or after 1:14 p.m. on June 29, 2011. Counsel took issue with 

some, but not all of the reasons offered for bypassing those particular physicians. 

Notwithstanding the reported rationale for bypassing the physicians, it is unclear from either the 

record or the September 28, 2015 decision why OWCP apparently continued to contact various 

physicians after having already appropriately scheduled an appointment with Dr. Allen. 

Counsel asserts a reversal is warranted because the record does not indicate whether the 

referee was properly selected from the Physician Directory System (PDS). However, this 

argument is irrelevant as OWCP no longer utilizes the PDS for scheduling impartial medical 

evaluations. That system has been replaced by the iFECS-based medical management 

application (MMA).15 While the PDS is no longer utilized, the same “strict rotational 

scheduling” process previously relied upon is incorporated into the MMA.16 The Board has 

placed great importance on the appearance, as well as the fact of impartiality in selecting a 

referee physician, and only if the selection procedures designed to achieve impartiality are 

scrupulously followed may the selected physician carry the special weight accorded to an 

impartial specialist.17 

It remains unclear why OWCP continued to contact various physicians after it had 

already appropriately scheduled an appointment with Dr. Allen, however, there was no evidence 

presented that establishes the selection of Dr. Allen was itself improper. OWCP did bypass 

physicians prior to the selection of Dr. Allen, but provided valid reasons for each bypass, such as 

no telephone listing for the physician, or that appellant had previously seen that particular 

 12 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). 

13 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

14 Gary R. Sieber, 46 ECAB 215, 225 (1994). 

15 See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.5 (May 2013). 

16 Id.

17 L.W., 59 ECAB 471, 478 (2008). 
6

physician. There was no violation of established procedures. Counsel concedes that the 

physicians bypassed prior to the selection of Dr. Allen were all properly bypassed. Code C is 

used when a physician has a prior connection to the claim, and Code O is used for situations such 

as when there is no current telephone listing, the physician’s telephone had been disconnected, or 

no one answers the telephone.18 Once the selection of Dr. Allen was properly made, the 

additional attempts to schedule and thus bypass physicians constitutes harmless error. The 

selection of Dr. Allen was made in accord with OWCP procedures.19 The attempts to schedule a 

physician after the selection of Dr. Allen do not invalidate the proper selection of Dr. Allen as an 

IME in this case. 

The Board finds that Dr. Allen’s IME report represents the special weight of the medical 

evidence. Dr. Allen provided a complete report based on an accurate factual and medical 

background. He found that appellant could perform sedentary duty with a 10-pound lifting 

restriction. As noted above, a well-reasoned opinion from an IME is entitled to special weight.20 

The selected position of information clerk, although misidentified as insurance clerk, was a 

sedentary position with occasional lifting of 10 pounds. It was clearly within the work 

restrictions provided by Dr. Allen. The Board finds the probative medical evidence establishes 

the position was medically suitable. 

The rehabilitation counselor confirmed that the position was vocationally suitable and 

was performed in appellant’s commuting area.21 The wages were reported as $456.00 per week. 

OWCP applied the Shadrick formula to determine the LWEC. The earnings of $456.00 are 

divided by the current pay rate for appellant’s date-of-injury job, to determine the wage-earning 

capacity percentage.22 The pay rate for compensation purposes is then multiplied by the wageearning capacity percentage.23 This amount is subtracted from the pay rate for compensation 

purposes to determine the LWEC.24 OWCP found that appellant’s LWEC was $438.92 per 

week. The record does not contain any evidence of error with respect to these calculations. 

The Board accordingly finds that no error in the original May 29, 2012 LWEC 

determination has been established. Appellant has not alleged or shown that there was a material 

change in the nature and extent of the injury-related condition, or that the employee has been 

retrained or otherwise vocationally rehabilitated. It is appellant’s burden of proof to modify the 

 18 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.6 

(May 2013) (the Board notes that if a message is left on the physician’s phone, the scheduler should allow at least 

two business hours for a return call before bypassing the physician). 

19 Supra note 15. 

20 Supra note 14. 

21 Supra note 7. 

22 20 C.F.R. § 10.403(d). 

23 Id. at § 10.403(e). 

24 Id.
7

LWEC decision.25 Appellant has not met any of the requirements for modification, and the 

Board therefore finds she did not meet her burden in this case. 

CONCLUSION 

The Board finds appellant did not meet her burden of proof to establish that a 

modification of the May 29, 2012 LWEC determination was warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the September 28, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 28, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 25 Supra, note 11.