United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Orlando, FL, Employer

__________________________________________

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Docket No. 18-0663

Issued: December 21, 2018

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., 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 February 7, 2018 appellant, through counsel, filed a timely appeal from a November 16, 

2017 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, through counsel, timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). 

In an order dated October 11, 2018, the Board, after exercising its discretion, denied the request as his arguments on 

appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. Order 

Denying Request for Oral Argument, Docket No. 18-0663 (issued October 11, 2018).

3 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly reduced appellant’s wage-loss compensation

benefits, effective November 17, 2017, based on his capacity to earn wages in the selected position 

of receptionist. 

FACTUAL HISTORY

On May 13, 2014 appellant, then a 49-year-old mail handler, filed an occupational disease 

claim (Form CA-2) alleging that he sustained an aggravation of his lumbar degenerative disc 

disease and developed arthritis and pinched nerve damage as a result of years of repetitive 

movements at work. He noted that he first became aware of his claimed conditions on May 15, 

2013 and of their relationship to his federal employment on June 28, 2013. On the reverse side of 

the claim form, appellant’s supervisor indicated that appellant was currently working and that 

limited-duty assignments were provided to him based on medical documentation related to his 

accepted May 13, 2013 traumatic injury.4 

By decision dated July 14, 2014, OWCP denied appellant’s occupational disease claim, 

finding that the evidence of record was insufficient to establish fact of injury. It determined that a 

medical report indicated that he sustained an injury on May 13, 2014. OWCP noted that there was 

no mention of an injury sustained on that date. It further found that the evidence of record did not 

support a finding that the alleged injury or event occurred as alleged and the medical evidence of 

record did not establish a diagnosed medical condition causally related to the alleged work injury 

or event.

On August 12, 2014 appellant requested a telephone hearing before an OWCP hearing 

representative. By decision dated February 19, 2015, the hearing representative set aside the 

July 14, 2014 decision. He found that appellant had established fact of injury as he previously 

provided a clear description of his employment history and explained his daily work duties. The 

hearing representative, however, remanded the case for OWCP to combine the current case record 

with OWCP File No. xxxxxx260 and properly adjudicate the issue of whether appellant had

established a causal relationship between his diagnosed conditions and the accepted factors of his 

federal employment.

On February 24, 2015 OWCP administratively combined the two OWCP files, with File 

No. xxxxxx616 serving as the master file. In addition, on March 19, 2015 it referred appellant, 

together with a statement of accepted facts, the medical record, and a set of questions, to

Dr. Richard C. Smith, a Board-certified orthopedic surgeon, for a second opinion evaluation to 

 

4 Appellant has a prior claim, in which OWCP accepted that he sustained a lumbar sprain while working as a mail 

handler on May 13, 2013. OWCP assigned that claim File No. xxxxxx260. It paid him disability compensation on 

the supplemental rolls. Subsequently, by decision dated August 26, 2014, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective that day, finding that he no longer had any residuals or disability causally 

related to his accepted May 13, 2013 employment injury. On June 25, 2015 an OWCP hearing representative affirmed 

the May 13, 2013 termination decision. 
3

determine whether there was a causal relationship between his lower back condition and accepted 

employment factors. 

In an April 14, 2015 medical report, Dr. Smith discussed findings on physical examination

including evaluation of appellant’s cervical, thoracic, and lumbar spines. He diagnosed herniated 

discs at C4-C5, C5-C6, T5-T6, T8-T9, L4-L5, and L5-S1. Dr. Smith opined that the diagnosed 

conditions were directly caused by factors of appellant’s federal employment. He advised that 

while appellant was unable to perform his usual job, he could work eight hours a day with 

restrictions, as outlined in his attached work capacity evaluation (Form OWCP-5c).

On May 1, 2015 OWCP accepted appellant’s claim for displacement of intervertebral discs 

at C4-C5, C5-C6, T5-T6, T8-T9, L4-L5, and L5-S1. It paid appellant disability compensation on 

the supplemental rolls commencing September 16, 2014. 

Subsequently, on February 13, 2017 OWCP again referred appellant to Dr. Smith for a 

second opinion evaluation to determine his disability status. In a March 13, 2017 report, Dr. Smith 

related that appellant’s accepted cervical, thoracic, and lumbar conditions had not resolved. He 

advised that the conditions were unlikely to resolve or return to his predate-of-injury baseline 

because they were permanent in nature. Dr. Smith opined that appellant was unable to return to 

his date-of-injury mail handler position due to its lifting requirements, but he could return to work 

in a sedentary capacity with restrictions outlined in an attached OWCP-5c form. In the March 13, 

2017 OWCP-5c form, he indicated that appellant could work eight hours a day with restrictions of 

sitting and standing up to two hours, walking up to four hours, and pushing, pulling, and lifting up 

to 10 pounds. He could not bend/stoop. 

OWCP referred appellant for vocational rehabilitation services on April 10, 2017. It noted 

that Dr. Smith’s report and work restrictions were considered to be the weight of the medical 

opinion evidence. On May 8, 2017 the rehabilitation counselor identified the positions of customer 

service representative, receptionist, and service dispatcher as suitable work. She indicated that 

appellant had a cell phone with computer access and a desktop computer. Appellant knew Word, 

but did not know Microsoft Excel or PowerPoint. The rehabilitation counselor indicated that 

appellant’s other transferable skills included communication, interpersonal, customer service, 

dispatching, sales ability, time management, training, and good to excellent math and reading 

skills. She related that the plan was to have him complete two free online computer software 

training courses to enhance his employability. In a job classification (Form CA-66) dated May 8, 

2017, the rehabilitation counselor noted that the Department of Labor, Dictionary of Occupational 

Titles (DOT) indicated that the selected position of receptionist, No. 237.367.038, was sedentary 

in nature5and involved such duties as receiving visitors, answering telephone calls, and limited 

typing of documents. She further indicated that the position required three to six months of 

vocational preparation, which appellant could meet through his work experience as a security 

guard, which involved escorting guests and as a real estate agent, which involved answering the 

telephone. The rehabilitation counselor conducted a labor market survey to verify that the 

identified position was reasonably available in his commuting area with wages of $409.20 per 

 

5 Sedentary work, according to the DOT, involves occasionally exerting up to 10 pounds of force and sitting most 

of the time, but may involve walking or standing for brief periods of time. Occasionally, performing an activity means 

that the activity is performed up to one third of the time during the workday. 
4

week. Appellant’s participation in the vocational rehabilitation program did not result in his return 

to work. 

On May 30, 2017 OWCP further expanded acceptance of appellant’s claim to include 

cervical and lumbar radiculopathy. Effective June 15, 2017, appellant retired from the employing 

establishment on disability.

By letter dated September 25, 2017, OWCP proposed to reduce appellant’s wage-loss 

compensation based on his capacity to earn wages as a receptionist. It applied the principles set 

forth in Albert C. Shadrick,

6

as codified in section 10.403 of OWCP’s regulations,7to determine 

that appellant’s monthly wage-loss compensation benefits should be reduced by 37 percent. 

Appellant was advised that, if he disagreed with the proposed decision, he had 30 days to submit 

additional evidence or argument regarding his capacity to earn wages.

In response to the proposed reduction of his wage-loss compensation benefits, appellant 

submitted a number of medical reports from his treating physicians, which outlined his current 

conditions. Appellant also submitted his own statement in which he noted that Dr. Smith had 

limited his ability to sit two hours each workday; however, he indicated that the selected position 

was sedentary and required additional sitting beyond two hours each workday and reaching, 

twisting, and standing intermittently. 

By decision dated November 16, 2017, OWCP reduced appellant’s wage-loss 

compensation, effective November 17, 2017, based on his capacity to earn wages as a receptionist 

at the rate of $409.20 per week. It found that the physical requirements of the position did not 

exceed the medical restrictions provided by Dr. Smith. 

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 wage-earning 

capacity (LWEC).9

Under section 8115(a) of FECA, 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 the employee’s wageearning capacity or if the employee has no actual wages, 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, 

 

6 5 ECAB 376 (1953).

7 20 C.F.R. § 10.403.

8

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

9 20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004).
5

and other factors and circumstances which may affect the employee’s wage-earning capacity in 

his or her disabled condition.10

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, DOT or otherwise available in the open 

market, that fit 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. Finally, application of the principles set forth in Albert C. Shadrick11

and codified by regulations at 20 C.F.R. § 10.40312 should be applied. Subsection(d) of the 

regulations provide that the employee’s wage-earning capacity in terms of percentage is obtained 

by dividing the employee’s actual earnings or the pay rate of the position selected by OWCP, by 

the current pay rate for the job held at the time of the injury.13

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.14 Any incapacity to perform the 

duties of the selected position resulting from subsequently acquired conditions is immaterial to the 

LWEC that can be attributed to the accepted employment injury and for which appellant may 

receive compensation. Additionally, the job selected for determining wage-earning capacity must 

be a job reasonably available in the general labor market in the commuting area in which the 

employee lives.15

ANALYSIS

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation

benefits, effective November 17, 2017, based on his capacity to earn wages in the selected position 

of receptionist. 

The selected position of receptionist involved receiving visitors, answering telephone calls, 

and limited typing of documents. The issue of whether appellant has the physical ability to perform 

a selected position is primarily a medical question that must be resolved by the medical evidence

 

10 5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 

584 (1996).

11 See supra note 5.

12 See supra note 6.

13 Id. at § 10.403(d).

14 James Henderson, Jr., 51 ECAB 268 (2000).

15 Id.
6

of record.

16

 OWCP relied on the opinion of Dr. Smith, an OWCP second opinion physician, in 

finding that the selected position was within appellant’s physical limitations. In a March 13, 2017 

work capacity evaluation, Dr. Smith limited appellant to, among other restrictions, two hours of 

sitting. The job description listed the selected position as sedentary in nature, a physical 

requirement listed conflicts with one of Dr. Smith’s work restrictions. The position required sitting

most of the time, but the position description did not address or specify the length of time which 

would be required for sitting, and it remains unclear whether the position would violate the 

restriction that appellant could not sit more than two hours. Thus, Dr. Smith’s report calls into 

question whether appellant could physically perform the duties of the receptionist position. The 

Board notes that OWCP did not request that he review the job description for the selected 

receptionist position and provide an opinion as to whether appellant could perform the duties of 

the position. Dr. Smith’s report is, therefore, of limited probative value and insufficient to 

establish that appellant has the physical capacity to perform the duties of a receptionist.17 

Notwithstanding Dr. Smith’s explicit restriction, a rehabilitation counselor selected a position as a 

receptionist that necessitated a level of physical exertion, which exceeded appellant’s physical 

restriction as to sitting. 

OWCP procedures provide that, unless the medical evidence is clear and unequivocal, 

OWCP should seek the advice of a physician regarding the suitability of the position.18 The Board 

finds that the medical evidence of record is not clear and unequivocal in this case, as the selected 

position of receptionist requires sitting most of the time.19

CONCLUSION

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation 

benefits, effective November 17, 2017, based on his capacity to earn wages in the selected position

of receptionist. 

 

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

17 See R.D., Docket No. 09-1237 (issued February 18, 2010).

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

(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).

19 See B.C., Docket No. 15-1861 (issued October 3, 2016); E.W., Docket No. 14-584 (issued July 29, 2014); 

Arthur E. Ostergard, Docket No. 04-1118 (issued November 2, 2004).
7

ORDER

IT IS HEREBY ORDERED THAT the November 16, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: December 21, 2018

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