United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Portland International 

Airport, Portland, OR, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1060 

Issued: March 15, 2016 

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 14, 2015 appellant, through counsel, filed a timely appeal from a December 3, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act1

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

Board has jurisdiction over the merits of this case.2

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant, through counsel, timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of 

Procedure. 20 C.F.R. § 501.5(b). The Board exercised its discretion, and by order dated November 16, 2015, 

denied the request, finding that the arguments on appeal could adequately be addressed based on the case record. 

Order Denying Request for Oral Argument, Docket No. 15-1060 (issued November 16, 2015). The Board’s Rules of 

Procedure provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a 

decision based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b). 
2

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 office clerk, general. 

On appeal, counsel asserts that the selected position was not medically suitable. He also 

requests that the Board address whether the vocational rehabilitation specialist, an independent 

contractor, could be subpoenaed. 

FACTUAL HISTORY 

On December 19, 2003 appellant, then a 48-year-old transportation security screener, 

injured her back when she leaned forward in a broken chair and almost fell. She stopped work 

on December 15, 2003 and did not return. OWCP accepted disc protrusion at L5-S1, 

lumbosacral strain, and chronic pain syndrome. Appellant received continuation of pay and 

compensation for appropriate periods of disability and was placed on the periodic compensation 

rolls. 

On October 13, 2010 appellant underwent lumbar surgery. She was referred to pain 

management in November 2011. In a pain management discharge summary dated January 11, 

2012, Dr. John R. Reichle, Board-certified in occupational medicine, advised that appellant 

reached maximum medical improvement on January 11, 2012 and could return to light work that 

day. 

In reports dated January 18, 2012, Dr. Derrick H. Yoshinaga, a Board-certified osteopath 

specializing in occupational and preventive medicine, noted that appellant had been discharged 

from pain management. He discussed physical examination findings and diagnosed lumbar 

intervertebral disc disorder, previous surgery, chronic nonmalignant pain, and opiate therapy. 

Dr. Yoshinaga advised that appellant could perform modified light-duty work per pain 

management recommendations, indicating that he was awaiting their discharge summary for 

specific restrictions. On February 7, 2012 he stated that she was released to work “in the light 

category as defined by the U.S. Department of Labor [DOL].” Dr. Yoshinaga described 

restrictions of lifting and carrying 15 pounds occasionally, 8 pounds frequently (average 10 

pounds); push and pull 19 pounds of force occasionally, 10 pounds frequently; sit 60 minutes at a 

time for 6 hours in an 8-hour day; stand and walk 90 minutes at a time for 6 hours in an 8-hour 

day; and occasionally bend, 1/2 squat, kneel, crawl, reach, and stairs. On May 3, 2012 he 

reported that Dr. Reichle advised that appellant had the physical capacity to perform physical 

demands in the light category as defined by DOL. Dr. Yoshinaga reiterated the restrictions 

described above, noting that they were permanent. 

In May 2012, appellant was referred for vocational rehabilitation. On July 10, 2012 

Bradley R. Simpson, the rehabilitation counselor, completed a transferable skills analysis. He 

advised that appellant had vocational testing done on June 15, 2012. Mr. Simpson indicated that 

she was released to work in the sedentary/light range, had previous work experience in sales, 

customer service, and information giving, and had transferable skills in several areas, including 

sales, customer service, and security services. He advised that appellant needed additional 

vocational training to be competitively employable. 
3

On July 19, 2012 Mr. Simpson sent Dr. Yoshinaga specific job descriptions for a position 

of receptionist at ProBuild and for an office clerk position at Subaru of America. Both position 

descriptions included educational requirements, work schedules, and typical job duties. The 

physical demands for each position included occasional lifting of 10 to 15 pounds. 

Dr. Yoshinaga was to indicate by a check mark whether appellant could perform each position. 

He was additionally asked to provide comments including whether any modifications were 

needed for her to perform each position and, if her condition was no longer stable, he was asked 

to provide current diagnoses. 

On July 19, 2012 Dr. Yoshinaga indicated by a check mark “yes” that appellant could 

perform each of the positions. He provided no comments. In reports dated August 9, 2012, 

Dr. Yoshinaga advised that appellant had been medically stable since February 7, 2012. He 

described physical examination findings and reiterated the permanent restrictions described in 

his May 3, 2012 report. 

At that time, Mr. Simpson identified the positions of office clerk, general, and 

receptionist. He completed a labor market survey for each position on August 6, 2012. These 

included a job description and the physical demands for each position and indicated that the 

strength level was light for the office clerk position and was sedentary for the receptionist 

position. A vocational rehabilitation plan for computer skills training for these positions was 

approved on August 20, 2012. Training was to begin on August 27, 2012. Appellant and 

counsel were notified that the training was mandatory. She refused to sign the rehabilitation 

plan. Appellant did not begin computer training. On September 5, 2012 she informed 

Mr. Simpson that she could not participate in the training either physically or mentally. 

In a September 10, 2012 letter, OWCP proposed to suspend appellant’s monetary 

compensation because she failed to cooperate with rehabilitation efforts. It notified her of the 

penalty provisions of section 8113(b) of FECA and informed her that it was assumed that 

vocational rehabilitation would have resulted in a return to work with no loss of wage-earning 

capacity and, accordingly, her compensation would be reduced to zero. Appellant was directed 

to comply with the approved training program within 30 days or show good cause for her failure 

to participate in the training program. She was informed that if she did not comply, her 

compensation would be reduced to reflect the wage-earning capacity had she completed the 

training as a receptionist or office clerk. 

By decision dated October 18, 2012, OWCP noted that appellant did not comply with the 

September 10, 2012 letter, or show good cause for not complying. It advised her that her failure 

to undergo the essential preparatory effort of vocational testing precluded a determination of 

what her wage-earning capacity would have been had she in fact undergone the testing and 

rehabilitation effort. In the absence of evidence to the contrary, it was assumed that the 

vocational rehabilitation effort would have resulted in appellant’s return to work at the same or 

higher wages than for the position held when injured. Thus, under the provisions of section 

8113(b) of FECA and section 10.519 of its regulations, OWCP reduced appellant’s 

compensation to zero, effective October 21, 2012, because she failed to undergo the directed 

vocational testing or show good cause for not complying. 
4

In an undated letter mailed to the employing establishment on October 8, 2012 and 

received by OWCP on November 13, 2012 appellant disagreed with the reduction. She 

maintained that she was physically incapable of performing either position. 

On November 26, 2012 OWCP rescinded the October 18, 2012 decision because 

appellant’s counsel had not been informed of the termination of benefits effective 

October 21, 2012. It then reissued the decision, that same day notifying her that her 

compensation was reduced to zero effective October 27, 2012, for failure to comply in the 

essential preparatory effort of vocational testing. 

In correspondence received by OWCP on June 3, 2013 appellant, through counsel, 

requested reconsideration. Counsel maintained that OWCP erred in reducing her compensation 

to zero and should have reduced her compensation based on what her wage-earning capacity 

would have been had there not been a failure to cooperate. Counsel argued that the reasoning 

used by OWCP to reduce appellant’s compensation to zero did not apply because she had 

participated in the plan development phase and, therefore, OWCP had sufficient information to 

determine her appropriate wage-earning capacity. 

By decision dated August 30, 2013, OWCP vacated the November 26, 2012 decision. It 

determined that appellant’s counsel identified error, finding that, when a suitable job has been 

identified, the reduction in compensation is to be based upon the selected job and not reduced to 

zero. Appellant received appropriate retroactive compensation and was returned to the periodic 

compensation rolls. 

Dr. Yoshinaga continued to provide reports describing appellant’s condition and 

treatment. In each report he reiterated the findings and conclusions regarding her permanent 

restrictions. 

On November 8, 2013 Deborah Smith, an OWCP rehabilitation specialist, obtained 

updated employment outlook and wage information for the positions of receptionist and clerk. 

She indicated that appellant had five years’ experience as a clerk and receptionist and advised, 

that, after training to update her computer skills, she would have a specific vocational 

preparation of eight, or above entry-level wages. OWCP obtained current pay rate information 

from the employing establishment. 

By notice of proposed reduction dated December 3, 2013, OWCP proposed to reduce 

appellant’s compensation, based on her capacity to earn wages as an office clerk, general, 

Department of Labor, Dictionary of Occupational Titles, DOT No. 209.562-010. It noted the 

accepted conditions and that Dr. Yoshinaga had agreed that she could perform the duties of the 

office clerk position on July 19, 2012 and had advised that her condition had been medically 

stationary since February 7, 2012. OWCP indicated that, based on the opinion, appellant was 

referred for vocational rehabilitation, and a rehabilitation plan for computer training was 

authorized, but that she did not appear for the training and declined to participate. The 

December 3, 2013 notice indicated that the office clerk, general, position was selected as being 

the most appropriate, based 

 
5

upon the rehabilitation counselor’s review of appellant’s work history and transferrable skills 

analysis. It included the Department of Labor, Dictionary of Occupational Titles, position 

description, as follows: 

“Performs any combination of following and similar clerical duties requiring 

limited knowledge of systems and procedures: writes, types, or enters 

information into a computer, using keyboard, to prepare correspondence, bills, 

statements, receipts, checks, or other documents, copying information from one 

record to another. Proofreads records or forms. Counts, weighs, or measures 

material. Sorts and files records, receives money from customers and deposits 

money in bank. Addresses envelopes or packages by hand or typewriter or 

addressograph machine. Stuffs envelopes by hand or with envelope stuffing 

machine. Answers telephone, conveys messages, and runs errands. Stamps, sorts 

and distributes mail. Stamps or numbers forms by hand or machine. Photocopies 

documents, using photocopier.” 

The notice further indicated that the office clerk, general, had a sedentary strength level with 

occasional lifting of 10 pounds. OWCP noted, based on recent wage and position information, 

the office clerk position was reasonably available. It advised that appellant was capable of 

earning greater than the entry level wage based on her prior experience and skills, and it thus 

determined that she was capable of earning $12.69 per hour or $509.31 per week. OWCP also 

advised that, under section 10.519(a) of its regulations, when an employee without good cause 

did not participate in vocational rehabilitation and a suitable job had been identified, the 

reduction in compensation was to be based upon the identified suitable job which, in her case, 

was as a general office clerk with a gross compensation of $509.31 per week. It recommended 

that appellant’s wage-loss compensation be reduced on the basis that she was no longer totally 

disabled and found that the general office clerk position was medically and vocationally suitable, 

and represented her wage-earning capacity. 

In a December 10, 2013 report, Dr. Yoshinaga described appellant’s physical 

examination findings and treatment. He reiterated his findings and conclusions. 

By decision dated January 3, 2014, OWCP finalized the proposed reduction of 

appellant’s compensation, based on her capacity to earn wages as an office clerk, general, 

effective January 12, 2014. By utilizing the Shadrick formula,3

 it found that she had a 16 percent 

loss of wage-earning capacity. 

In correspondence dated December 27, 2013, received by OWCP on January13, 2014 

appellant’s counsel maintained that the office clerk position had a strength level of light, which 

required lifting up to 20 pounds, and that the issue of whether the strength position was sedentary 

or light could only be resolved by OWCP’s Branch of Hearings and Review by issuing a 

subpoena for Mr. Simpson. 

Appellant timely requested a hearing before a hearing representative. On February 10, 

2014 counsel requested that a subpoena be issued for Mr. Simpson to explain whether the office 

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

clerk position was light or sedentary and to describe the different strength levels identified in the 

Department of Labor, Dictionary of Occupational Titles. Counsel maintained that, based on 

Dr. Yoshinaga’s reports, appellant could not lift in excess of 15 pounds. 

In reports dated March 11 and June 10, 2014, Dr. Yoshinaga described appellant’s 

physical findings and treatment and reiterated his findings and conclusions regarding her 

physical restrictions. 

An OWCP hearing representative on August 6, 2014 denied counsel’s subpoena request. 

The hearing representative advised that, in accordance with section 10.619 of OWCP procedures, 

“no subpoena will be issued for the attendance of OWCP employees acting in their official 

capacities as decision-makers or policy administrators.” She found that Mr. Simpson was a 

contract employee of DOL and, as such, could not be subpoenaed. 

At the hearing, held on September 10, 2014, counsel maintained that, because 

Dr. Yoshinaga restricted appellant to lifting 15 pounds, the constructed position, in the light 

strength category with lifting of up to 20 pounds, was not acceptable. He further asserted that, 

because an entry level pay rate was not used, the calculation of appellant’s wage-earning 

capacity was incorrect. Appellant testified that she had never done any of the tasks listed in the 

office clerk Department of Labor, Dictionary of Occupational Titles, description, and that she 

had no computer training.4

In correspondence dated September 22, 2014, counsel reiterated his position that the 

constructed office clerk position was not medically suitable because it was not consistent with 

the restrictions provided by Dr. Yoshinaga. 

By decision dated December 3, 2014, the hearing representative acknowledged that the 

constructed office clerk position was in the light strength category. She found that OWCP 

considered the proper factors in determining that the position reflected appellant’s wage-earning 

capacity and that it properly reduced her wage-loss compensation, effective January 12, 2014. 

The hearing representative found that, because Dr. Yoshinaga had advised that appellant could 

perform the position, it was medically suitable. The hearing representative further found that, 

since the rehabilitation counselor reported that appellant had previously performed clerical job 

duties, and because appellant chose not to attend authorized training, OWCP permissibly found 

that she qualified for greater than entry level salary. 

LEGAL PRECEDENT 

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

modification of compensation benefits.5 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 

 4

 Counsel also stated that he would submit copies of Board decisions that supported his position. These, however, 

are not found in the case record. 

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

disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.6

 

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.7 

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.8 

Additionally, the Board has held that a wage-earning capacity determination must be based on a 

reasonably current medical evaluation.9

 

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 

service.10 Finally, application of the principles set forth in Albert C. Shadrick, as codified in 

section 10.403 of OWCP regulations,11 will result in the percentage of the employee’s loss of 

wage-earning capacity.12 

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 FECA13 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 

 6

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

7

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

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

9 John D. Jackson, supra note 6. 

10 Supra note 5. 

11 Supra note 3. 

12 Supra note 5. 

13 5 U.S.C. § 8113(b). 
8

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

plan.14 

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.15 

ANALYSIS 

OWCP accepted disc protrusion at L5-S1, lumbosacral strain, and chronic pain 

syndrome, caused by the December 19, 2003 employment injury. Appellant stopped work on the 

date of injury and was placed on the periodic compensation rolls. She completed a course of 

pain management in December 2011. In May 2012, appellant was referred for vocational 

rehabilitation services. As described above, she refused to attend recommended computer skills 

training, and OWCP reduced her compensation effective January 12, 2014, based on its 

determination that she could earn wages in the selected position of office clerk, general. 

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

compensation as the medical evidence does not clearly demonstrate that the selected position of 

office clerk, general was within her physical limitations. 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.16

With respect to the issue of medical suitability of the selected position, OWCP indicated 

that Dr. Yoshinaga, an attending osteopath, had advised on July 19, 2012 that appellant could 

perform the duties of the selected position. The position of office clerk, general, DOT 

No. 209.562-010 in the Department of Labor, Dictionary of Occupational Titles, is defined as 

having a light strength level. A light strength level is described 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 (Constantly: activity or condition exists 2/3 or more of the time) to move 

objects. The Department of Labor, Dictionary of Occupational Titles, indicates that the physical 

demand requirements are in excess of those for sedentary work. 

Although Dr. Yoshinaga advised that appellant could work in a light-duty capacity, the 

restrictions he provided do not comport with light-duty strength requirements listed in the 

Department of Labor, Dictionary of Occupational Titles. He did not review the Department of 

Labor, Dictionary of Occupational Titles, description of the selected position of office clerk, 

 14 20 C.F.R. § 10.519(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation 

Services, Chapter 1.812.17.c, f (February 2011). 

15 John D. Jackson, supra note 6. 

16 See Maurissa Mack, 50 ECAB 498 (1999). 
9

general. Rather, Dr. Yoshinaga reviewed two specific jobs, a receptionist at ProBuild and an 

office clerk position at Subaru of America. The physical demands for each job required lifting of 

10 to 15 pounds, whereas the light strength category identified in the Department of Labor,

Dictionary of Occupational Titles, provides that 20 pounds can be lifted occasionally. In 

multiple reports, beginning on February 7, 2012 to December 10, 2013 and continuing, 

Dr. Yoshinaga restricted appellant’s activity to lifting and carrying 15 pounds occasionally, 8 

pounds frequently (average 10 pounds); pushing and pulling 19 pounds of force occasionally, 10 

pounds frequently; sitting 60 minutes at a time for 6 hours in an 8-hour day; standing and 

walking 90 minutes at a time for 6 hours in an 8-hour day; and occasionally bend, 1/2 squat, 

kneel, crawl, reach, and stairs. These restrictions are outside the light strength level category 

defined in the Department of Labor, Dictionary of Occupational Titles, and are more in line with 

a sedentary position. 

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

OWCP should seek the advice of a physician regarding the suitability of the position.17 The 

Board finds that the medical evidence is clear and unequivocal in this case, as the selected 

position of office clerk, general requires lifting of 20 pounds occasionally18 The jobs reviewed 

by Dr. Yoshinaga did not require 20 pounds lifting, and the physician clearly limited appellant to 

lifting of 15 pounds. 

As the medical evidence regarding whether appellant can work in the selected position is 

not clear and unequivocal, OWCP did not meet its burden of proof.19 

CONCLUSION 

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

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

clerk, general.20

 17 Supra note 14, Determining Wage-Earning Capacity, Chapter 2.816.4 (June 2013). OWCP procedures further 

provide that the medical evidence “should indicate that the claimant’s condition is stable.” Id. at Chapter 2.816.4(b) 

(June 2013). 

18 F.W., Docket No. 14-1772 (issued January 28, 2015). 

19 The Board also notes that, in accordance with section 8113(b) of FECA and section 10.519(b) of OWCP 

regulations, supra notes 13 and 14, where, as here, an employee does not cooperate with vocational rehabilitation 

efforts, when a suitable job has been identified, OWCP will reduce the employee’s compensation based on the 

amount which would likely have been his or her wage-earning capacity had he or she undergone vocational 

rehabilitation. See D.A., Docket No. 15-734 (issued June 5, 2015). The medical evidence, however, must establish 

that appellant can perform the selected position. See E.H., Docket No. 10-1958 (issued July 7, 2011). 

20 Counsel requested that the Board address the subpoena issue. The Board concludes that, as OWCP’s hearing 

representative denied the request on August 6, 2014 it has no jurisdiction to review it because the denial was issued 

more than 180 days from the date of the filing of the appeal. See 20 C.F.R. § 501.3(e). 
10

ORDER 

IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: March 15, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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