United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dayton, OH, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0704

Issued: September 6, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 15, 2018 appellant, through counsel, filed a timely appeal from a 

November 29, 2017 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 has met his burden of proof to modify OWCP’s May 18, 

2015 loss of wage-earning capacity determination.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as presented in the 

prior Board order are incorporated herein by reference. The relevant facts are as follows.

Appellant, an 86-year-old former letter carrier, has an accepted traumatic injury claim 

(Form CA-1) for aggravation of degenerative disc disease (status post C5-6 laminectomy, 

performed in 1969) and strain on preexisting neurological condition, which arose on 

June 26, 1979.4 He stopped work for various periods and OWCP paid wage-loss compensation on 

the periodic rolls beginning June 16, 2002.

In May 2014, OWCP referred appellant for a second opinion examination to Dr. Edward G. 

Fisher, a Board-certified orthopedic surgeon. It requested that Dr. Fisher indicate whether 

appellant had work-related residuals and to provide an opinion on his ability to work. 

In a June 17, 2014 report, Dr. Fisher discussed appellant’s factual and medical history and 

reported the findings of the physical examination he conducted on that date. He diagnosed status 

post C5-6 laminectomy (work related by way of aggravation), resolved upper back strain, coronary 

artery disease with open heart bypass surgery in 1996 (nonwork related), 

hypertension/hypercholesterolemia controlled by medication (nonwork related), and age-related 

degenerative spondylosis/degenerative disc disease from C3 through C7 (nonwork related). 

Dr. Fisher determined that appellant could work for eight hours per day with restrictions of 

walking/standing no more than two hours per day, avoiding repetitive motion of the neck, lifting 

no more than 10 pounds frequently, and lifting no more than 20 pounds occasionally. 

On June 24, 2014 OWCP referred appellant for participation in a vocational rehabilitation 

program.

On August 1, 2014 rehabilitation counselor determined that appellant was capable of 

earning wages in the selected position of receptionist (as described in the U.S. Department of 

Labor’s Dictionary of Occupational Titles (DOT) and bearing the DOT # 237.367-038). The 

rehabilitation counselor indicated that a state labor survey showed that the receptionist position 

was reasonably available within appellant’s commuting area with an average wage of $360.80 per 

week. The receptionist position involved such duties as receiving visitors, operating a telephone 

 

3 Order Remanding Case, Docket No. 16-1659 (issued July 14, 2017).

4 Appellant’s June 26, 1979 injury was accepted by OWCP under File No. xxxxxx348. Under File No. xxxxxx528, 

OWCP previously accepted that he sustained an upper back strain on August 25, 1976. It has consolidated OWCP 

File No. xxxxxx528 into OWCP File No. xxxxxx348, and has designated OWCP File No. xxxxxx348 as the master 

file. 
3

console, and some clerical duties such as typing on a computer. The physical requirements of the 

position, classified as sedentary, included lifting up to 10 pounds on an occasional basis.

The rehabilitation counselor indicated that appellant was vocationally capable of working 

as a receptionist and that the physical requirements of the position were within the work restrictions 

recommended on June 17, 2014 by Dr. Fisher.

5

In an August 8, 2014 report, Dr. Antony T. Jacob, an attending Board-certified physical 

medicine and rehabilitation physician, reported physical examination findings and diagnosed 

cervical sprain/strain and myofascial pain syndrome. He indicated that appellant might be able to 

perform a sedentary type of work which did not involve any use of the upper extremities above 

the shoulder level. Dr. Jacob noted that appellant should avoid lifting more than 10 pounds at a 

time and should avoid prolonged sitting. Appellant could not engage in climbing, crawling, or 

kneeling. 

On May 18, 2015 OWCP issued a formal loss of wage-earning capacity determination 

based upon appellant’s ability to earn wages in the selected position of receptionist. Consequently, 

it adjusted his compensation effective May 16, 2015.

Counsel requested a telephonic hearing with a representative of OWCP’s Branch of 

Hearings and Review, which was held on January 15, 2016.

By decision dated February 25, 2016, OWCP’s hearing representative affirmed OWCP’s 

May 18, 2015 loss of wage-earning capacity determination.

In a March 22, 2016 letter, received on March 24, 2016, appellant indicated that he was 

requesting reconsideration of OWCP’s February 25, 2016 decision. In connection with his claim, 

he submitted evidence that he believed showed he could no longer work as a receptionist.

In a March 16, 2016 report, Dr. Jason Higey, an attending Board-certified cardiologist, 

reported that appellant’s cardiac condition, including coronary artery disease and valvular heart 

disease, had worsened in severity. With respect to such worsening, he noted, “The root cause of 

this is multifactorial, but likely includes natural progression of [appellant’s] heart disease as well 

as contributions from his arrhythmias and valvular heart disease and may as well have had a 

contribution from life stress (due to job retraining). It is impossible to discern the approximate 

contribution from each factor, but each likely played a role in this relative worsening of 

[appellant’s] condition.”

In a March 21, 2016 report, Dr. Jacob noted that appellant reported that, if he tries to sit at 

a desk for any length of time, his stiffness gets worse, and the pain increases. He indicated that 

appellant could not use his arms above the shoulder level because of this stiffness and pain in the 

shoulder muscles. Dr. Jacob noted that appellant was not able to look sideways or up and down 

because his range of motion was limited from prior surgery. He advised that appellant’s physical 

condition prevented him from sitting for more than 15 minutes at time, looking at a computer 

 

5 Appellant successfully completed a computer skills course on October 10, 2014 in connection with his vocational 

rehabilitation efforts. His vocational rehabilitation file was closed in November 2014. 
4

screen, holding a telephone for any length of time, or lifting above his waist level. Dr. Jacob 

further noted that appellant was currently unable to engage in any kind of gainful employment.

On April 7, 2016 counsel requested reconsideration of OWCP’s February 25, 2016 

decision on behalf of appellant. He also resubmitted copies of the March 16, 2016 report of

Dr. Higey and the March 21, 2016 report of Dr. Jacob.

By decision dated June 30, 2016, OWCP denied modification of the hearing 

representative’s February 25, 2016 decision which affirmed the original May 18, 2015 loss of 

wage-earning capacity determination.

Appellant appealed to the Board and, by order dated July 14, 2017,6it set aside OWCP’s 

June 30, 2016 decision and remanded the case to OWCP for further development. The Board 

found that his request for reconsideration of OWCP’s February 25, 2016 decision raised the issue 

of whether a modification of OWCP’s May 18, 2015 loss of wage-earning capacity determination 

was warranted. The Board directed OWCP, upon remand, to issue an appropriate decision on this 

issue.

In an October 17, 2017 development letter, OWCP advised appellant regarding the 

standards for modifying its May 18, 2015 loss of wage-earning capacity determination. It 

requested that he submit a rationalized medical report explaining how his injury-related condition 

had worsened such that he could no longer work as a receptionist. OWCP afforded appellant 30 

days to submit such evidence. 

Appellant submitted a November 17, 2017 report from Dr. Jacob who reported the physical 

findings that he obtained on that date. Dr. Jacob indicated that range of motion testing of the neck 

revealed flexion to 25 degrees, extension to about 5 degrees, lateral flexion to about 5 degrees, and 

head rotation to 30 degrees bilaterally. Appellant’s shoulder abduction was to about 100 degrees 

and flexion was to 110 degrees. Dr. Jacob noted that appellant could not use his hands for 

repetitive motion and diagnosed whiplash injury to the neck and cervical spondylosis. He

indicated that he did not think that appellant could engage in any gainful employment and noted, 

“Even doing the job of the receptionist is not easy for [appellant] as he cannot hold the [tele]phone 

for any length of time or hold his head in one position for any length of time.” Dr. Jacob advised 

that appellant could not lift anything above the shoulder level. 

By decision dated November 29, 2017, OWCP determined that appellant did not meet his 

burden of proof to modify OWCP’s May 18, 2015 loss of wage-earning capacity determination. 

It found that he failed to show that there was a material change in the nature and extent of the 

injury-related condition, that he had been retrained or otherwise vocationally rehabilitated, or that 

the original determination was, in fact, erroneous.

 

6 See supra note 3.
5

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 wage-earning 

capacity.8 An employee’s actual earnings generally best reflect his or her wage-earning capacity.9 

Absent evidence that actual earnings do not fairly and reasonably represent the employee’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity,

10 but if actual earnings do not fairly and reasonably represent the employee’s 

wage-earning capacity or the employee has no actual earnings, then 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 and circumstances that may affect wage-earning capacity 

in his disabled condition.11 

OWCP must initially determine the employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her vocational wage-earning capacity.12 

The medical evidence OWCP relies upon must provide a detailed description of the employee’s 

condition and the evaluation must be reasonably current.13 Where suitability is to be determined 

based on a position not actually held, the selected position must accommodate the employee’s 

limitations from both injury-related and preexisting conditions, but not limitations attributable to 

postinjury or subsequently-acquired conditions.14 

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 DOT or otherwise available in the open labor market that fits 

the employee’s capabilities with regard to his or her physical limitations, education, age, and prior 

experience.15 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 B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

8 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

9 Hayden C. Ross, 55 ECAB 455, 460 (2004).

10 Id.

11 5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

12 M.A., 59 ECAB 624, 631 (2008).

13 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.4d (June 2013).

14 N.J., 59 ECAB 171, 176 (2007); id. at Chapter 2.816.4c (June 2013).

15 Supra note 13 at Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b (February 2011).
6

service.16 Finally, application of the principles set forth in the Shadrick decision will result in the 

percentage of the employee’s loss of wage-earning capacity.17

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted 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, in fact, erroneous.18 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.19

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify OWCP’s May 18, 

2015 loss of wage-earning capacity determination.

The Board first finds that appellant has not shown that OWCP’s original May 18, 2015 loss 

of wage-earning capacity determination was, in fact, erroneous.20 On August 1, 2014 

rehabilitation counselor properly determined that appellant was capable of earning wages in the 

selected position of receptionist (DOT # 237.367-038). The rehabilitation counselor indicated that 

a state labor survey showed that the receptionist position was reasonably available within 

appellant’s commuting area with an average wage of $360.80 per week.21 OWCP properly relied 

on the rehabilitation counselor’s opinion that appellant was vocationally capable of working as a 

receptionist and that the position was reasonably available.22 Moreover, the evidence of record 

shows that the physical requirements of the position were within the best measure of appellant’s 

work capability at the time, i.e., the work restrictions recommended on June 17, 2014 by

 

16 The job selected for determining wage-earning capacity must be a position that is reasonably available in the 

general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n. 9 

(2004); supra note 13 at Chapter 2.816.6 (June 2013). 

17 20 C.F.R. § 10.403(d); see Albert C. Shadrick, 5 ECAB 376 (1953).

18 C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

19 See T.M., Docket No. 08-0975 (issued February 6, 2009).

20 See supra note 18.

21 The receptionist position involved such duties as receiving visitors, operating a telephone console, and some 

clerical duties such as typing on a computer. The physical requirements of the position, classified as sedentary, 

included lifting up to 10 pounds on an occasional basis.

22 See M.P., Docket No. 18-0094 (issued June 26, 2018) (finding that the vocational rehabilitation counselor is an 

expert in the field of vocational rehabilitation and that OWCP may rely on his or her opinion in determining whether 

the job is vocationally suitable and reasonably available).
7

Dr. Fisher, OWCP referral physician.23 OWCP then properly applied the principles set forth in 

the Shadrick decision to calculate the percentage of appellant’s loss of wage-earning capacity.24

Moreover, the Board finds that appellant has not shown that there was a material change 

in the nature and extent of the injury-related condition such that he could no longer work as a 

receptionist. Appellant submitted several medical reports which he believed showed such a 

worsening, but the Board finds that these reports do not contain a rationalized medical opinion that 

a worsening of an injury-related condition prevented him from working as a receptionist.25

In a March 16, 2016 report, Dr. Higey, an attending physician, reported that appellant’s 

cardiac condition, including coronary artery disease, and valvular heart disease, had worsened in 

severity, and he noted that some unspecified portion of this worsening may have been due to job 

training. However, he did not provide an opinion that appellant could no longer work as a 

receptionist and his opinion is of no probative value with respect to whether an injury-related 

condition prevented appellant from performing such work. The Board has held that medical 

evidence which does not offer an opinion regarding the cause of a given medical matter is of no 

probative value on that matter.26 Moreover, Dr. Higey did not provide any medical rationale in 

support of his suggestion that there was a partial work-related cause for appellant’s cardiac 

condition. The Board has held that a report is of limited probative value regarding causal 

relationship if it does not contain medical rationale explaining how an employment activity could 

have caused or aggravated a medical condition.27

In a March 21, 2016 report, Dr. Jacob noted that appellant was unable to look sideways or 

up and down because his range of motion was limited from prior surgery. He advised that 

appellant’s physical condition prevented him from sitting for more than 15 minutes at a time, 

looking at a computer screen, holding a telephone for any length of time, or lifting above his waist 

level. Dr. Jacob further noted that appellant was currently unable to engage in any kind of gainful 

employment. In a November 17, 2017 report, he indicated that he did not think that appellant 

could engage in any gainful employment and noted, “Even doing the job of the receptionist is not 

easy for [appellant] as he cannot hold the [tele]phone for any length of time or hold his head in 

one position for any length of time.” Dr. Jacob advised that appellant could not lift anything above 

the shoulder level. 

Although Dr. Jacob clearly indicated his opinion that appellant could not perform any 

gainful employment, he did not provide any opinion that this inability to work was due to an injuryrelated condition. As noted, the Board has held that medical evidence which does not offer an 

 

23 Dr. Fisher determined that appellant could work for eight hours per day with restrictions of walking/standing no 

more than two hours per day, avoiding repetitive motion of the neck, lifting no more than 10 pounds frequently, and 

lifting no more than 20 pounds occasionally. The requirements of the receptionist position also were within the 

August 8, 2014 work restrictions of Dr. Jacob, an attending physician.

24 See supra note 17.

25 See supra note 18.

26 See Charles H. Tomaszewski, 39 ECAB 461 (1988).

27 See Y.D., Docket No. 16-1896 (issued February 10, 2017).
8

opinion regarding the cause of a given medical matter is of no probative value on that matter.28 

Therefore, Dr. Jacob’s reports are of no probative value regarding the question of whether a 

worsening of appellant’s injury-related condition prevented him from working as a receptionist.

The Board furthers finds that the record does not show that appellant was vocationally 

rehabilitated after OWCP adjusted his compensation per its May 18, 2015 loss of wage-earning 

capacity determination.29

For these reasons, appellant has not met his burden of proof to modify OWCP’s May 18, 

2015 loss of wage-earning capacity determination.

Appellant may request modification of the loss of wage-earning capacity determination, 

supported by new evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met his burden of proof to modify OWCP’s May 18, 

2015 loss of wage-earning capacity determination.

 

28 See supra note 26.

29 See supra note 18.
9

ORDER

IT IS HEREBY ORDERED THAT the November 29, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 6, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board