United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer

__________________________________________

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Docket No. 19-0136

Issued: May 23, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 24, 2018 appellant, through counsel, filed a timely appeal from an August 29, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The Board notes that following the August 29, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 
2

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.

ISSUE

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

effective February 4, 2018, based on her capacity to earn wages as a customer complaint clerk.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as presented 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On January 17, 2002 appellant, then a 46-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 13, 2001 she sustained low back pain radiating into 

her left leg while in the performance of duty. She stopped work on October 25, 2001 and did not 

return. OWCP accepted the claim for lumbosacral sprain with radiculopathy. It authorized an L3-

4 and L5-S1 anterior discectomy and fusion, which was performed on September 13, 2005. 

Subsequently, OWCP expanded acceptance of appellant’s claim to include an aggravation of 

degeneration of a lumbar/lumbosacral intervertebral disc and postlaminectomy syndrome. It 

assigned OWCP File No. xxxxxx928.

OWCP previously accepted under OWCP File No. xxxxxx754 that appellant sustained 

lumbar strain, an aggravation of a disc bulge at L4-5, and status post laminectomy due to a June 17, 

1995 employment injury. It administratively combined OWCP File Nos. xxxxxx928 and 

xxxxxx754, with OWCP File No. xxxxxx928 designated as the master file.

By decision dated May 18, 2006, the Board reversed the September 10 and November 5, 

2004 and January 6 and April 19, 2005 OWCP decisions terminating appellant’s wage-loss 

compensation and entitlement to schedule award compensation due to her refusal of suitable work 

under 5 U.S.C. § 8106(c)(2).

Subsequently, OWCP reinstated appellant’s wage-loss compensation.

Appellant received treatment from Dr. A. Michael Moheimani, an attending Boardcertified orthopedic surgeon. In a January 21, 2011 report, Dr. Moheimani diagnosed status post 

fusion at L3-4 and L5-S1 and opined that she was permanently partially disabled. He continued 

to submit periodic progress reports finding that appellant’s work status was permanent and 

stationary. 

 

3 5 U.S.C. § 8101 et seq.

4 Docket No. 05-1535 (issued May 18, 2006).
3

On December 8, 2016 OWCP referred appellant to Dr. Michael J. Einbund, a Boardcertified orthopedic surgeon, for a second opinion examination regarding the status of appellant’s 

accepted conditions. 

In a report dated December 21, 2016, Dr. Einbund reviewed appellant’s history of injury 

and the medical evidence of record, including the results of diagnostic testing. On examination he 

found a positive straight leg raise bilaterally, decreased sensation of the proximal lower leg, and 

normal strength of the lower extremities. Dr. Einbund opined that appellant had continued 

objective residuals of her October 13, 2001 employment injury and resulting September 13, 2005 

surgery. He found retrolisthesis at L2 in relation to L3 and hypertrophic changes at L4-5 causing 

stenosis of the central canal “directly related to the accepted industrial conditions and subsequent 

surgery of September 13, 2005.” Dr. Einbund further found that appellant had sustained an 

employment-related permanent aggravation of lumbar disc degeneration and postlaminectomy 

syndrome. He opined that she could perform sedentary employment lifting, pushing, and pulling 

no more than 10 pounds for 2.66 hours per day, standing and walking combined for three hours 

per day, and bending and stooping for one hour per day. Dr. Einbund further found that appellant 

was “limited to sitting in excess of five hours a day” with the ability to sit or stand as desired. In 

a December 29, 2016 work capacity evaluation (OWCP-5c), he provided limitations on lifting, 

pushing, and pulling up to 10 pounds for 2.66 hours per day and bending and stooping for one hour 

per day. 

On January 5, 2017 OWCP referred appellant for vocational rehabilitation.

The vocational rehabilitation counselor, on March 3, 2017, completed a job classification 

(Form CA-66) for the position of customer complaint clerk. The duties included investigating 

customer complaints about bills or service, examining documents, notifying customers of findings, 

examining merchandise, and keying information into computers. The position was sedentary and 

required occasional lifting up to 10 pounds. The vocational rehabilitation counselor found that the 

physical requirements “fell within the limitations by Dr. Einbund as the duties could be varied not 

to exceed the restrictions. Furthermore, this type of work involves mostly independent work that 

allows for alternating the duties and physical demands as needed.” The vocational rehabilitation 

counselor advised that appellant could meet the specific vocational preparation of six months to a 

year required for the position through her participation in a 20-week training program and through 

her prior work experience as a letter carrier, mail supervisor, and fast food manager. She opined 

that the position was reasonably available within her commuting area at a weekly wage of $611.20.

In a March 15, 2017 rehabilitation action report (OWCP-44), OWCP approved a training 

program for appellant from March 13 to July 31, 2017 at HealthStaff Training Institute with the 

objective for her to obtain a position as a customer complaint clerk or receptionist. It also approved 

vocational placement services from August 1 to November 1, 2017.

In progress reports dated April 19 and May 31, 2017, Dr. Moheimani discussed appellant’s 

complaints of back pain radiating into the right upper extremity from extended sitting taking 

computer classes. He diagnosed disc herniations and ruptures at C5-6, L2-3, and L4-5 with neural 

foraminal stenosis, right sacroiliac joint dysfunction, and status post lumbar fusion at L3-4 and 

L5-S1. Dr. Moheimani found that appellant’s work status was permanent and stationary.
4

On June 28, 2017 Dr. Moheimani reviewed the results of a June 13, 2017 magnetic 

resonance imaging (MRI) study and noted that it demonstrated L2-3 retrolisthesis and L4-5 

spondylolisthesis. He requested authorization to perform a right sacroiliac joint injection. 

In a vocational rehabilitation report dated August 14, 2017, the vocational rehabilitation 

counselor advised that appellant was behind in her courses due to vision problems, noting that she 

had recently been diagnosed with glaucoma and cataracts. She requested a training extension and 

noted that her curriculum would be modified. 

On August 31, 2017 HealthStaff Training Institute issued appellant a certificate of 

completion in Computerized Office Specialist work. 

The vocational rehabilitation counselor, in a September 15, 2017 vocational rehabilitation 

report, noted that she had met with appellant as part of her transition to the job placement phase of 

vocational rehabilitation. She indicated that she was considering retirement. On October 16, 2017 

the vocational rehabilitation counselor asserted that appellant had the skills necessary to work as 

a customer complaint clerk. 

In a November 27, 2017 rehabilitation action report (Form OWCP-44), the vocational 

rehabilitation counselor notified OWCP that she had provided appellant with 90 days of placement 

services.5 She indicated that she had not fully participated with the services, providing as a reason 

back pain. 

On November 30, 2017 an OWCP vocational rehabilitation specialist noted that appellant 

minimally participated in job placement services. She found that the position of customer 

complaint clerk was reasonably available within her commuting area at entry-level wages of 

$611.20 per week.

OWCP, on December 5, 2017, advised appellant of its proposed reduction of her wageloss compensation as the evidence established that she was able to earn wages in the selected 

position of customer complaint clerk. It afforded her 30 days to submit evidence or argument 

regarding the proposed reduction of her compensation.

Thereafter, appellant resubmitted December 30, 2015 and May 31 and June 28, 2017 

progress reports from Dr. Moheimani finding that her work status was permanent and stationary.

By decision dated January 30, 2018, OWCP reduced appellant’s wage-loss compensation,

effective February 4, 2018, finding that she had the capacity to earn wages of $611.20 per week as 

a customer complaint clerk. It determined that the opinion of Dr. Einbund represented the weight 

of the evidence and established that she could perform the duties of the selected position.

In progress reports dated January 31, February 28, and April 26, 2018, Dr. Moheimani 

diagnosed disc herniations and ruptures at C5-6, L2-3, and L4-5 with neural foraminal stenosis, 

 

5

In a progress reports dated November 8 and 22, 2017, Dr. Moheimani diagnosed disc herniations and ruptures at 

C5-6, L2-3, and L4-5 with neural foraminal stenosis, right sacroiliac joint dysfunction, and status post lumbar fusion 

at L3-4 and L5-S1 and requested authorization for a bilateral sacroiliac joint injection. He advised that appellant’s 

work status was permanent and stationary.
5

right sacroiliac joint dysfunction, and status post lumbar fusion at L3-4 and L5-S1. He found that 

appellant’s work status was permanent and stationary. 

On February 6, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. During the telephonic hearing, held on July 6, 2018, appellant 

asserted that her physical condition prevented her from performing the duties of a customer 

complaint clerk. She advised that she had high blood pressure, anxiety, panic attacks, and 

limitations due to her postlaminectomy syndrome. Counsel questioned whether the position of 

customer complaint clerk was reasonably available within appellant’s geographical area. 

By decision dated August 29, 2018, OWCP’s hearing representative affirmed the 

January 30, 2018 decision. She found that OWCP properly reduced appellant’s wage-loss 

compensation as the position of customer complaint clerk was medically and vocationally suitable. 

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.6 Its burden of 

proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper 

factual and medical background.7

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.8 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or 

if 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 usual employment, age, 

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

circumstances which may affect the wage-earning capacity in his or her disabled condition.9 

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor 

market under normal employment conditions.10 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.11 The fact that an employee has been unsuccessful in obtaining work 

 

6 See E.D., Docket No. 17-1064 (issued March 22, 2018).

7 See S.N., Docket No. 17-1589 (issued January 3, 2018).

8 5 U.S.C. § 8115(a).

9

Id.; see also J.M., Docket No. 17-0397 (issued April 3, 2018).

10 See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 --

Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).

11 See M.K., Docket No. 17-0208 (issued April 17, 2018).
6

in the selected position does not establish that the work is not reasonably available in his 

commuting area.12

When OWCP makes a 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 the employee’s capabilities with regard to his 

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, local Chamber of Commerce, employer contacts, and 

actual job postings.13 Lastly, OWCP applies the principles set forth in Albert C. Shadrick14 as 

codified in section 10.403 of OWCP’s regulations,15 to determine the percentage of the employee’s 

loss of wage-earning capacity (LWEC).

16

ANALYSIS

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

effective February 4, 2018, based on her capacity to earn wages as a customer complaint clerk. 

On December 8, 2016 Dr. Einbund, an OWCP referral physician, diagnosed retrolisthesis at L2 in 

relation to L3, hypertrophic changes at L4-5 causing central canal stenosis, a permanent 

aggravation of lumbar disc degeneration, and postlaminectomy syndrome causally related to her 

accepted employment injury and resultant surgery. He opined that appellant could perform 

sedentary employment lifting, pushing, and pulling not more than 10 pounds for 2.66 hours per 

day, standing and walking combined no more than 3 hours per day, and bending and stooping not 

more than 1 hour per day. The Board finds that OWCP properly referred appellant for vocational 

rehabilitation as the medical evidence established that she was no longer totally disabled due to

residuals of her employment injury.17 

OWCP further properly determined that appellant had the physical capacity to perform the 

duties of a customer complaint clerk. The position is classified as sedentary employment requiring 

occasional lifting up to 10 pounds. Dr. Einbund opined that appellant could sit five hours per day 

with the ability to switch positions and stand and walk and combined three hours per day. The 

vocational rehabilitation counselor noted that position of customer complaint clerk allowed for 

independent work with a variety of duties that did not exceed Dr. Einbund’s restrictions. The 

Board finds that Dr. Einbund’s opinion is well reasoned and based on a complete and accurate 

 

12 C.M., Docket No. 18-0688 (issued November 15, 2018).

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

Constructed Position, Chapter 2.816.6.a (June 2013).

14 5 ECAB 376 (1953).

15 20 C.F.R. § 10.403.

16 See J.M., Docket No. 17-0397 (issued April 3, 2018).

17 C.M., Docket No. 18-1326 (issued January 4, 2019).
7

history and thus constitutes the weight of the evidence and establishes that appellant has the 

requisite physical ability to earn wages as a customer complaint clerk.18 

In progress reports dated 2017 through 2018, Dr. Moheimani diagnosed disc herniations 

and ruptures at C5-6, L2-3, and L4-5, right sacroiliac joint dysfunction, and status post lumbar 

fusion at L3-4 and L5-S1. He opined that appellant’s work status was permanent and stationary. 

Dr. Moheimani did not address the relevant issue of whether she could perform the position of 

customer complaint clerk and thus his opinion is of no probative value.19

The Board, therefore, finds that the weight of the evidence establishes that appellant had 

the physical capacity to perform the duties of the selected position.20

In assessing the claimant’s ability to perform the selected position, OWCP must consider 

not only physical limitations, but also take into account work experience, age, mental capacity and 

educational background.21 The rehabilitation counselor determined that appellant had the skills 

necessary to perform the position of customer complaint clerk based on her prior work experience 

and her 20-week training program at HealthStaff Training Institute. She further found that the 

position was reasonably available within her commuting area at a weekly wage of $611.20. As 

the rehabilitation counselor is an expert in the field of vocational rehabilitation, OWCP may rely 

on his or her opinion in determining whether the job is vocationally suitable and reasonably 

available.22 The Board finds that OWCP considered the proper factors, including the availability 

of suitable employment, appellant’s physical limitations and employment qualifications in 

determining that appellant had the capacity to perform the position of customer complaint clerk.23 

OWCP further properly determined that she had no LWEC in accordance with the formula 

developed in Shadrick and codified at 20 C.F.R. § 10.403.24 OWCP, therefore, properly found 

that the position of customer complaint clerk reflected her wage-earning capacity effective 

February 4, 2018.

 

18 Id.

19 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018). 

20 See T.J., Docket No. 16-1473 (issued January 26, 2017).

21 Id.

22 See J.B., Docket No. 17-0817 (issued April 26, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.6(b) (June 2013).

23 T.B., Docket No. 17-1777 (issued January 16, 2019).

24 Supra notes 15, 16. OWCP divided appellant’s employment capacity to earn wages of $611.20 a week by the 

current pay rate of the position held when injured of $1,174.94 per week to find 52 percent wage-earning capacity. It 

multiplied the pay rate at the time of injury of $839.62 by the 52 percent wage-earning capacity percentage. The 

resulting amount of $436.60 was subtracted from appellant’s date-of-injury pay rate of 839.62 which provided a loss 

of wage-earning capacity of $403.02 per week. OWCP then multiplied this amount by the appropriate compensation 

rate of three-fourths and applied adjustments, which yielded $1,456.20 every four weeks.
8

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

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

effective February 4, 2018, based on her capacity to earn wages as a customer complaint clerk. 

ORDER

IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 23, 2019

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