United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Z.W., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL SEA 

SYSTEMS COMMAND, San Diego, CA, 

Employer

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Docket No. 18-1000

Issued: June 24, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 16, 2018 appellant filed a timely appeal from a February 21, 2018 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 The record provided to the Board includes evidence received after OWCP issued its February 21, 2018 decision. 

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

ISSUE

The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss 

compensation benefits, effective April 13, 2017, based on her capacity to earn wages in the 

constructed position of administrative assistant.

FACTUAL HISTORY

On October 23, 2014 appellant, then a 58-year-old shipbuilding specialist, filed a traumatic 

injury claim (Form CA-1), alleging that she injured her lower back and right thigh that day when 

taking chairs off her desk while in the performance of duty. OWCP accepted the claim for 

aggravation of herniated disc at L4-5 and paid her compensation on the periodic rolls. It further

authorized two lumbar spine surgeries, which appellant underwent on March 1, 2010 and 

June 23, 2015. 

On December 4, 2015 OWCP referred appellant to Dr. Jon Pembroke Kelly, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of 

her accepted employment-related conditions. In his January 14, 2016 report, Dr. Kelly reviewed 

a statement of accepted facts (SOAF), history of the injury, and the medical evidence of record. 

He conducted a physical examination and found that no abnormal pain behaviors were evident 

other than incomplete compliance with motor testing of the lower extremities. Appellant walked 

slowly with a slightly exaggerated gait with the use of a cane in the left hand. She demonstrated 

some cogwheel resistance of both the tibialis anterior and extensor halluces longus strength testing 

and was able to demonstrate no more than 3/5 dorsiflexion. Straight leg raise testing revealed 90 

degrees without radicular symptoms. X-rays of the lumbar spine showed no scoliotic curvature 

and diminished lordosis. Dr. Kelly reported that appellant continued to complain of right leg 

weakness despite an appropriate surgery having been performed. He opined that appellant’s 

“statements are subjective, but the clinical examination which reveals a weakness in dorsiflexion 

of the foot (dependent on full patient participation).” Dr. Kelly determined that appellant had 

reached maximum medical improvement and no longer had residuals of her accepted lumbar 

conditions. He provided work restrictions of no activities which required bending and stooping at 

the waist and lifting no more than 20 pounds from ground to waist level and 25 pounds from waist 

to shoulder level. 

In an April 7, 2016 report, Dr. M. Hertzel Soumekh, a Board-certified neurosurgeon, noted 

that appellant was seen urgently that day because she could not stay seated longer than three or 

four hours. She advised that appellant was “reaching the point that she [wa]s not able to return to 

modified job duties” and her best option was disability retirement.

OWCP referred appellant to Deborah Raphael, a rehabilitation counselor, for vocational 

rehabilitation services. On June 8, 2016 Ms. Raphael identified the position of administrative 

assistant, Department of Labor, Dictionary of Occupational Titles (DOT) No. 169.167-010 as
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suitable to appellant’s work experience, physical restrictions, and education.3 The administrative 

assistant position was identified as sedentary work which involved coordinating office services, 

preparing reports, and reviewing and answering correspondence. The physical requirements 

included exerting up to 10 pounds of force occasionally. The vocational rehabilitation counselor 

indicated that the position was reasonably available within the general labor market of appellant’s 

commuting area on a full-time basis as confirmed by the State of California’s Employment 

Development Department. 

On June 16, 2016 OWCP received a rehabilitation plan and award, including the 

administrative assistant position. As of November 15, 2016, it provided 90 days of placement 

assistance. Placement was not successful. In a February 16, 2017 memorandum, OWCP stated 

that appellant did not obtain employment because she had only minimally participated in the job 

search most likely because of complaints of pain and discomfort in her back and lower extremity.

4

By letter dated March 13, 2017, OWCP issued a notice of proposed reduction of benefits,

finding that appellant was capable of earning wages as an administrative assistant at the rate of 

$600.00 per week. It applied the principles set forth in Albert C. Shadrick,5as codified in section 

10.403 of OWCP’s regulations,6to determine that appellant’s monthly wage-loss compensation 

benefits should be reduced by 30 percent. OWCP advised appellant that, if she disagreed with the 

proposed decision, she had 30 days to submit additional evidence or argument regarding her

capacity to earn wages.

In response, appellant submitted a March 14, 2017 narrative statement arguing that she was 

incapable of performing the administrative assistant position. She also submitted medical 

evidence, including a January 5, 2017 report from Dr. Soumekh who opined that appellant had 

“some degree of right femoral nerve injury/neuropathy” and he had “no explanation for that.”

 

3 The Department of Labor, Dictionary of Occupational Titles’ job description for administrative assistant, DOT 

No. 169.167-010, is as follows: Aids executive in staff capacity by coordinating office services, such as personnel, 

budget preparation and control, housekeeping, records control, and special management studies. Studies management 

methods in order to improve workflow, simplify reporting procedures, or implement cost reductions. Analyzes unit 

operating practices, such as performance standards to create new systems or revise established procedures. Analyzes 

jobs to delimit position responsibilities for use in wage and salary adjustments, promotions, and evaluation of 

workflow. Studies methods of improving work measurements or performance standards. Coordinates collection and 

preparation of operating reports, such as time-and-attendance records, terminations, new hires, transfers, budget 

expenditures, and statistical records of performance data. Prepares reports including conclusions and 

recommendations for solution of administrative problems. Issues and interprets operating policies. Reviews and 

answers correspondence.

4 By decisions dated June 28 and October 19, 2016, OWCP had found that appellant had refused to participate in 

an OWCP-approved training program in computer software applications as recommended by her vocational 

rehabilitation counselor. By decision dated October 20, 2016, it denied her claim for consequential injuries to her 

right buttock, right leg, and right heel, finding that the medical evidence of record was insufficient to establish that 

these conditions were causally related to her accepted lumbar conditions. On April 25, 2017 appellant requested 

reconsideration of the October 20, 2016 decision. On July 24, 2017 OWCP denied modification of that decision.

5 5 ECAB 376 (1953).

6 20 C.F.R. § 10.403.
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Dr. Soumekh further opined that appellant’s continued complaints of right leg pain, numbness, 

and weakness were causally related to her accepted employment injury. 

By decision dated April 13, 2017, OWCP finalized the proposed reduction of 

compensation benefits, effective April 13, 2017, based on her capacity to earn wages as an 

administrative assistant at the rate of $600.00 per week. It found that the physical requirements of 

the position did not exceed the medical restrictions provided by Dr. Kelly. On February 2, 2018

appellant requested reconsideration of the April 13, 2017 decision. She submitted additional 

medical evidence, including a January 31, 2018 report from Dr. Thomas D. Harpley, a clinical 

psychologist, who diagnosed major depressive disorder, recurrent, of moderate severity. 

By decision dated February 21, 2018, OWCP denied modification of its April 13, 2017

decision.

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.7

Section 8115(a) of FECA,8 provides in determining compensation for partial disability, the

wage-earning capacity of an employee is determined by his or her actual earnings if his or her 

actual 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, his or her wage-earning capacity is determined with due regard to the nature of 

his or her injury, his or her degree of physical impairment, his or her usual employment, his or her 

age, his or her qualifications for other employment, the availability of suitable employment, and 

other factors and circumstances which may affect her wage-earning capacity in 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 wageearning capacity must be a job reasonably available in the general labor market in the commuting 

area in which the employee lives.11 In determining an employee’s wage-earning capacity, OWCP 

may not select a makeshift or odd-lot position or one not reasonably available on the open labor 

market.12

OWCP must initially determine a claimant’s medical condition and work restrictions 

before selecting an appropriate position that reflects her wage-earning capacity. The medical 

 

7 See Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

8 5 U.S.C. § 8115.

9 See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

10 See Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

11 Id.

12 See Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).
5

evidence upon which OWCP relies must provide a detailed description of the condition.13 

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

reasonably current medical evaluation.14

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 DOT or otherwise available in the open market, 

that fits that employee’s capabilities with regard to 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. Finally, application of the principles set forth in Albert C. Shadrick15 will result 

in the percentage of the employee’s loss of wage-earning capacity. The basic rate of compensation 

paid under FECA is 66 2/3 percent of the injured employee’s monthly pay.16

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 post-injury 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.17

ANALYSIS

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

benefits, effective April 13, 2017, based on her capacity to earn wages in the constructed position 

of administrative assistant.

In Dr. Kelly’s second opinion report dated January 14, 2016, he opined that appellant was 

capable of working eight hours per day with restrictions of: sitting up to four hours per day; 

standing, reaching, and twisting up to one hour per day; pushing, pulling, and lifting up to 

approximately two hours per day; and no bending or stooping. 

Ms. Raphael, appellant’s vocational rehabilitation counselor, determined that, appellant 

was able to perform the position of an administrative assistant. She provided a job description for 

the administrative assistant position, which was identified as sedentary work which involved 

coordinating office services, preparing reports, and reviewing and answering correspondence. The 

physical requirements included exerting up to 10 pounds of force occasionally. Ms. Raphael

 

13 See William H. Woods, 51 ECAB 619 (2000).

14 See John D. Jackson, 55 ECAB 465 (2004).

15 Supra note 5.

16 See Karen L. Lonon-Jones, 50 ECAB (1999).

17 See John D. Jackson, supra note 14.
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indicated that he position was reasonably available within the general labor market of appellant’s 

commuting area on a full-time basis as confirmed by the State of California’s Employment 

Development Department. The Board finds that the administrative assistant position conforms to 

work restrictions set forth by Dr. Kelly who addressed appellant’s work capacity and opined that

she was capable of working eight hours per day with some restrictions. 

The Board finds that the weight of the evidence of record establishes that appellant had the 

requisite physical ability, skill, and experience to perform the position of administrative assistant. 

The Board further finds that OWCP considered the proper factors, such as availability of 

suitable employment and appellant’s physical limitations, usual employment and age and 

employment qualifications, in determining that the position of administrative assistant represented 

her wage-earning capacity.18 Therefore, OWCP met its burden of proof to reduce appellant’s 

wage-loss compensation, effective April 13, 2017, based on her capacity to earn wages as an 

administrative assistant.

Appellant may request modification of the wage-earning capacity determination supported 

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

CONCLUSION

The Board finds that OWCP met its burden of proof to reduce appellant’s wage-loss 

compensation benefits, effective April 13, 2017, based on her capacity to earn wages in the 

constructed position of administrative assistant. 

 

18 See James M. Frasher, 53 ECAB 794 (2002).
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ORDER

IT IS HEREBY ORDERED THAT the February 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 24, 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