United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

O.V., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Newark, NJ, Employer 

__________________________________________ 

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Docket No. 16-1702 

Issued: September 13, 2017 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 24, 2016 appellant, through counsel, filed a timely appeal from June 22 and 

August 9, 2016 merit decisions 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

ISSUES 

The issues are: (1) whether OWCP properly reduced appellant’s compensation effective 

August 24, 2016 based on her capacity to earn wages as a customer complaint clerk; and 

(2) whether OWCP properly suspended appellant’s compensation effective August 9, 2016 for 

failure to complete an EN1032 form as requested. 

FACTUAL HISTORY 

On June 25, 2004 appellant, then a 50-year-old transportation security screener, filed a 

traumatic injury claim (Form CA-1) alleging a right shoulder injury that day when she reached to 

help passengers place bags on a belt. 

OWCP accepted that appellant sustained right shoulder and rotator cuff sprains, bilateral 

shoulder impingement syndrome, temporary aggravation of left shoulder osteoarthritis, and left 

shoulder tendinitis.3 Appellant underwent OWCP-authorized right shoulder arthroscopies on 

March 4, 2005 and July 27, 2010, and left shoulder arthroscopy on July 5, 2012. She returned to 

light-duty work on a full-time basis after the March 4, 2005 and July 27, 2010 surgeries. 

Appellant stopped work on July 13, 2011 and did not return. She was returned to the periodic 

rolls. 

In late-2011 appellant was referred to a vocational rehabilitation counselor for 

participation in a vocational rehabilitation program. She underwent training provided by PCI 

College for proficiency in computer software and keyboarding skills. Appellant’s participation 

in the program was interrupted by medical issues, but was later restarted in 2013. 

On December 4, 2012 Dr. Julian E. Girod, an attending Board-certified orthopedic 

surgeon, provided work restrictions of lifting limited to 10 pounds and no overhead reaching 

more than four times per hour. 

On May 8, 2013 OWCP approved an employment plan, including training from May 14 

to September 6, 2013, followed by 90 days of placement services. Appellant was advised that if 

placement services were not successful at the end of the 90-day period, OWCP could reduce 

compensation benefits to reflect the wage-earning capacity in a suitable position. Placement 

services began on September 9, 2013, after appellant successfully completed office skills 

training. Although appellant participated in a job search, the efforts did not result in job 

placement. 

On June 12, 2014 Dr. Girod again provided work restrictions of lifting limited to 10 

pounds and no overhead reaching more than four times per hour. 

In April 2015 appellant’s vocational rehabilitation counselor determined that appellant 

was capable of earnings wages in the constructed position of customer complaint clerk, a 

position listed in the Department of Labor’s Dictionary of Occupational Titles (DOT) and 

 3

 Appellant received disability compensation on the daily rolls beginning August 10, 2004 and on the periodic 

rolls beginning April 17, 2005. 
3

bearing the DOT # 241.367-014. The position involved investigating customer complaints about 

merchandise, service, billing, or credit rating. It might require keying information into a 

computer to obtain computerized records. The physical duties of the position, which was 

characterized as sedentary, included occasionally lifting and exerting force of up to 10 pounds. 

Sedentary work allows sitting most of the time and only requires brief periods of standing or 

walking. The rehabilitation counselor determined that state employment services showed the 

position of customer complaint clerk was available in sufficient numbers so as to make it 

reasonably available within appellant’s commuting area. 

In a letter dated July 16, 2015, OWCP advised appellant that she was only partially 

disabled and that the position of customer complaint clerk was medically and vocationally 

consistent with her medical limitations and work experience. It found that appellant was capable 

of earning wages at the rate of $360.00 per week as a customer complaint clerk and that the 

position was reasonably available within her commuting area. OWCP provided an attachment 

detailing the application of the Shadrick formula.4

 Appellant was provided 30 days to submit 

evidence and argument challenging the proposed action. No response was received within the 

time allotted. 

In a decision dated August 24, 2015, OWCP reduced appellant’s compensation effective 

August 24, 2016 based on her capacity to earn wages as a customer complaint clerk. It found 

that the evidence of record showed that appellant was vocationally and physically capable of 

working as a customer compliant clerk. OWCP applied the Shadrick formula to adjust her 

compensation. This resulted in 51 percent wage-earning capacity, or 49 percent loss of wageearning capacity. 

In a March 17, 2016 report, Dr. Girod provided work restrictions of lifting limited to 10 

pounds and no overhead reaching more than four times per hour. 

Appellant requested a hearing with an OWCP hearing representative. During the hearing 

held on April 14, 2016, she testified that she could not work as a customer complaint clerk 

because she could only type about 22 words per minute and was not capable of typing all day. 

Appellant asserted that she could not lift and handle heavy objects and noted that she was 

overweight, had diabetes, and took anxiety medication. 

By CA-1032 letter dated June 13, 2016, OWCP informed appellant that federal 

regulations required her to make an affidavit relative to any earnings or employment during the 

previous year and that an EN1032 form was enclosed for that purpose. It regularly sent her such 

a letter requesting that she complete an EN1032 form with regard to her employment activity, if 

any, within the past 15 months.5

 OWCP notified appellant that she had to fully answer all 

questions on the form and return the statement within 30 days or her benefits would be 

 4 See infra note 15. 

5

 The EN1032 form also requests information with respect to dependents, receipt of other federal benefits, thirdparty settlements, and fraud offenses. 
4

suspended pursuant to 20 C.F.R. § 10.528. The letter was mailed to her address of record at the 

time.6 No response was received within the allotted period. 

In a decision dated June 22, 2016, OWCP’s hearing representative affirmed OWCP’s 

August 24, 2015 decision reducing appellant’s compensation effective August 24, 2016 based on 

her capacity to earn wages as a customer complaint clerk. 

By decision dated August 9, 2016, OWCP suspended appellant’s compensation effective 

August 9, 2016 for failure to complete the EN1032 form as requested. It noted that, if she 

completed and returned an enclosed copy of the form, her compensation benefits would be 

restored retroactively to the date they were suspended. 

LEGAL PRECEDENT -- ISSUE 1 

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

 Its burden of 

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

proper factual and medical background.8

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 wageearning 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 the injury, degree of physical impairment, usual 

employment, age, qualifications for other employment, availability of suitable employment, and 

other factors and circumstances which may affect wage-earning capacity in the 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 in the selected position does not establish that the work is not reasonably 

available in his commuting area.12

 6

 Appellant had advised OWCP of her new address in April 2016. 

7 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005). 

8 Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

9 E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C. § 8115(a). 

10 Albert L. Poe, 37 ECAB 684, 690 (1986). 

11 Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See 

Glen L. Sinclair, 36 ECAB 664, 669 (1985). 

12 See Leo A. Chartier, 32 ECAB 652, 657 (1981). 
5

In determining wage-earning capacity based on a constructed position, consideration is 

given to the residuals of the employment injury and the effects of conditions which preexisted 

the employment injury.13 In determining wage-earning capacity based on a constructed position, 

consideration is not given to conditions which arise subsequent to the employment injury.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 or to an OWCP wage-earning capacity specialist for selection of a position, listed in 

the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open 

labor market, that fits that 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 or other applicable service. 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.15 

ANALYSIS -- ISSUE 1 

OWCP accepted that on June 25, 2004 appellant sustained right shoulder and rotator cuff 

sprains, bilateral shoulder impingement syndrome, temporary aggravation of left shoulder 

osteoarthritis, and left shoulder tendinitis. She received disability compensation. OWCP 

received information from appellant’s attending physician, Dr. Girod, who found that appellant 

had a partial capacity to perform work for eight hours per day subject to specified work 

restrictions. Appellant’s vocational rehabilitation counselor determined that appellant was able 

to perform the position of customer complaint clerk and that state employment services showed 

the position was available in sufficient numbers so as to make it reasonably available within 

appellant’s commuting area. Appellant’s vocational rehabilitation counselor is an expert in the 

field of vocational rehabilitation and OWCP may rely on her opinion regarding reasonably 

availability and vocational suitability.16 

The Board finds that review of the medical evidence of record reveals that appellant is 

physically capable of performing the position of customer complaint clerk. Appellant did not 

submit any evidence or argument showing that she could not perform the physical duties of the 

position. Between 2012 and 2016, Dr. Girod consistently provided work restrictions that 

allowed appellant to perform the physical duties of a customer complaint clerk. He provided 

work restrictions of lifting limited to 10 pounds and no overhead reaching more than four times 

per hour. At the hearing held on April 14, 2016, appellant argued that medical conditions other 

than her accepted work conditions prevented her from working as customer complaint clerk. 

 13 See Jess D. Todd, 34 ECAB 798, 804 (1983). 

14 N.J., 59 ECAB 397 (2008). 

15 See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Albert C. Shadrick, 5 ECAB 376 (1953). 

16 G.A., Docket No. 13-1351 (issued January 10, 2014). 
6

However, Dr. Girod considered appellant’s work-related and nonwork-related medical 

conditions in making his recommendations regarding work restrictions.17

OWCP considered the proper factors, such as availability of suitable employment and 

appellant’s physical limitations, usual employment, age and employment qualifications, in 

determining that the position of customer complaint clerk represented appellant’s wage-earning 

capacity.18 The weight of the evidence of record establishes that appellant had the requisite 

physical ability, skill, and experience to perform the position of customer complaint clerk and 

that such a position was reasonably available within the general labor market of her commuting 

area. Therefore, OWCP properly reduced appellant’s compensation effective August 24, 2015 

based on her capacity to earn wages as a customer complaint clerk. 

On appeal counsel argues that appellant is unable to work as customer complaint clerk 

because she can only type 22 words per minute, whereas as prior to her June 25, 2004 

employment injury she was able to type 60 words per minute. The Board notes that there is no 

indication that the customer complaint clerk would require typing more than 22 words per 

minute.19 Appellant’s vocational rehabilitation counselor was aware of appellant’s typing ability 

when she selected the position of customer complaint clerk and, as noted above, the 

rehabilitation counselor’s expert status means that OWCP may rely on her opinion regarding 

vocational suitability.20 Counsel also asserted that appellant could not perform the lifting and 

standing requirements of the position. However, the medical evidence of record, including the 

work restrictions recommended by Dr. Girod, shows that appellant is capable of performing the 

lifting and standing duties of a customer complaint clerk.21 

LEGAL PRECEDENT -- ISSUE 2 

FECA authorizes the Secretary of Labor to require a partially disabled employee to report 

his or her earnings from employment or self-employment, by affidavit or otherwise, in the 

manner and at the times the Secretary specifies.22

Under section 10.528 of OWCP’s implementing federal regulations, an employee in 

receipt of compensation benefits must complete an affidavit as to any work or activity indicating 

an ability to work which the employee has performed for the prior 15 months.23 If an employee 

 17 See supra notes 13 and 14. 

18 See Clayton Varner, 37 ECAB 248, 256 (1985). 

19 The typing requirements of the position of customer complaint clerk are not extensive. The position may 

require keying information into a computer to obtain computerized records. 

20 See supra note 16. 

21 The sedentary work of a customer complaint clerk allows sitting most of the time and only requires occasional 

lifting of 10 pounds and brief periods of standing or walking. 

22 5 U.S.C. § 8106(b). 

23 20 C.F.R. § 10.528. 
7

who is required to file such a report fails to do so within 30 days of the date of the request, his or 

her right to compensation for wage loss is suspended until OWCP receives the requested report. 

At that time, OWCP will reinstate compensation retroactive to the date of suspension if the 

employee remains entitled to compensation.24

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly suspended appellant’s compensation effective 

August 9, 2016 for failure to complete an EN1032 form as requested. 

On June 13, 2016 OWCP provided appellant with the EN1032 form and noted that 

federal regulations required her to complete the form and answer all questions concerning her 

employment or earnings. It properly notified appellant that, if she did not completely answer all 

questions and return the statement within 30 days, her benefits would be suspended. The record 

reflects that OWCP’s letter was properly sent to her address of record. Under the mailbox rule, a 

document mailed in the ordinary course of the sender’s business practices to the addressee’s last 

known address is presumed to be received by the addressee.25 

Appellant failed to timely submit the EN1032 form within 30 days. She was receiving 

wage-loss compensation and she was required to complete the EN1032 form. The failure to file 

an EN1032 form within 30 days results in the suspension of compensation.26 Thus, the Board 

finds that OWCP properly suspended appellant’s compensation benefits effective August 9, 2016 

pursuant to 20 C.F.R. § 10.528. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation effective 

August 24, 2015 based on her capacity to earn wages as a customer complaint clerk; and OWCP 

properly suspended appellant’s compensation effective August 9, 2016 for failure to complete an 

EN1032 form as requested. 

 24 Id. See also P.M., Docket No. 16-0382 (issued May 19, 2016).

25 See James A. Gray, 54 ECAB 277 (2002). 

26 See M.W., Docket No. 15-0507 (issued June 18, 2015). 
8

ORDER 

IT IS HEREBY ORDERED THAT the August 9 and June 22, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: September 13, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board