United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Atwood, TN, Employer

__________________________________________

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Docket No. 19-0595

Issued: September 9, 2019

Appearances: Case Submitted on the Record

Stephanie N. Leet, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 24, 2019 appellant, through counsel, filed a timely appeal from an August 2, 

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

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.

 

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 appellant, through counsel, specifically appealed OWCP’s August 2, 2018 merit decision. 

Although OWCP’s October 24, 2018 merit decision which suspended appellant’s compensation benefits, effective 

October 14, 2018, is within the Board’s jurisdiction, appellant has not appealed that decision. Therefore, the Board 

will not address the October 24, 2018 suspension decision in this appeal. See 20 C.F.R. § 501.3(a)(c).

3 5 U.S.C. § 8101 et seq.
2

ISSUE

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

compensation benefits, effective July 22, 2018, based on her capacity to earn wages in the 

constructed position of general office clerk.

FACTUAL HISTORY

On May 21, 2014 appellant, then a 40-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on May 14, 2014 she injured her lower back and right leg when lifting 

a tub of flats from the floor to a case while in the performance of duty. She noted that she felt a 

pop in her lower back and experienced mild pain in her back and right leg, which gradually 

worsened by the end of the day. Appellant stopped work on May 15, 2014. OWCP accepted the 

claim for L4 herniated disc including inferiority extruded disc fragment. It paid appellant wageloss compensation for temporary total disability on the supplemental rolls beginning 

August 2, 2014. 

In a duty status report (Form CA-17) and work capacity evaluation (Form OWCP-5c) dated

June 10, 2016, Dr. Laverne R. Lovell, an attending Board-certified neurologist, diagnosed other 

intervertebral disc displacement, lumbar region due to the accepted May 14, 2014 employment 

injury. He advised that, while appellant could not perform her usual job, she could work four 

hours a day with restrictions. Dr. Lovell’s restrictions included no operation of a motor vehicle at 

work and no bending, stooping, twisting, pushing, or pulling. Appellant was also restricted to 

continuous sitting and standing, intermittent simple grasping, and casing mail four hours a day, 

and intermittent walking. Dr. Lovell indicated that these restrictions applied until her next monthly 

appointment when a magnetic resonance imaging (MRI) scan would be completed.

OWCP, on July 1, 2016, referred appellant for vocational rehabilitation based on

Dr. Lovell’s June 10, 2016 report. In a letter dated August 4, 2016, a vocational rehabilitation 

counselor requested that the employing establishment determine whether it had a position available 

for appellant within the restrictions set forth by Dr. Lovell. 

On September 8, 2016 the employing establishment offered appellant a part-time, modified 

rural carrier position for seven and one-half hours a week, over a five-day workweek, which was 

available effective September 17, 2016. Appellant accepted the position and returned to work on 

September 9, 2016. She worked one hour a day in the position through September 16, 2016. 

Effective September 17, 2016, appellant accepted the modified position working one and one-half 

hour a day, five days a week. 

OWCP thereafter received an October 17, 2016 functional capacity evaluation (FCE) 

report which revealed that appellant was capable of performing light to medium physical demand 

work with occasional lifting of 22 pounds from floor to waist, 20 pounds from waist to shoulder, 

and 20 pounds from shoulder to overhead; carrying 30 pounds; pushing 49 pounds; and pulling 42 

pounds. Appellant could also occasionally stand up to 1 hour, walk up to .23 miles, crawl up to 

10 feet, kneel, squat, bend, climb up and down stairs, and sit frequently. She could never crouch 

due to increased low back pain.
3

OWCP also received an additional Form CA-17 report dated November 10, 2016 by

Dr. Lovell who reiterated his diagnosis of other intervertebral disc displacement, lumbar region 

due to the accepted May 14, 2014 employment injury. Dr. Lovell advised that appellant could 

perform light to medium physical demand work. 

On March 31, 2017 appellant stopped work after being notified by the employing 

establishment that it could no longer provide work compatible with her restrictions. 

OWCP received a Form CA-17 report dated April 21, 2017 by Dr. Toby Hampton, a 

Board-certified family practitioner. Dr. Hampton diagnosed other intervertebral disc 

displacement, lumbar region due to the accepted May 14, 2014 employment injury. He advised 

that appellant could perform light-duty work, four hours a day with restrictions. The restrictions 

included no pulling, pushing, or lifting more than 20 pounds continuously for three to four hours

and intermittently for 20 to 30 minutes; standing more than 60 minutes; and climbing, kneeling, 

bending/stooping, twisting, driving a vehicle, and operating machinery. Appellant was allowed to 

sit continuously for three to four hours and intermittently for 20 to 30 minutes; stand and reach 

above shoulder level continuously for one hour; walk intermittently for .2 hours; and perform 

simple grasping and fine manipulation continuously for four hours.

On May 9, 2017 OWCP again referred appellant for vocational rehabilitation based on

Dr. Hampton’s

4 April 21, 2017 report. A vocational rehabilitation counselor, on July 21, 2017, 

completed a job classification (Form CA-66) for the position of general office clerk, listed in the 

Department of Labor, Dictionary of Occupational Titles and bearing the DOT #219.362-010.5 The 

physical demand was listed as light duty, which required occasional lifting of 20 pounds; frequent 

lifting of 10 pounds; reaching, handling, fingering, talking, and hearing; and no climbing, 

balancing, stooping, kneeling, crouching, or crawling. The position involved tasks including, but 

not limited to maintaining records of business transactions and office activities and other general 

clerical duties. 

The rehabilitation counselor noted that appellant would meet the specific vocational 

preparation for the position in three to six months by obtaining basic computer skills training at 

Tennessee Career Center in Jackson, Tennessee for a period of approximately two months

followed by on-the-job training. He determined that the position was performed in sufficient 

numbers to be reasonably available within the commuting area based on information from the state 

Department of Labor and Workforce Development at a weekly wage of $340.00.

OWCP thereafter received an additional Form CA-17 report, dated October 26, 2017, from

Dr. Hampton who again advised that appellant could perform light-duty work, four hours a day 

with restrictions. The restrictions were the same restrictions, with the exceptions of no walking

and driving a vehicle intermittently for one hour, set forth in his April 21, 2017 CA-17 form report. 

 

4 The Board notes that it appears OWCP inadvertently misidentified the April 21, 2017 Form CA-17 report as being 

authored by Dr. Lovell rather than Dr. Hampton. The report indicates that the author’s specialty is family medicine. 

As noted, Dr. Lovell is a Board-certified neurologist, while Dr. Hampton is a Board-certified family practitioner. 

5 The vocational rehabilitation counselor also completed CA-66 forms for the positions of hospital admitting clerk 

(DOT #205.362-018) and receptionist (DOT #237.367-038).
4

On December 13, 2017 a rehabilitation specialist indicated that appellant had completed 

computer training and that placement assistance would begin on December 28, 2017.

OWCP, in a letter dated January 11, 2018, requested that Dr. Lovell review the position

description for among other things, general office clerk and a labor market survey for this position. 

It specifically requested that he provide whether the restrictions set forth in his October 26, 2017 

Form CA-17 report6represented appellant’s current restrictions and whether she was capable of 

performing the duties of the general office clerk position.

In a Form OWCP-5c report dated February 5, 2018, Dr. Lovell noted that appellant could 

not perform her usual job due to continued pain in the lower back and legs. He noted, however, 

that she could perform sedentary or light work for eight hours a day with permanent restrictions. 

These included: sitting, standing, and lifting 20 pounds for four hours; and walking, pushing 20 

pounds, and pulling 20 pounds for two hours; and no squatting, kneeling, or climbing. Dr. Lovell 

recommended 10-minute breaks every two hours and 30-minute breaks every four hours. 

OWCP, in a letter dated March 8, 2018, requested that Dr. Lovell clarify how appellant 

could work eight hours a day when she could only sit four hours a day. 

Dr. Lovell responded in a letter dated March 21, 2018 that the four-hour sitting and 

standing restrictions were meant to indicate continuous sitting or standing. He advised that 

appellant could sit for longer periods during the day if she had frequent breaks where she could 

get up, stand, and move around. Dr. Lovell concluded that she was able to sit, stand, and move 

around while working such that she could maintain a reasonable comfort level.

In a letter dated June 21, 2018, OWCP notified appellant that it proposed to reduce her 

wage-loss compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised her that she was only 

partially disabled and that the position of general office clerk (DOT #219.362-010) was medically 

and vocationally consistent with her medical limitations, work experience, and education. OWCP 

explained that the physical requirements of the general office clerk did not exceed the restrictions 

imposed by Dr. Lovell in his June 10, 2016 report. It found that appellant was capable of earning 

wages at the rate of $340.00 per week as a general office clerk and that the position was reasonably 

available within her commuting area. OWCP provided an attachment detailing the application of 

the formula set forth in Albert Shadrick.

7

 Appellant was afforded 30 days to submit evidence and 

argument challenging the proposed action. 

In a letter dated July 19, 2018, appellant, through counsel, disagreed with the proposed 

reduction of compensation. Counsel contended that Dr. Lovell’s June 10, 2016 work restrictions 

were stale and should not be used as appellant’s valid work restrictions. Alternatively, she asserted 

that the general office clerk position was not within the restrictions set forth by Dr. Lovell. 

Counsel maintained that his June 10, 2016 Form OWCP-5c report indicated that appellant could 

only work four hours a day and that her restrictions were not permanent as they only applied until 

 

6 The record does contain a Form CA-17 report from Dr. Lovell. As previously noted by the Board, however, the 

author of the October 26, 2017 Form CA-17 report is Dr. Hampton. 

7 5 ECAB 376 (1953); as codified by regulation in 20 C.F.R. § 10.403.
5

her next monthly appointment when a lumbar spine MRI scan was completed. She referenced the 

findings of the October 17, 2016 FCE8and asserted that these findings, as well as subsequent Form 

CA-17 reports from Dr. Lovell, provided additional work restrictions that were not within the 

requirements of the general office clerk position. 

Counsel submitted an October 20, 2017 report from Dr. Hampton who noted appellant’s 

complaints of low back pain radiating down her right leg. Dr. Hampton indicated that appellant

reported that pain medication allowed her to work part time. 

Dr. Hampton discussed examination findings and diagnosed low back pain and 

degenerative disc disease of the lumbar spine with failed back surgery.

OWCP subsequently received an additional Form CA-17 report dated July 7, 2018 by

Dr. Hampton who reiterated that appellant could work four hours a day with restrictions. 

Appellant was allowed to lift eight pounds continuously for three to four hours and 17 pounds 

intermittently for 20 to 30 minutes; sit and stand continuously for four hours; and walk, kneel, 

bend, stoop, twist, reach above shoulder with a maximum of 14 pounds, drive a vehicle, and 

operate machinery intermittently for 20 to 30 minutes. 

By decision dated August 2, 2018, OWCP reduced appellant’s wage-loss compensation 

benefits, effective July 22, 2018, based on her ability to earn wages of $340.00 per week as a 

general office clerk. It noted that the physical duties of the position were in accordance with the 

restrictions provided by Dr. Lovell in his March 21, 2018 report, and that her rehabilitation 

counselor had determined that she was vocationally capable of performing the constructed 

position. OWCP applied the Shadrick9formula to adjust appellant’s compensation. 

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.10 Its burden of

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

factual and medical background.11

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.12 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

 

8 The Board notes that it appears counsel inadvertently related that the FCE was performed on November 10, 2016 

rather than October 17, 2016 as she referenced the exact findings contained in the October 17, 2016 FCE. 

9 Supra note 7.

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

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

12 5 U.S.C. § 8115(a).
6

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.13 

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

market under normal employment conditions.14 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.15 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 or her

commuting area.16

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.17 

Additionally, the Board has held that a loss of wage-earning capacity (LWEC) determination must

be based on a reasonably current medical evaluation.18

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.19 Lastly, OWCP applies the principles set forth in Albert C. Shadrick20 as

codified in section 10.403 of OWCP’s regulations,21 to determine the percentage of the employee’s

LWEC.22

 

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

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

Constructed Position, Chapter 2.816.3 (June 2013); see also M.P., Docket No. 18-0094 (issued June 26, 2018). 

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

16 See O.V., Docket No. 16-1702 (issued September 13, 2017).

17 See B.G., Docket No. 17-0477 (issued September 20, 2017).

18 Id.

19 Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.816.6.a (June 2013).

20 Supra note 7.

21 20 C.F.R. § 10.403.

22 See D.S., Docket No. 17-0496 (issued May 25, 2017).
7

ANALYSIS

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

compensation benefits, effective July 22, 2018, based on her capacity to earn wages in the 

constructed position of general office clerk.

The duties of the constructed position of general office clerk involved tasks including, but 

not limited to, maintaining records of business transactions and office activities and other general 

clerical duties. The physical demands of the position required occasional lifting of 20 pounds;

frequent lifting of 10 pounds; reaching, handling, fingering, talking, and hearing; and involved no 

climbing, balancing, stooping, kneeling, crouching, or crawling. 

OWCP relied on the opinion of appellant’s physician, Dr. Lovell, in finding that the 

constructed position was within appellant’s physical limitations. On January 11, 2018 it requested 

that Dr. Lovell review the position description for general office clerk and determine whether 

appellant could perform the identified position. In response, Dr. Lovell submitted a Form 

OWCP-5c report dated February 5, 2018 in which he advised that while appellant could not 

perform her usual job she could perform sedentary light work eight hours a day with permanent 

restrictions. These included sitting, standing, and lifting 20 pounds for four hours; and walking, 

pushing 20 pounds, and pulling 20 pounds for two hours; and no squatting, kneeling, or climbing. 

Dr. Lovell recommended 10-minute breaks every two hours and 30-minute breaks every four

hours. OWCP later sought clarification from Dr. Lovell regarding his finding that appellant could 

work eight hours a day, but only sit for four hours a day. Dr. Lovell subsequently explained that 

his sitting restriction referred to continuous sitting. He related that appellant could sit for longer

periods during the workday as long as she took frequent breaks to get up, stand, and move around. 

As the physical requirements of the general office clerk position are within the restrictions 

recommended by Dr. Lovell, the Board finds that the weight of the evidence establishes that 

appellant had the physical capacity to perform the duties of the constructed position.23

Dr. Hampton, appellant’s physician, has submitted multiple reports detailing his treatment 

of appellant. He opined that appellant could only work four hours a day with restrictions. The 

Board finds, however, that these reports do not establish appellant’s disability from performing 

work in the constructed position of general office clerk. Dr. Hampton did not indicate that he had 

reviewed the duties required of a general office clerk. These reports merely provided findings and 

did not offer an opinion as to whether appellant was capable of performing the duties required for 

the constructed position of a general office clerk.24 Furthermore, Dr. Hampton provided work

restrictions more stringent than those in the constructed position of general office clerk, but did 

not explain why appellant’s work restrictions were further limited.

25

 As such, the Board finds that 

 

23 See C.H., Docket No. 19-0136 (issued May 23, 2019); C.M., Docket No. 18-1326 (issued January 4, 2019); J.B., 

Docket No. 17-0817 (issued April 26, 2018); T.J., Docket No. 16-1473 (issued January 26, 2017).

24 See J.S., Docket No. 12-1343 (issued April 22, 2013).

25 G.A., Docket No. 15-161 (issued May 6, 2015).
8

these reports fail to establish that appellant was unable to perform the duties of a general office 

clerk.26

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

not only physical limitations, but also take into account appellant’s work experience, age, mental 

capacity, and educational background.27 The Board finds that appellant had received the necessary 

vocational and educational preparation for the constructed position of general office clerk. The 

rehabilitation counselor determined that appellant would acquire the skills necessary to perform 

the position of general office clerk by attending computer skills training at Tennessee Career 

Center, which she completed as of December 13, 2017. The counselor found that the position 

existed in sufficient numbers within appellant’s commuting area. The rehabilitation counselor 

concluded that, based on appellant’s education, work experience, and transferable skills that she 

was capable of earning the median wages in the identified position as a skilled worker. As he is 

an expert in the field of vocational rehabilitation, OWCP may rely on his opinion in determining 

whether the job is vocationally suitable and reasonably available.28

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 she had the capacity to perform the selected position.29 OWCP also properly 

determined her loss of wage-earning capacity in accordance with the formula developed in 

Shadrick and codified at 20 C.F.R. § 10.403. It, therefore, properly determined that the position 

of general office clerk reflected appellant’s wage-earning capacity, and properly reduced her 

compensation effective July 22, 2018.

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 has met its burden of proof to reduce appellant’s wage-loss 

compensation benefits, effective July 22, 2018, based on her capacity to earn wages in the 

constructed position of general office clerk.

 

26 J.S., supra note 24.

27 See C.H., supra note 23; C.M., supra note 23; T.J., supra note 23.

28 See C.H., supra note 23; J.B., supra note 23; Federal (FECA) Procedure Manual, supra note 14 at Chapter 

2.814.6(b) (June 2013).

29 See supra note 23.
9

ORDER

IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board