United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.W., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

INSPECTION OPERATIONS PROGRAM, 

Minneapolis, MN, Employer 

__________________________________________ 

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Docket No. 15-0441 

Issued: October 4, 2016 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 15, 2014 appellant, through counsel, filed a timely appeal from a 

December 5, 2014 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 OWCP properly reduced appellant’s compensation effective 

January 12, 2014 based on her capacity to earn wages in the constructed position of file clerk. 

FACTUAL HISTORY 

On August 25, 1995 appellant, then a 39-year-old food safety inspector, filed a claim for 

occupational disease, alleging allergies to dust, mold, and other irritants while performing her 

inspection duties. She stopped work on August 21, 1995 and did not return. On January 10, 

1996 OWCP accepted the conditions of allergic rhinitis and asthma. It paid appellant 

compensation for total disability from August 21, 1995 onward. By decision dated July 23, 

1997, appellant received a schedule award for 25 percent permanent impairment to each lung 

from July 20, 1997 to January 16, 1999. 

Since 2004 appellant has seen Dr. Curtis L. Hedberg, a Board-certified allergist, for 

treatment. In a December 14, 2010 report, Dr. Hedberg reported that appellant did well with her 

symptoms so long as she avoided exposures to smoke, strong odors, strong house cleaning agents 

and perfumes. He indicated that her response to allergy shots has been very good over the last 

few years and that her asthma and lung functions were stable. Dr. Hedberg noted that appellant 

has occasional residual symptoms that seem to be triggered by weather changes and accidental 

exposures to smoke or strong fragrances. He opined that she would not be able to keep gainful 

employment due to the severity of her sensitivity and hyperresponsiveness of her airways to 

irritants, such as weather changes, temperature changes, fumes, fragrances, and allergens. 

Dr. Hedberg indicated that the current treatment plan was to reduce the number of antigens she 

gets in her allergy shots to correlate with the loss of sensitivities shown by skin testing. 

Dr. Waqas Chishti, a Board-certified pulmonologist and OWCP referral physician, 

reviewed the statement of accepted facts (SOAF), and appellant’s medical record and set forth 

examination findings. In his May 5, 2011 report, he diagnosed atopic/allergic/extrinsic asthma 

which he opined was work related. Dr. Chishti noted that appellant would require ongoing 

therapy with medications, but could work so long as she was not exposed to her asthma triggers. 

On August 2, 2011 OWCP found a conflict in the medical opinion evidence between 

Dr. Chishti and Dr. Hedberg regarding appellant’s work capacity and arranged for an impartial 

medical examination with Dr. Sitaraman Subramanian, a Board-certified pulmonologist, to 

resolve the medical conflict. In a September 6, 2011 report, Dr. Subramanian reviewed the 

SOAF, a list of questions, and appellant’s medical record, and noted the history of appellant’s 

illness and that she had not worked in 16 years secondary to asthma. He also noted that she was 

involved in a serious car accident in 1983, with broken ribs and other fractures, and was 

unconscious for three days. Dr. Subramanian set forth examination findings and diagnosed 

bronchial asthma on medication and mild obesity. He opined, “[t]he patient seems to be in good 

health with adequate control of her asthma with the current medication. Appellant should be 

able to work eight hours a day with proper precaution including avoiding any trigger factor for 

her asthma.” Dr. Subramanian recommended that appellant continue her current medications 

including allergy shots. In a September 13, 2011 work capacity evaluation form, he noted that 

she was not capable of performing her usual job, but was able to work full-time regular work 
3

which precluded exposure to temperature extremes, airborne particles, gas, and fumes. Dr. 

Subramanian noted that prevention of possible future injury was the only reason for work 

limitations. 

On January 23, 2012 appellant was referred to vocational rehabilitation services based on 

Dr. Subramanian’s work restrictions. Following a vocational assessment and interview, the 

vocational rehabilitation counselor identified the position of file clerk and payroll clerk as being 

within appellant’s physical limitations, vocational skills, and geographical area. The file clerk 

position, as it appeared in the Department of Labor, Dictionary of Occupational Titles (DOT) 

No. 206-367-014, was classified as a light-duty position. The position required occasional 

stooping and crouching, as well as frequent reaching, handling, and fingering. No tasting or 

smelling was required. The position required appellant to file correspondence, cards, invoices, 

receipts, and other records, search for and investigate information contained in files, insert 

additional data on file records, complete reports, keep files current, and supply information from 

file data. It also required appellant to dispose of obsolete files in accordance with established 

procedures, and possible copying of records on photocopy or microfilm machines, possible 

typing of labels or reports and possible use of calculations to keep files current. Vocational 

preparation for the constructed position required 30 days to 3 months. The vocational 

rehabilitation counselor stated that appellant would receive basic computer skills training to 

make her competitive for this type of work. The position had no exposure to weather, extreme 

cold/extreme hot, wet/humid, atmospheric conditions, or other environmental conditions. 

Appellant underwent vocational training and entered placement services, which were 

unsuccessful. On September 10, 2013 the target positions were found to be vocationally suitable 

and available in appellant’s commuting area. The starting wage for the file clerk was $427.00 

per week in appellant’s commuting area. 

In a November 4, 2013 notice, OWCP advised appellant that it proposed to reduce her 

compensation for wage loss because the medical and factual evidence of record established that 

she was no longer totally disabled. It found that she had the capacity to earn the wages of a file 

clerk. OWCP requested that appellant submit additional evidence or argument within 30 days if 

she disagreed with the proposed action. 

Dr. Hedberg, in his November 11, 2013 report, noted that appellant had extrinsic asthma 

with many different triggers, most of which are triggered by fragrances, tobacco, smoke, and 

sometimes even natural odors. He noted that while appellant’s asthma and allergies have 

improved over the years with avoidance measures, such as learning coping mechanisms of 

avoidance and allergy shots, her ability to lead a normal life and be a productive citizen by 

gainful employment was not possible in most situations. Dr. Hedberg opined that in order for 

appellant to be gainfully employed, she had to be placed in the perfect work condition where 

there would be no possibility of any triggers for her asthma. He felt that she could only work in 

her home as the likelihood that an employer would cater to her long list of avoidances would be 

impossible. 

In a December 3, 2013 letter, counsel challenged the proposed reduction on the grounds 

that office environments provided exposure to triggers and were therefore medically unsuitable. 

He argued that the record supported limited exposure to triggers. Counsel referenced that the 
4

vocational rehabilitation counselor had expressed concerns of finding an environment that was 

free of triggers, and he described an event where appellant had an exacerbation of her condition 

during a job interview. He contended that, since there was no guarantee of a trigger-free 

environment, suitable work could not be found in an office environment and OWCP’s attempt to 

find office positions suitable was tantamount to fraud. Counsel noted that appellant was not able 

to work in a classroom environment so the majority of her vocational training was performed in 

the home, which attested to her inability to work in an office environment. He argued that unless 

OWCP could guarantee a trigger-free target environment, it could not issue a constructed wageearning decision as appellant could suffer a medical emergency. 

By decision dated January 2, 2014, OWCP finalized the wage-earning capacity 

determination effective January 12, 2014, based on appellant’s capacity to earn wages as a file 

clerk. It found that the record supported that appellant was capable of functioning in an 

environment other than the environment at home as demonstrated by her attendance of classes at 

school and her routine filing of Rehab 17 forms claiming reimbursement for expenses of 

attending classes outside the home. OWCP noted that, while appellant appeared to have an 

exacerbation of her condition during a job interview, the cause of the event was due to the 

cologne worn by the hiring person. It determined that the weight of the medical evidence rested 

with Dr. Subramanian’s impartial opinion expressed in his September 6, 2011 report. 

Dr. Hedberg’s November 11, 2013 medical opinion was highly speculative and prophylactic in 

nature and insufficient to overcome the weight of Dr. Subramanian’s opinion. Based on the 

formula developed in Albert C. Shadrick,

3

 OWCP determined appellant’s weekly pay rate in the 

former position to be $878.77, her adjusted earning capacity in the file clerk position was 

$266.06 per week which resulted in loss in earning capacity of $276.92 per week. Appellant’s 

compensation rate every four weeks was found to be $1,251.00 with a net compensation every 

four weeks of $865.60 based on applicable cost-of-living adjustments of $312.75 and deductions 

of $300.96 for a health insurance premium, $9.30 for basic life insurance premium, and $75.14 

for optional life insurance premium. 

On January 7, 2014 counsel requested a telephonic hearing, which was held on 

September 10, 2014. He reargued the points set forth in his December 3, 2013 letter that the 

constructed position was not medically suitable. Counsel also argued that the medical evidence 

establishing the work tolerances was stale as it was dated September 2011. He argued that many 

triggers have been documented and appellant was not employable due to her asthma condition. 

No new medical evidence was received. 

In a September 26, 2014 letter, counsel argued that the hearing representative was 

adversarial in his approach to the proceeding. He again referenced his arguments submitted on 

December 3, 2013 and argued against the reduction in compensation benefits. 

By decision dated December 5, 2014, an OWCP hearing representative affirmed the 

wage-earning capacity decision. He found Dr. Subramanian’s impartial medical opinion on 

work capacity was properly accorded the weight of the evidence and was not stale as there was 

no evidence in the record that those restrictions were no longer “reasonably current,” given the 

 3

 5 ECAB 376 (1953). 
5

significant passage of time since the injury occurred and the stable nature of the condition. The 

hearing representative further found that while counsel was arguing OWCP must prove with 

absolute certainty that a target position would not expose appellant to an asthma trigger, the “true 

test [wa]s whether there [wa]s any evidence that a particular position will with certainty expose 

the claimant to an asthma trigger.” He found that appellant offered no evidence that the position 

of file clerk was incompatible with Dr. Subramanian’s work restrictions. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation benefits.4

 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 wageearning capacity.5

 

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 the employee’s 

wage-earning capacity or if the employee has no actual wages, the 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 which may affect his or her wageearning capacity in his or her disabled condition.6

 

When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case to an OWCP vocational rehabilitation counselor for 

selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or 

otherwise available in the open market, that fit the employee’s capabilities with regard to his or 

her physical limitations, education, age, and prior experience. Once this selection is made, a 

determination of wage rate and availability in the 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. Shadrick7 and codified by regulations at 20 C.F.R. § 10.4038

should be applied. Subsection(d) of the regulations provide that the employee’s wage-earning 

capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay 

 4 H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 

197 (2005). 

5

 20 C.F.R. §§ 10.402, 10.403. 

6

 5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 

584 (1996). 

7

 5 ECAB 376 (1953). 

8

 20 C.F.R. § 10.403. 
6

rate of the position selected by OWCP, by the current pay rate for the job held at the time of the 

injury.9 

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.10 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. Additionally, 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 

Section 8123(a) of FECA12 provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.13 When the case is referred to an 

impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based on a proper factual background, must be 

given special weight.14 

ANALYSIS 

OWCP accepted that appellant sustained the conditions of allergic rhinitis and asthma as 

a result of performing her inspection duties as a food safety inspector. Since August 21, 1995, 

she has been out of work and in receipt of compensation for total disability on OWCP’s periodic 

rolls. On January 23, 2012 OWCP referred appellant to vocational rehabilitation services based 

on the restrictions set forth in the September 6, 2011 report of Dr. Subramanian, an impartial 

medical specialist. 

The Board finds Dr. Subramanian’s impartial medical evaluation is deficient as he does 

not provide a fully-rationalized opinion to resolve the conflict in medical evidence for the 

relevant issue in this case. In his brief report, Dr. Subramanian indicated that appellant had an 

eight-hour per day work capacity and included restrictions that appellant should take “proper 

precaution including avoiding any trigger factor for her asthma.” Dr. Subramanian, however, did 

not provide much specific discussion regarding appellant’s condition nor did he articulate with 

 9 Id. at § 10.403(d). 

10 James Henderson, Jr., 51 ECAB 268 (2000). 

11 Id. 

12 5 U.S.C. §§ 8101-8193. 

13 Id. at § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB 

435 (2003). 

14 B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB 

313 (2003); David W. Pickett, 54 ECAB 272 (2002). 
7

specificity the work restrictions in either his narrative report or his OWCP-5c form. The Board 

also notes that OWCP did not send Dr. Subramanian a description of the constructed file clerk 

position for an opinion as to appellant’s ability to perform the duties of this position in an office 

environment or request that he conduct another medical examination in light of Dr. Hedberg’s 

opinion that she could only work in her home where there was no possibility of any triggers for 

her asthma. As such the Board finds that his report was not sufficiently rationalized to be 

considered the weight of the medical evidence. 

As Dr. Subramanian’s evaluation of appellant was not sufficiently rationalized to resolve 

the conflict in medical opinion, OWCP has not met its burden of proof to establish the 

constructed position of file clerk as appellant’s wage-earning capacity. The Board will reverse 

OWCP’s hearing representative’s December 5, 2014 decision. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to justify the reduction of 

appellant’s compensation based on a capacity to earn wages in the constructed position of file 

clerk. The medical evidence on which OWCP relied, the report of the impartial medical 

specialist, Dr. Subramanian, was not sufficiently rationalized to resolve the conflict in medical 

opinion to establish relevant work limitations. 

ORDER 

IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: October 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board