United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Laguna Niguel, CA, Employer

__________________________________________

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Docket No. 19-0207

Issued: August 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:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On November 5, 2018 appellant, through counsel, filed a timely appeal from a 

September 10, 2018 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.3

 

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.

3 The Board notes that following the September 10, 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

ISSUE

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

compensation benefits, effective January 17, 2018, based on her capacity to earn wages in the 

constructed position of information clerk.

FACTUAL HISTORY

On May 17, 2007 appellant, then a 39-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that on April 17, 2007 she experienced pain in her neck, shoulders, back, 

knees, ankles, and feet due to factors of her federal employment including standing for long 

periods. On June 28, 2007 OWCP accepted her claim for bilateral plantar fibromatosis and lateral 

collateral ligament knee sprain. It initially paid appellant wage-loss compensation benefits on the 

supplemental rolls. OWCP paid compensation on the periodic rolls as of August 29, 2010. 

On July 24, 2014 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified 

orthopedic surgeon, for a second opinion examination to assess the status of her accepted 

conditions and to evaluate her work capacity. 

In a report dated August 28, 2014, Dr. Ma reviewed the statement of accepted facts (SOAF) 

and the available medical records. He noted that, following appellant’s employment injury of 

April 17, 2007, she had continued working in a supervisory role with restrictions which included 

no standing or walking more than four hours per day, no reaching, no heavy lifting, and no 

kneeling. Dr. Ma indicated that appellant worked as a supervisor for five years until 2012 when 

she was off work again because there was no light-duty work available for her. He indicated that 

appellant received wage-loss compensation payments for the 1.5 years she was off work. Dr. Ma 

related that in September 2013 appellant was rehired to work as a clerk with the same 

aforementioned restrictions, but she only worked four hours per day, and appellant received 

compensation payments for the four hours per day that she did not work.4 He indicated that on the 

date of the examination she complained of pain and throbbing in both knees and pain and burning 

on the balls of her feet and heels. Based upon his examination and review of appellant’s diagnostic 

studies, Dr. Ma diagnosed bilateral plantar fibromatosis/plantar fasciitis and mild age-related 

bilateral knee osteoarthritis. He related that the plantar fasciitis was directly caused by the accepted 

April 17, 2007 employment injury, but the knee arthritis was not medically connected to the 

employment injury. Dr. Ma further noted that appellant’s mild arthritis was nonindustrial and 

normal for her age. He indicated that she could perform her usual and customary duties with 

regard to her knees and feet.

In a work capacity evaluation form of the same date, Dr. Ma marked the box marked “no”

when asked whether appellant was capable of performing her usual job, but did not explain. He 

checked the box marked “yes” when asked whether she was able to work for eight hours per day 

with restrictions, and noted that such restrictions would apply indefinitely. 

On November 11, 2014 appellant underwent left foot plantar fascial release surgery on her

left foot.

 

4 Dr. Ma noted that appellant was terminated from her employment on August 22, 2014.
3

In a progress report dated April 23, 2015, Dr. Hosea Brown, III, Board-certified in internal 

medicine, diagnosed bilateral plantar fibromatosis and bilateral degenerative joint disease of the 

knees. He noted that appellant could return to modified work on April 23, 2015 with restrictions. 

In a progress report dated April 30, 2015, Dr. Domenic Signorelli, a podiatrist specializing 

in orthopedic surgery, related that appellant did not have complications with a prior plantar fascia 

procedure, and that she could return to work in adherence with Dr. Brown’s assessment. 

On May 19, 2015 OWCP referred appellant for vocational rehabilitation services. 

On November 9, 2015 OWCP referred appellant to Dr. Joseph Klemek, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine the status of her work-related 

condition, along with treatment recommendations and appropriate work restrictions. 

In a report dated December 1, 2015, Dr. Klemek indicated that he examined appellant, and 

reviewed the SOAF and available medical records. He related that she complained of pain on the 

bottom of both feet, pain at the back of both Achilles and in the ankles, aching in both knees, 

frequent feeling of instability, and persistent swelling in both knees. Dr. Klemek noted 

impressions of nonindustrial, bilateral mild patellar subluxation and chondromalacia; nonindustrial 

mild degeneration of both knees; resolved history of bilateral knee sprain; and release of the long 

plantar ligament at the left heel without obvious scarring and without acute symptoms regarding 

bilateral plantar fasciitis. He noted that the first two diagnoses were not medically connected to 

the April 17, 2007 employment injury, but the third and fourth diagnoses were medically 

connected by direct cause. Dr. Klemek indicated that appellant reached maximum medical 

improvement (MMI) again on or about April 2015, and she had no need for ongoing medical 

treatment. He noted that, as it related to her knees and feet, appellant’s physical limitations 

included no standing and walking in excess of five hours out of an eight-hour workday, and lifting, 

pushing, and pulling limited to 20 pounds and not for more than four hours per day out of an eight

hour day. In a work capacity evaluation of the same date, Dr. Klemek indicated that appellant 

could resume sedentary work with the aforementioned restrictions.

In a January 14, 2016 report, Dr. Brown related that he strongly disagreed with

Dr. Klemek’s assertions that appellant’s knee conditions were nonwork related. He indicated that 

the repetitive extending and flexing of her knees clearly increased the biomechanical load to these 

areas thereby causing significant cumulative trauma, and therefore a permanent aggravation of 

bilateral degenerative arthritis of her knees. With regard to appellant’s plantar fasciitis, Dr. Brown

noted that she had reached a point of MMI. He related that she could return to work on January 14, 

2016 with restrictions including no lifting over 30 pounds intermittently, no standing in excess of 

one to five hours per day, no walking in excess of two to five hours per day, no climbing in excess 

of one hour per day, and no kneeling.

In his February 4, 2016 report, Dr. Signorelli indicated that he agreed with Dr. Klemek’s 

evaluation and assessment.

In a letter dated March 1, 2016, OWCP informed appellant that she was being referred for 

vocational rehabilitation services based on Dr. Brown’s assessment that she was capable of 

performing modified duties with restrictions. 
4

In a vocational rehabilitation report dated April 4, 2016, D.P., a rehabilitation counselor, 

reiterated appellant’s occupational and medical history. She indicated that she had contacted 

appellant’s former employer, but no job offer had been received.

OWCP received subsequent vocational rehabilitation reports dated May 5, June 10, and 

July 5, 2016. In her July 5, 2016 report, D.P. developed vocational goals of receptionist or

information clerk. 

In a letter dated July 25, 2016, OWCP informed appellant that it reviewed the rehabilitation 

counselor’s plan for her to return to work as an information clerk or receptionist, and that the job 

duties were within her limitations.

In a letter dated November 27, 2017, OWCP proposed to reduce appellant’s wage-loss 

compensation because the medical and factual evidence of record established that she was no 

longer totally disabled, but rather was partially disabled and that she had the capacity to earn wages 

as an information clerk, DOT #237.367-022, at the rate of $520.00 per week. It found that the 

position of information clerk was medically and vocationally suitable, and existed in sufficient 

numbers in the commuting area. As appellant’s wage-earning capacity was less than the current 

pay of the job she held when injured, 48 percent, OWCP proposed to reduce her wage-loss 

compensation to $1,743.00 every four weeks. Appellant was afforded 30 days in which to submit 

contrary evidence.

In a letter dated December 22, 2017, counsel argued against the proposed reduction of 

compensation. In support thereof, he submitted a report dated November 30, 2017, and two duty 

status reports (Form CA-17) dated November 2 and 30, 2017 from Dr. Brown. In the

November 30, 2017 report, Dr. Brown noted that appellant complained of neck discomfort. He 

indicated that she could return to modified work on November 2, 2017. In the CA-17 of the same 

date, Dr. Brown related that appellant could resume modified duties with restrictions on 

November 30, 2017. In the November 2, 2017 Form CA-17, he indicated that she could resume 

modified work with restrictions on November 2, 2017.

By decision dated January 24, 2018, OWCP reduced appellant’s wage-loss compensation, 

effective January 17, 2018, based on her capacity to earn wages as an information clerk earning 

$520.00 per week, as the position was found to be medically and vocationally suitable.

On February 12, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. During the hearing, held on July 6, 2018, counsel argued that 

appellant did not have the physical capacity to maintain any kind of sustained work, regardless of 

the findings of the vocational rehabilitation counselor.

By decision dated September 10, 2018, OWCP’s hearing representative affirmed the 

January 24, 2018 decision finding that the position of information clerk was physically and 

vocationally suitable for appellant, and reasonably represented her wage-earning capacity. 
5

LEGAL PRECEDENT

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

modification of compensation benefits.5 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 wage-earning 

capacity (LWEC).6

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. If the actual earnings do not fairly and reasonably represent the employee’s wageearning 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 her wage-earning capacity in his or her 

disabled condition.7

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.8 Any incapacity to perform the 

duties of the selected position resulting from subsequently acquired conditions is immaterial to the 

LWEC that can be attributed to the accepted employment injury and for which appellant may 

receive compensation.9 

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

restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist 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 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.10 Finally, application of the 

principles set forth in Albert C. Shadrick11 and codified by regulations at 20 C.F.R. § 10.40312

 

5 M.K., Docket No. 17-0208 (issued April 17, 2018); H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 

ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 197 (2005).

6 20 C.F.R. §§ 10.402 and 10.403; J.H., Docket No. 18-1319 (issued June 26, 2019). 

7 5 U.S.C. § 8115(a); M.K., supra note 5; see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy 

Lams, 47 ECAB 584 (1996).

8 M.K., supra note 5; James Henderson, Jr., 51 ECAB 268 (2000).

9 G.E., Docket No. 18-0663 (issued December 21, 2018); James Henderson, Jr., 51 ECAB 268 (2000).

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

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

11 5 ECAB 376 (1953).

12 20 C.F.R. § 10.403.
6

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 

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

injury.13

ANALYSIS

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

compensation benefits, effective January 17, 2018, based on her capacity to earn wages in the 

constructed position of information clerk.

OWCP accepted appellant’s claim for bilateral plantar fibromatosis and lateral collateral 

ligament knee sprain. Appellant was initially paid compensation on the supplemental rolls, was 

later paid compensation on the periodic rolls, and was eventually referred for vocational 

rehabilitation services. OWCP based its January 24, 2018 LWEC determination on her capacity 

to earn wages as an information clerk.

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

before selecting an appropriate position that reflects her wage-earning capacity.14 In his medical 

report dated January 14, 2016, Dr. Brown supported appellant’s return to modified employment 

with restrictions including no lifting over 30 pounds intermittently, no standing in excess of one 

to five hours per day, no walking in excess of two to five hours per day, no climbing in excess of 

one hour per day, and no kneeling. In various reports in 2016, the vocational rehabilitation 

counselor selected the position of information clerk as possessing the specific vocational and 

medical requirements for appellant to resume work. The position selected was sedentary in nature 

requiring no lifting in excess of 10 pounds. It required no climbing, balancing, stooping, kneeling, 

crouching, crawling, fingering, feeling, tasting/smelling, far acuity, depth perception, 

accommodation, color or field vision, and only required occasional reaching and handling and 

frequent talking, hearing, and near acuity. Appellant, thus, has the physical capacity to perform 

the duties of the selected position of information clerk.15

The vocational rehabilitation specialist also found that the position of information clerk 

was reasonably available in appellant’s local labor market with an entry level weekly wage of 

$520.00.16

The Board finds that OWCP considered the appropriate factors in determining that the 

information clerk position represented appellant’s wage-earning capacity.17 These factors 

included availability of suitable employment and her physical limitations, usual employment, age, 

and employment qualifications.18 The evidence established that appellant had the requisite 

 

13 Id. at § 10.403(d).

14 M.K., supra note 5; William H. Woods, 51 ECAB 619 (2000).

15 Id.

16 See J.E., Docket No. 16-0006 (issued November 16, 2016).

17 M.K., supra note 5; John D. Jackson, 55 ECAB 465 (2004).

18 Id.
7

physical ability, skill, and experience to perform the position and that such a position was 

reasonably available within the general labor market of her commuting area. Counsel argued that 

she was not capable of performing the selected position due to the additional conditions of neck 

pain and residuals from bilateral plantar fibromatosis. As noted, 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 injuryrelated and preexisting conditions, but not impairments resulting from post-injury or subsequentlyacquired conditions.19

 The record presently before the Board does not substantiate a preexisting 

or causally related diagnosed neck condition. With regard to appellant’s residuals from the 

accepted condition of bilateral plantar fibromatosis, there is no evidence that this condition limited 

appellant’s ability to perform the duties of the selected position. Therefore, OWCP properly 

determined that the position of information clerk reflected her wage-earning capacity.20

OWCP also properly reduced her compensation pursuant to the principles set forth under 

Shadrick to $1,743.00 every four weeks, effective January 17, 2018, because the pay rate of the 

selected position was less than her date-of-injury salary. The wages in the selected position were 

reported as $13.00 per hour ($520.00 per week). OWCP applied the Shadrick formula to determine 

the LWEC. The earnings of $520.00 per week were divided by the current rate of pay for 

appellant’s date-of-injury job, to determine the wage-earning capacity of 48 percent.21 The pay 

rate for compensation purposes was then multiplied by the wage-earning capacity percentage.22 

This amount was subtracted from the pay rate for compensation purposes to determine the 

LWEC.23 OWCP found that appellant’s LWEC was $435.75 per week or $1,743.00 every four 

weeks. The record does not contain an error with respect to these calculations.24

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

compensation benefits, effective January 17, 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 January 17, 2018, based on her capacity to earn wages in the 

constructed position of information clerk.

 

19 Supra note 10.

20 M.K., supra note 5; James Smith, 53 ECAB 188 (2001).

21 20 C.F.R. § 10.403(d).

22 Id. at § 10.403(e).

23 Id.

24 See T.D., Docket No. 16-0028 (issued November 28, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the September 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board