United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, Louisville, KY, 

Employer

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Docket No. 17-0018

Issued: January 3, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 October 6, 2016 appellant, through counsel, filed a timely appeal from a July 27, 2016

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

compensation, effective September 20, 2015, based on his capacity to earn wages in the selected 

position of a quality assurance manager. 

FACTUAL HISTORY

On January 29, 1997 appellant, then a 45-year-old lock and dam equipment mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that, while at work on that date, he was 

pushing a pipe wrench to tighten a section of pipe that was being replaced when he felt a pop 

in his back and pain from his right arm to his neck.

3

 OWCP accepted the claim for right 

shoulder acromioclavicular strain, closed acromioclavicular dislocation, cervical strain, 

aggravation of cervical radiculopathy, aggravation of cervical degenerative disc disease, and 

adjustment disorder with depressed mood. Following his injury, appellant returned to work 

on February 3, 1997, but stopped work again on February 13, 1997. He returned to a full-time 

limited-duty position on August 18, 1997, but sustained a recurrence of total disability,

effective November 5, 1997. Appellant returned to a full-time limited-duty position on 

January 12, 1998. 

On December 1, 1998 appellant filed another traumatic injury claim (Form CA-1) 

alleging that on August 6, 1998 he injured his right shoulder when he grabbed an electrical 

cable that was falling out of the cable tray. OWCP assigned that claim File No. xxxxxx262

and accepted it for right shoulder acromioclavicular (AC) separation.4 On January 20, 1999 a 

Mumford procedure was performed on appellant’s right shoulder. Appellant had two previous 

right shoulder surgeries in June and November 1997. OWCP later expanded the acceptance 

of appellant’s claim to include depression and aggravation of cervical radiculopathy. 

Appellant was totally disabled from work from August 6, 1998 to February 28, 2000 when he 

resumed work in a modified capacity as a construction inspector.5

In a January 14, 2013 report, Dr. Oliver C. James, III, a Board-certified internist, 

indicated that appellant did not work despite being released to work.

In a March 1, 2013 work capacity evaluation (OWCP-5c), Dr. Jeffery Campbell, a

Board-certified family practitioner, opined that appellant was unable to ascend or descend 

heights called for in his job. However, he explained that appellant was able to work for eight 

hours per day with restrictions, which included no reaching above the shoulder, and no 

repetitive movements of the elbows or wrists for zero hours, not to use his right arm and carry 

 

3 OWCP assigned the claim File No. xxxxxx777.

4 OWCP File Nos. xxxxxx262 and xxxxxx777 have been administratively combined, with File No. xxxxxx777 

serving as the master file.

5 On June 2, 2002 OWCP granted appellant a schedule award for 30 percent permanent impairment of the right 

arm.
3

or lift any loads. Dr. Campbell also advised against pushing, pulling, and lifting. He also 

indicated that these restrictions were permanent.

In a March 25, 2013 report, Dr. James indicated that appellant was functioning at a 

high level with the use of the medicine.

On March 28, 2013 OWCP referred appellant for a second opinion, along with a 

statement of accepted facts (SOAF), a set of questions and the medical record to Dr. Edward 

Gregory Fisher, a Board-certified orthopedic surgeon.

In an April 18, 2013 report, Dr. Fisher noted appellant’s history of injury and treatment, 

examined appellant, and provided findings. He determined that appellant was capable of 

working eight hours a day in a light-duty job avoiding reaching overhead with his right upper 

extremity. Dr. Fisher provided a weight limitation of lifting/pushing pulling/carrying 10 

pounds frequently and 20 pounds occasionally. He opined that the restrictions were permanent 

in duration and were due to the AC joint separation and the cervical radiculopathy.”

On May 22, 2013 a second opinion psychiatric examination was completed by

Dr. Gary S. Weinstein, a Board-certified psychiatrist. Dr. Weinstein indicated that appellant 

denied symptoms of depression and had no dysphoria or significant anxiety. He found no 

evidence of a thought disorder, with no hallucinations or delusions. Furthermore, appellant 

was forward thinking with no suicidal or homicidal ideation or plans and his cognitions were 

entirely intact. Dr. Weinstein opined, “[t]here is no psychological problem that would interfere 

with his performance of the regular duties of a lock and dam equipment mechanic. [Appellant]

does not want any mental health treatment now and, based on my evaluation, does not need 

treatment.”

On July 11, 2013 the employing establishment offered appellant the position of 

construction control representative which was permanent and claimed to accommodate his medical 

conditions. On July 26, 2013 appellant declined the offered position, asserting that he lived too 

far away and would not be able to stay awake on the ride home, as he was on medication. On

July 30, 2013 OWCP referred him to a vocational rehabilitation counselor.

By letter dated August 9, 2013, OWCP informed the employing establishment that the 

offered position was not suitable. 

On February 7, 2014 the employing establishment rescinded the construction control 

position and proposed to separate appellant from his federal employment. It explained that the 

reason for this proposed separation was appellant’s physical inability to perform the duties of his 

position.

Upon completion of rehabilitation services and based upon appellant’s age, experience, 

education, medical restrictions, and a labor market survey, the rehabilitation counselor concluded 

that appellant was capable of reemployment as a quality assurance manager, listed in the 

Department of Labor, Dictionary of Occupational Titles (DOT# 012167014). The quality 

assurance manager position was classified as a sedentary light position. The duties included: 
4

planning; coordinating; and directing quality control program designed to ensure continuous 

production of products, consistent with embellished standards. The physical requirements were 

described as sedentary and included lifting up to 10 pounds occasionally, and some light lifting up 

to 20 pounds. No climbing, balancing, stooping, kneeling, crouching, or crawling was required. 

Additionally, it required some occasional reaching, handling, and fingering. The average weekly 

earnings of a quality assurance manager were listed as $956.00 per week within a 50-mile radius 

of the Milton, Kentucky area based on wage data from the Bureau of Labor Statistics, U.S. 

Department of Labor, Occupational Outlook Handbook, 2010-2011. The hourly wage was $23.91 

with an annual rate of $49,720.00. The vocational rehabilitation counselor determined that the 

position was available in sufficient numbers on a full-time basis in appellant’s commuting area

based on a labor market survey.

In a November 4, 2014 memorandum, OWCP determined that vocational rehabilitation 

was interrupted as clarification was needed regarding the reaching restriction.

A December 4, 2014 functional capacity evaluation (FCE), revealed that appellant was 

capable of sedentary work.

On January 7, 2015 OWCP referred appellant for a second opinion, along with a SOAF, a 

set of questions, and the medical record to Dr. John William Wolf, Jr., a Board-certified orthopedic 

surgeon.

In a January 28, 2015 report, Dr. Jonathan D. Cole, a Board-certified clinical health 

psychologist, recommended that appellant be weaned off Valium “as it increases depression, 

decreases deep sleep, [and] decreases efficacy of opioids.”

In a report dated January 30, 2015, Dr. Wolf described appellant’s history of injury and 

treatment, examined appellant, and provided his findings. He found that appellant had a noticeable 

tremor in both hands, which appellant indicated that he had since childhood. Dr. Wolf found 

excellent range of motion of his lumbar spine and that appellant was able to touch his toes with 

his knees in full extension. Furthermore, he was able to reassume the erect position without 

apparent pain. Regarding the cervical spine, Dr. Wolf found decreased range of motion in rotation 

with slight asymmetry and that appellant was able to rotate 35 degrees to his right, but 45 degrees 

to his left. He determined that attempted further rotation caused pain. Dr. Wolf determined that 

appellant was able to flex comfortably until his chin rested on his chest and that extension was 

painful beyond 5 to 10 degrees. Furthermore, there was tenderness to palpation over the entire 

posterior aspect of the cervical spine. Dr. Wolf found no obvious muscle atrophy in the shoulder 

girdle muscles and two deep pigmented areas of scarring over his left scapula. He explained that 

both shoulders showed a full, pain-free range of passive motion. Dr. Wolf conducted muscle 

testing and found no pain or weakness demonstrable with anterior flexion against resistance on 

either side. However, he determined that there was tenderness to palpation over the anterior aspect 

of the right shoulder. Dr. Wolf found sensory examination in the right upper extremity was 

abnormal. He also noted appellant’s complaints of decreased sensation to light touch over the 

entire brachium. Dr. Wolf found that the only area of relatively normal sensation to light touch 

was a strip approximately two to three centimeters wide down the dorsal aspect of appellant’s 

forearm. He explained that all other areas elicited a description that the area was either numb and 
5

tingling, or had decreased sensation. Dr. Wolf found the same with the digits of appellant’s right 

hand with varying degrees of decreased sensation. He concluded that appellant had essentially full

range of motion of his shoulder with decreased sensation in areas of his right upper extremity. 

Dr. Wolf opined that these sensory changes in his right upper extremity were due to his cervical 

spine problems rather than to his right shoulder problems. Regarding whether appellant’s cervical 

degenerative disc disease and stenosis was caused or aggravated by his 1997 and 1998 work 

injuries, he opined that it was likely that his cervical degenerative disc disease and cervical spinal 

stenosis was aggravated by his 1997 and 1998 work injuries. Dr. Wolf opined that it was probable 

that some of the symptoms that appellant exhibited after his two accepted work injuries were 

manifestations of cervical disease. Regarding residuals and work ability, he explained that 

appellant was “certainly qualified for a sedentary type of job without question. Dr. Wolf noted 

that appellant can also do a job which is not physically demanding. He is unsuited, however, for 

work overhead due to a combination of complaints of right shoulder pain and inability to extend 

his cervical spine for any prolonged length of time as might be required if he were to be doing 

work overhead.” Dr. Wolf also noted in the work capacity evaluation form that appellant was able 

to perform four hours of reaching and reaching above the shoulder. Additionally, he could lift 20 

to 25 pounds for eight hours per day.

By letter dated March 12, 2015, OWCP advised appellant that the selected position of a 

quality assurance manager, DOT #012167014 in the amount of $956.00 per week, was suitable to 

his restrictions and that he would receive 90 days of placement assistance to help him locate such 

a position. It further advised appellant that his compensation would likely be reduced by the end 

of this period to reflect his wage-earning capacity based upon a position that OWCP determined 

to be within his restrictions and abilities.

In a May 5, 2015 cognitive behavioral therapy session note, Dr. Susan Snyder, a Boardcertified family practitioner, advised that Dr. James weaned appellant off opioids and Valium and 

appellant would consider being medically treated for depression.

In a July 7, 2015 closure report, the vocational rehabilitation counselor noted that the 

quality assurance manager position was reasonably available in appellant’s commuting area with 

wages of $605.00 to $956.00 per week.

On July 7, 2015 OWCP proposed to reduce appellant’s wage-loss compensation 

because the medical and factual evidence of record established that he was no longer totally 

disabled. It found that he had the capacity to earn the wage of a quality assurance manager,

DOT #012167014, at the rate of $956.00 per week. OWCP provided appellant 30 days to 

submit additional evidence or argument in support of any objection to the proposed reduction. 

In a letter dated August 8, 2015, appellant indicated that he was unable to find employment 

due to lack of experience, training, and education. He indicated that most of the positions required 

special education and training. Appellant further argued that he would be precluded from these 

positions as he would not be able to pass the drug testing due to his pain medications. He indicated 

that he believed he was not qualified for the position. Additionally, there were no jobs with the 

listed salary of $956.00.
6

In an August 6, 2015 report, Dr. James noted that appellant was seen for complaints of 

neck pain and a significant peripheral neuropathy. He diagnosed: cervical disc disease; status post 

anterior cervical discectomy and fusion; history of cervical radiculitis; and peripheral neuropathy. 

Dr. James determined that appellant was clinically stable and doing well. He recommended 

maintaining his medications.

By decision dated September 10, 2015, OWCP reduced appellant’s compensation benefits,

effective September 20, 2015, based on his ability to earn wages in the selected position of quality 

assurance manager. Using the formula in Albert C. Shadrick,

6

it noted that appellant’s salary on 

the date his disability began on July 18, 2005 was $1,230.23 a week and the current adjusted pay 

rate for his job on the date of injury was $1,179.16 a week as of June 30, 215. Appellant was 

found currently capable of earning $956.00 per week, the pay rate of a quality assurance manager.

OWCP determined that he had an 81 percent wage-earning capacity or 19 percent loss of wageearning capacity, which resulted in an adjusted wage-earning capacity of $996.49 per week, or a 

loss of wage-earning capacity of $233.74 per week, reduced by the basic, two thirds, compensation 

rate to equal $155.83, and increased by cost-of-living adjustments of $186.75 per week. This 

yielded a new compensation rate of $747.00 every four weeks. After subtracting insurance and 

retirement premiums, OWCP concluded that the net compensation was equivalent to $211.44

every four weeks.

By letter dated October 1, 2015, appellant, through counsel, requested a telephonic hearing, 

which was held before an OWCP hearing representative on June 6, 2016. Counsel argued that 

appellant did not have the requisite skills to obtain the position of a quality assurance manager and 

thus, he was not qualified for the position. Appellant testified to his experience as a builder, 

welder, and laborer.

In an October 7, 2015 report, Dr. James repeated his prior findings and diagnoses and 

continued to recommend follow-up treatment.

In a December 4, 2015 report, Dr. Melanie H. Ledford, a Board-certified physiatrist, saw 

appellant on follow up. She noted similar findings to Dr. James. Dr. Ledford also saw appellant 

on April 7 and May 25, 2016, where she provided findings and diagnoses.

By decision dated July 27, 2016, OWCP’s hearing representative affirmed the 

September 10, 2015 decision, finding that the selected position of quality assurance manager 

“fairly and reasonably” represented appellant’s wage-earning capacity.

 

6 5 ECAB 376 (1953).
7

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. Generally, wages 

actually earned are the best measure of a wage-earning capacity and in the absence of evidence 

showing they do not fairly and reasonably represent the injured employee’s wage-earning capacity, 

must be accepted as such measure.9 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, the degree of physical impairment, their 

usual employment, their age, their qualifications for other employment, the availability of suitable 

employment, and other factors and circumstances which may affect the employee’s wage-earning 

capacity in his or her disabled condition.10 Wage-earning capacity is a measure of the employee’s 

ability to earn wages in the open labor market under normal employment conditions.11 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.12 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.13

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 or her physical limitation, 

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.14 Finally, application of the principles set forth 

in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning 

capacity.15

 

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

8 5 U.S.C. § 8115. 

9 Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971). 

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

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

12 Id.

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

14 Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999). 

15 Id. See supra note 6; codified at 20 C.F.R. § 10.403 (c)-(e). 
8

ANALYSIS 

OWCP accepted appellant’s claim for right shoulder acromioclavicular strain, closed 

acromioclavicular dislocation, cervical strain, aggravation of cervical radiculopathy, aggravation 

of cervical degenerative disc disease, and adjustment disorder with depressed mood. It

subsequently expanded the acceptance of the claim to include a right shoulder acromioclavicular 

(AC) separation. On January 20, 1999 a Mumford procedure was performed on appellant’s right 

shoulder. Appellant had two previous right shoulder surgeries in June 1997 and November 1997. 

OWCP later expanded the acceptance of appellant’s claim to include depression and aggravation 

of cervical radiculopathy. 

An FCE was completed on December 4, 2014, which indicated that appellant could work 

at a sedentary-to-light level for eight hours per day. On January 30, 2105 Dr. Wolf indicated that 

appellant was qualified for a sedentary type of job without question. He opined that appellant was 

unsuited, however, for work overhead due to a combination of complaints of right shoulder pain 

and inability to extend his cervical spine for any prolonged length of time as might be required if 

he were to be doing work overhead. 

The medical evidence from January 30, 2015 supported that appellant was no longer totally 

disabled and could perform light-duty work.

Appellant’s vocational rehabilitation counselor determined that appellant was able to 

perform the position of a quality assurance manager. He noted that appellant had previous 

experience and determined that state employment services showed the position was available in 

sufficient numbers so as to make it reasonably available within appellant’s commuting area. The 

position was described as light to sedentary and required occasional lifting of up to 10 pounds 

frequently and 20 pounds occasionally, occasional stooping and crouching, and frequent reaching, 

handling, fingering, and talking. It did not require climbing, balancing, kneeling, or crawling. The 

Board notes that the position requires occasional lifting of up to 10 pounds frequently and 20 

pounds occasionally, as well as occasional reaching. The Board finds that these physical activities 

comply with the restrictions imposed by Dr. Wolf, who addressed appellant’s work ability and 

determined that appellant was “certainly qualified for a sedentary type of job without question.”

Furthermore, Dr. Wolf indicated that appellant could perform a job which was not physically 

demanding. He explained that appellant was unsuited for work overhead due to a combination of 

complaints of right shoulder pain and opined that appellant had an “inability to extend his cervical 

spine for any prolonged length of time as might be required if he were to be doing work overhead.” 

However, the offered position does not indicate that there is any prolonged work overhead. The 

Board also notes that Dr. Wolf indicated that appellant was able to perform four hours of reaching 

and reaching above the shoulder. Additionally, appellant could lift 20 to 25 pounds for eight hours 

per day.

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 offered position of quality assurance 

manager. Therefore, OWCP properly reduced appellant’s compensation, effective September 20, 

2015, based upon his capacity to earn wages as a quality assurance manager. 
9

CONCLUSION

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

compensation, effective September 20, 2015, based on his capacity to earn wages in the selected 

position of a quality assurance manager.

ORDER

IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: January 3, 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