United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Gainesville, FL, Employer

__________________________________________

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Docket No. 18-1319

Issued: June 26, 2019

Appearances: Case Submitted on the Record

Ronald S. Webster, 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 June 21, 2018 appellant, through counsel, filed a timely appeal from a May 18, 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 May 18, 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 met its burden of proof to reduce appellant’s wage-loss 

compensation, effective September 20, 2017, based on her capacity to earn wages in the 

constructed position of nurse consultant.

FACTUAL HISTORY

On October 15, 2007 appellant, then a 61-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on October 10, 2007 she strained her lower back when repositioning a 

patient while in the performance of duty. She stopped work. 

In a medical report dated October 18, 2007, Dr. Narinder S. Aujla, a Board-certified 

orthopedic surgeon, related appellant’s history of the alleged October 10, 2007 injury and also 

noted that appellant had a medical history of hypertension, cardiac arrhythmia, and neuromuscular 

bladder implant. 

OWCP accepted the claim for a lumbar sprain. Appellant returned to work for four hours 

a day. On October 8, 2008 she underwent a right L4-5 hemilaminectomy/foraminotomy. OWCP 

subsequently expanded the acceptance of the claim to include lumbar herniated disc at L4-5, 

displacement of lumbar intervertebral disc without myelopathy and lumbar region intervertebral 

disc disorder with myelopathy. It paid appellant wage-loss compensation on the periodic rolls for 

total disability as of August 2, 2009. 

From 2004 through 2013, appellant periodically worked from home as an online instructor 

for three different private employing establishments. On April 22, 2010 she underwent a L1 

laminectomy with placement of a spinal cord stimulator to the T11-12 level. In 2012, appellant

suffered a nonwork-related cerebral vascular accident (CVA)/stroke.

OWCP referred appellant for a second opinion evaluation to determine her disability 

status.4 In a September 29, 2015 report, Dr. Jonathan Black, a Board-certified orthopedic surgeon 

and OWCP referral physician, opined that she had the residual condition of postlaminectomy 

syndrome related to the employment-related injury. He also opined that appellant could work full 

duty in a sedentary and light-duty capacity with permanent lifting restrictions of no greater than 

10 pounds for three hours of work. Dr. Black completed a work capacity evaluation (Form 

OWCP-5). 

On October 14, 2015 OWCP referred appellant to vocational rehabilitation services based

on Dr. Black’s work restrictions. In a November 17, 2015 initial report, the vocational 

rehabilitation counselor reported on her education, training, and work experience, and found that 

 

4

In a March 27, 2014 report, Dr. Richard C. Smith, an orthopedic surgeon and OWCP referral physician, indicated 

that appellant had postlaminectomy syndrome, a residual of her work-related injury, and that she could not function 

as a nurse. While he opined that she could work in a sedentary capacity with permanent restrictions, he also noted 

that her spinal cord stimulator was not functioning. 
3

she had transferrable skills and that additional training or development was not necessary.5 The 

vocational rehabilitation counselor completed a transferable skill analysis and identified the 

positions of nurse consultant, medical secretary, and customer service clerk representative as being 

within appellant’s medical restrictions and vocational capabilities. 

In monthly reports dated beginning November 6, 2015, Dr. Terry W. Kuhlwein, a Boardcertified family practitioner, opined that appellant was temporarily totally disabled from work. He 

noted that she required multiple medications and periodic therapeutic injections for her chronic 

low back and right hip pain. Dr. Kuhlwein advised that appellant’s symptoms significantly

impacted her activities of daily living, as she was unable to safely operate a motor vehicle and had 

limited ability to walk, sit, or stand for a prolonged period of time. 

Once OWCP determined that the employing establishment could not accommodate 

appellant’s full-time sedentary restrictions, OWCP resumed its return-to-work plan.

6 Following a 

new vocational assessment, the rehabilitation counselor again identified the positions of nurse 

consultant, medical secretary, and customer service clerk representative as being within appellant’s 

physical limitations, and vocational skills. Appellant was unsuccessful in finding employment 

within her restrictions. 

On October 27, 2016 the rehabilitation counselor related that the constructed nurse 

consultant position, Department of Labor, Dictionary of Occupational Titles (DOT) No. 075.127-

014, was sedentary in nature, and met appellant’s physical restrictions.7 The physical requirements 

of the position were noted as occasional lifting limited to 10 pounds; with no climbing, stooping, 

kneeling, or crouching required. The counselor noted that appellant’s nursing knowledge and 

postgraduate education was directly transferable to meet the specific vocational preparation 

requirements of two to four years. Appellant had also received on-the-job training opportunities, 

had effective communication skills, computer knowledge, and keyboarding ability with basic math 

skills. The counselor confirmed that there were sufficient openings for the position in her

commuting area and that the weekly wage for the position was $928.80. 

Dr. Kuhlwein, in his December 28, 2016 report, opined that appellant was temporarily 

totally disabled due to chronic, progressive low back pain, chronic right hip/groin pain, and lumbar 

disc disorder with myelopathy. He indicated that she required ongoing maintenance medications 

 

5 The rehabilitation counselor reported that appellant had a doctorate in nursing, that she was currently licensed,

that she belonged to several professional organizations, and had submitted publications in the nursing field and 

received various awards. Appellant had over 25 years of semiskilled, skilled and professional nursing-related work 

experience. She also had computer training, had passed a course in Microsoft Excel, and had taught online courses. 

6 The employing establishment had offered appellant a full-time sedentary position as a medical support assistant, 

but later disqualified her for the position due to her postinjury cardiac/stroke conditions which were unrelated to her 

October 10, 2007 work injury. 

7 The Department of Labor, Dictionary of Occupational Titles described the physical requirements of the nurse 

consultant position as follows: reviews and suggests changes in nursing organization and administrative procedures;

analyzes nursing techniques and recommends modifications; aids schools in planning nursing curriculums and hospital 

and public health nursing services in developing and carrying out staff education programs; provides assistance in 

developing guides and manuals for specific aspects of nursing services; prepares educational materials and assists in 

planning and developing health and educational programs for industrial and community groups; advises in services 

available through community resources; consults with nursing groups concerning professional and educational 

programs; prepares or furnishes date for articles and lectures; and participates in surveys and research studies. 
4

and other adjuvant pain medications. Dr. Kuhlwein noted that appellant recently required rightsided sacroiliac joint injection for pain relief. He reported that she was prone to falling due to right 

leg weakness. Dr. Kuhlwein also noted that appellant had a neurogenic bladder and must selfcatheterize multiple times a day. 

OWCP determined that a conflict in medical evidence existed between Dr. Kuhlwein and

Dr. Black as to whether appellant could return to work and referred her to Dr. Robert McShane, a 

Board-certified orthopedic surgeon, for an impartial medical evaluation. It provided Dr. McShane 

with a March 4, 2014 statement of accepted facts (SOAF) which outlined her preexisting and 

concurrent conditions, including cardiac arrhythmia and atonic bladder and a series of questions. 

In a June 12, 2017 report, Dr. McShane reviewed the SOAF, reported physical examination 

findings, and opined that appellant’s lumbar sprain had resolved, but that she continued to have 

residuals from status post L4-5 right-sided hemilaminotomy and discectomy and status post spinal 

cord stimulator placement, which included right-sided sciatica. He opined that she could not work 

as a nurse, but was capable of working full time in a sedentary capacity with permanent restrictions 

of no lifting, pushing, or pulling over 20 pounds, no prolonged or repetitive forward bending, and 

frequent change of positions from sitting to standing and intermittent walking. Dr. McShane

opined that, while appellant’s husband did the driving, appellant could drive as long as she did not 

take long acting narcotic pain medications. He further opined that any restrictions she had with 

regard to her CVA, cardiac arrhythmia, or bladder issues were outside the scope of her workers’

compensation injury. Dr. McShane opined that appellant had reached maximum medical 

improvement on April 22, 2011 one-year status post the spinal cord stimulator placement. 

By letter dated July 10, 2017, OWCP proposed to reduce appellant’s wage-loss 

compensation based on her capacity to earn wages in the constructed position of nurse consultant, 

DOT No. 075.127-014, at the rate of $928.80 per week. It accorded the special weight of the 

medical evidence to Dr. McShane, as the impartial medical examiner, and determined that the 

selected position was medically and vocationally suitable for her and represented her wage-earning 

capacity. As appellant’s wage-earning capacity was less than the current pay of the job she held 

when injured, 47 percent, OWCP proposed to reduce her wage-loss compensation benefits to 

$3,173.00 every four weeks. OWCP afforded her 30 days in which to submit contrary evidence. 

In response, appellant submitted additional medical evidence. Medical reports dated 

December 1, 2016 and February 9, May 8, July 19, and August 14, 2017 from the Mayo Clinic 

indicated that she had undergone right-sided sacroiliac injections. OWCP also continued to 

receive diagnostic test reports. 

OWCP also received appellant’s August 2, 2017 letter which requested that acceptance of 

the claim be expanded to include sacrococcygeal disorder.

By decision dated September 20, 2017, OWCP reduced appellant’s wage-loss 

compensation based on her capacity to earn wages as a nurse consultant earning $928.80 per week. 

It also denied her request to expand acceptance of her claim to include sacrococcygeal disorder.

On September 28, 2017 counsel requested a telephonic hearing before an OWCP hearing 

representative. The telephonic hearing was held on March 13, 2018. 

In an August 29, 2017 report, Dr. Kuhlwein reported that appellant was managed with lowdose opioid analgesics for her chronic low back pain. He indicated that she had no evidence of 
5

development of tolerance or significant side effects, but recommended that she not drive because 

of the nature of those medications. Dr. Kuhlwein also noted that appellant had difficulty with 

ambulation and infrequently would utilize a cane, a walker, and sometimes even a wheelchair for

prolonged outings. He advised against a sedentary position for eight hours as she experienced

increased low back pain with prolonged sitting. 

In an April 24, 2018 report, Dr. Kuhlwein diagnosed chronic, progressive low back pain, 

chronic right hip/groin pain, lumbar disc disorder with myelopathy, and bilateral lumbar facet 

disease. He indicated that appellant spent more time in bed, partly due to the back and leg pain 

and her cardiac condition. Dr. Kuhlwein also discussed her bladder and heart issues, relating that 

she had to self-catherize every four to five hours, and that she had recently had her single chamber 

pacemaker replaced with a dual chamber pacemaker. He continued to opine that appellant was 

temporarily totally disabled. 

By decision dated May 18, 2018, OWCP’s hearing representative affirmed OWCP’s 

September 20, 2017 decision.8 

LEGAL PRECEDENT

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

modification of the compensation benefits.9 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).

10

 

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 wage-earning capacity or if 

the employee has no actual earnings, wage-earning capacity is determined with due regards to the 

nature of the injury, degree of physical impairment, usual employment, age, 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.11

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 appellant’s medical

 

8 The hearing representative did not rule on the issue of whether the acceptance of appellant’s claim should be 

expanded to include sacrococcygeal disorder. Therefore, this issue is not before the Board in this appeal.

9 See S.H., Docket No. 17-0990 (issued June 12, 2018); M.K., Docket No. 17-0208 (issued April 17, 2018); 

James M. Frashner, 53 ECAB 794 (2002).

10 20 C.F.R. §§ 10.402 and 10.403; see S.H., id.; John D. Jackson, 55 ECAB 465 (2004).

11 5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; T.B., Docket No. 17-1777 (issued January 16, 2019); Pope D. Cox, 39 

ECAB 143 (1988).
6

condition.12 Additionally, the Board has held that a wage-earning capacity determination must be 

based on a reasonably current medical evaluation.13

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 postinjury or subsequently acquired conditions.14 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 the claimant may 

receive compensation.15

It is well established that when a case is referred to an impartial medical specialist for the 

purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and 

based on a proper factual and medical background, must be given special weight.16

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 DOT or otherwise available in the open market, that fits 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 open 

labor market should be made through contact with the state employment service, local Chamber 

of Commerce, employing establishment contacts, and actual job postings.17 Lastly, OWCP applies 

the principles set forth in Albert C. Shadrick,18 as codified in section 10.403 of OWCP 

regulations,

19 to determine the percentage of the employee’s LWEC.20

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s wageloss compensation, effective September 20, 2017, based on her capacity to earn wages in the 

constructed position of nurse consultant.

In his June 12, 2017 report, Dr. McShane discussed appellant’s history, medical records, 

and examination findings and provided physical restrictions based upon her accepted lumbar 

 

12 See B.G., Docket No. 17-0477 (issued September 20, 2017); William H. Woods, 51 ECAB 619 (2000).

13 C.M., Docket No. 18-1326 (issued January 4, 2019).

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

15 Id.

16 5 U.S.C. § 8123(a); see M.C., Docket No. 18-1374 (issued April 23, 2019); see also F.W., Docket No. 15-0441 

(issued October 4, 2016).

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

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

18 Albert C. Shadrick, 5 ECAB 376 (1953).

19 20 C.F.R. § 10.403. 

20 See T.B., supra note 11. 
7

conditions. He further opined, however, that any restrictions she had with regard to her CVA, 

cardiac arrhythmia, and bladder issues were outside the scope of her employment injury. The 

medical evidence of record establishes that appellant’s cardiac arrhythmia, as well as her bladder 

condition were preexisting, while her CVA occurred following the employment injury. As 

previously noted, however, determining wage-earning capacity based upon a selected position, 

both injury-related and preexisting conditions, but not postinjury or subsequently-acquired 

conditions must be considered.

21

 OWCP should have requested that Dr. McShane provide a 

supplemental opinion as to whether appellant’s preexisting conditions precluded her employment 

as a nurse consultant. As it did not develop the medical evidence both relative to her preexisting 

and employment-related conditions, it did not meet its burden of proof to reduce her compensation 

benefits.22

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s 

compensation effective September 20, 2017 based on her capacity to earn wages in the constructed 

position of nurse consultant.

ORDER

IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: June 26, 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

 

21 Supra note 14.

22 James Henderson Jr., supra note 14.