United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.C., Appellant

and

U.S. POSTAL SERVICE, PALATINE 

PROCESSING & DISTRIBUTION CENTER, 

Palatine, IL, Employer

__________________________________________

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Docket No. 19-1680

Issued: May 27, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 1, 2019 appellant filed a timely appeal from a June 17, 2019 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following OWCP’s June 17, 2019 decision appellant submitted 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 compensation 

benefits, effective June 18, 2019, based on her capacity to earn wages in the constructed position 

of order clerk.

FACTUAL HISTORY

On October 12, 1999 appellant, then a 39-year-old manual distribution clerk, filed an

occupational disease claim (Form CA-2) alleging that factors of her federal employment, including

pushing, throwing, and dispatching bundles of catalogs/magazines, cause a right shoulder injury. 

She indicated that she initially became aware of the condition on September 1, 1999 and realized 

its relationship to her federal employment on September 24, 1999. OWCP accepted the claim for 

right rotator cuff tendinitis and began paying compensation benefits for intermittent periods of 

employment-related disability.

On October 19, 2008 appellant accepted a rehabilitation position as a modified mail 

processing clerk. On March 23, 2010 the employing establishment advised that the position was 

withdrawn due to the National Reassessment Process (NRP). The effective date of the withdrawal 

was March 24, 2010. OWCP placed appellant on the supplemental rolls, effective March 24, 2010, 

and the periodic rolls, effective January 16, 2011. 

In an April 3, 2017 report, Dr. Pamela Kaiser, a Board-certified medical oncologist,

indicated that she treated appellant for breast cancer, that appellant developed chronic peripheral 

neuropathy and lymphedema, due to her cancer treatment, and that appellant was unable to drive 

long distances (no more than five miles) due to the numbness and tingling.

In a December 29, 2017 report, Dr. James Bresch, an orthopedic surgeon, noted that 

following surgery on appellant’s right shoulder, her condition plateaued. He recommended a pain 

clinic for future treatment. Dr. Bresch opined that appellant was partially disabled as a result of 

the employment injury. He provided permanent work restrictions, including no lifting greater than 

10 pounds, no overhead work, no over the shoulder height reaching, no repetitive overhead 

reaching, and limited pushing/pulling of the right shoulder. Dr. Bresch also noted that appellant 

could be gainfully employed within her permanent work restrictions, and that she may receive 

vocational rehabilitation, if required. 

Dr. Ok Hong, a psychiatrist, indicated in a March 1, 2018 report that she was treating 

appellant for major depression disorder and post-traumatic stress disorder since April 7, 2010. She 

indicated that appellant was unable to work full time due to these conditions. 

On March 26, 2018 appellant was referred for vocational rehabilitation services, based on

Dr. Bresch’s December 29, 2017 restrictions. The vocational rehabilitation counselor, completed 

vocational testing on June 11, 2018, and a vocational rehabilitation plan was formulated targeting 

the positions of order clerk Department of Labor, Dictionary of Occupational Titles (DOT) No.

249.362-026 or cashier DOT No. 211.362-010.

On June 11, 2018 appellant’s vocational rehabilitation counselor reported that appellant

was capable of working as an order clerk or cashier and that labor market surveys showed that 
3

these positions were reasonably available in her commuting area. The receptionist position, under 

the Department of Labor, Dictionary of Occupational Titles described the order clerk position as 

follows: Processes orders for material or merchandise received by mail, telephone, or personally 

from customer or company employee, manually or using computer or calculating machine. Edits 

orders received for price and nomenclature. Informs customer of unit prices, shipping date, 

anticipated delays, and any additional information needed by customer, using mail or telephone. 

Writes or types order form, or enters data into computer, to determine total cost for customer. 

Records or files copy of orders received according to expected delivery date. May ascertain credit 

rating of customer. The Department of Labor, Dictionary of Occupational Titles described the 

physical requirements of the order clerk position as sedentary to include sedentary lifting, carrying, 

pushing, pulling 10 pounds, occasionally, mostly sitting, may involve standing or walking for brief 

periods of time. 

OWCP noted in a June 21, 2018 memorandum that placement with a new employer was 

not being pursued due to the limitations attributable to post-injury or subsequently-acquired 

conditions.3

In a December 7, 2018 report, Dr. Mehul Sekhadia, an osteopathic physician Boardcertified in pain medicine, noted that he was not currently providing appellant medical treatment, 

and that there were no changes in her work status or the recommended work restrictions from

Dr. Bresch. 

On May 14, 2019 OWCP proposed to reduce appellant’s compensation based on her 

capacity to earn wages in the constructed position of an order clerk within the restrictions identified 

by Dr. Bresch. It noted that she had been out of the work force since March 24, 2010. OWCP 

explained that given the nature of appellant’s injury and physical impairment, the order clerk

position was determined to be within the provided permanent physical restrictions since it was 

sedentary. It further noted that the rehabilitation specialist documented that such positions were

available in her commuting area and that the entry pay level for the position was $692.00 per week. 

OWCP calculated that appellant’s compensation rate should be adjusted to $1,169.00 every four 

weeks using the Albert C. Shadrick formula.4 It provided her 30 days to submit additional evidence 

regarding her capacity to earn wages in the position described. Appellant did not respond.

By decision dated June 17, 2019, OWCP finalized the proposed reduction of compensation,

finding that appellant was capable of performing the duties of an order clerk.

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proof to establish that the disability has 

ceased or lessened before it may terminate or modify compensation benefits.5

 

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

Constructed Position, Chapter 2.816.4c (June 2013).

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

5 Z.W., Docket No. 18-1000 (issued June 24, 2019).
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 his or her 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.7 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 

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.8 

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

market under normal employment conditions. 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. 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.9

OWCP must initially determine an employee’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 employee’s medical 

condition.10 Additionally, the Board has held that a wage-earning capacity determination must be 

based on a reasonably current medical evaluation.11

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.12 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.13

 

6 C.H., Docket No. 19-0136 (issued May 23, 2019).

7 5 U.S.C. § 8115(a).

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

9

Id.

10 J.H., Docket No. 18-1319 (issued June 26, 2019).

11 Id.

12 G.E., Docket No. 18-0663 (issued December 21, 2018).

13 Id.
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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.14 Lastly, OWCP applies 

the principles set forth in Albert C. Shadrick,

15 as codified in section 10.403 of OWCP 

regulations,16 to determine the percentage of the employee’s LWEC.17

ANALYSIS

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

benefits, effective June 18, 2019, based on her capacity to earn wages in the constructed position 

of order clerk.

OWCP determined that appellant had the physical capacity to perform the duties of an 

order clerk. The position is classified as sedentary employment requiring sedentary lifting, 

carrying, pushing, pulling 10 pounds, occasionally, mostly sitting, may involve standing or 

walking for brief periods of time. The vocational rehabilitation counselor noted that the position 

of order clerk allowed for a variety of duties, none of which exceeded Dr. Bresch’s restrictions.

Dr. Bresch, appellant’s treating physician, noted appellant’s permanent work restrictions of no 

lifting greater than 10 pounds, no overhead work, no over the shoulder height reaching, no 

repetitive overhead reaching, and limited pushing/pulling of the right shoulder. The Board finds 

that the duties of the sedentary order clerk position fall within appellant’s work restrictions. The 

Board finds that the weight of the medical evidence rests with the opinion of Dr. Bresch and 

therefore OWCP has met its burden of proof to establish that the constructed position was within 

appellant’s medical restrictions.

Dr. Kaiser and Dr. Hong advised that appellant could not work due to a subsequentlyacquired condition. As explained, an incapacity to perform the duties of the selected position 

resulting from subsequently-acquired conditions is immaterial to an LWEC determination.

18

 

Neither physician opined that appellant could not work due to residuals from the accepted 

conditions, or a preexisting condition. The Board, therefore, finds that the weight of the medical 

 

14 C.M., supra note 8; Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services,

Chapter 2.813.19d (November 2011).

15 Supra note 4. 

16 20 C.F.R. § 10.403.

17 C.M., supra note 8.

18 G.E., supra note 12.
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evidence establishes that appellant had the physical capacity to perform the duties of the selected 

position.19

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

not only physical limitations, but also consider work experience, age, mental capacity, and 

educational background.20 In her June 11, 2018 report, the rehabilitation counselor described 

appellant’s transferable skills and completed labor market surveys for the positions of order clerk.

She noted that the order clerk position was sedentary in nature and available for full-time and/or 

part-time positions in appellant’s commuting area. As the rehabilitation counselor is an expert in 

the field of vocational rehabilitation, OWCP may rely on his or her opinion in determining whether 

a job is vocationally suitable and reasonably available.21

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 position of order clerk.

22

 OWCP properly 

applied the Shadrick formula, as codified in section 10.403 of its regulations,23 in determining her 

LWEC.

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 compensation 

benefits, effective June 18, 2019, based on her capacity to earn wages in the constructed position 

of order clerk.

 

19 C.H., supra note 6.

20 C.M., supra note 8.

21 C.H., supra note 6.

22 T.B., Docket No. 17-1777 (issued January 16, 2019).

23 5 ECAB 376 (1953); supra note 3 at Chapter 2.816.6(b) (June 2013).
7

ORDER

IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 27, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board