United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.N., Appellant

and

DEPARTMENT OF THE AIR FORCE, U.S. AIR 

FORCE ACADEMY, Colorado Springs, CO, 

Employer

__________________________________________

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Docket No. 19-1986

Issued: August 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 30, 2019 appellant filed a timely appeal from an April 4, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 The Board notes that appellant also sought an appeal from a January 8, 2018 merit decision which reversed the 

initial denial of his claim and remanded for further development. For final adverse decisions of OWCP issued on or 

after November 19, 2008, the Board’s review authority is limited to appeals which are filed within 180 days from the 

date of issuance of OWCP’s decision. See 5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009). As the 

January 8, 2018 decision was not adverse, and because more than 180 days had passed from the issuance of the 

decision to the filing of this appeal, the Board is without jurisdiction to review that decision. 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the April 4, 2019 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 properly reduced appellant’s wage-loss compensation, 

effective April 30, 2017, based upon his wage-earning capacity in the constructed position of 

office clerk.

FACTUAL HISTORY

On October 15, 2002 appellant, then a 46-year-old waiter, filed an occupational disease 

claim (Form CA-2) alleging that factors of his federal employment, including daily 

bending/stooping while cleaning and resetting tables and pulling hot carts, caused or contributed 

to the development of a back condition. OWCP initially accepted the claim for lumbar sprain. It 

subsequently expanded acceptance of the claim to include the conditions of displacement of 

lumbar intervertebral disc without myelopathy and degeneration lumbar intervertebral disc. 

The employing establishment was initially able to accommodate appellant’s restrictions 

and he returned to work as a waiter in October 2002. Appellant stopped work in May 2007 as the 

employing establishment was unable to continue to accommodate his restrictions. OWCP again 

paid wage-loss compensation on the supplemental rolls and placed him on the periodic 

compensation rolls commencing June 10, 2007. Appellant continued to work part time for an 

independent contractor performing furniture repair, upholstery work, and sign making for an 

average of approximately 25 hours per week, a job he held prior to his 2002 employment injury.

On May 18, 2016 appellant underwent a second opinion evaluation with Dr. Wallace K. 

Larson, a Board-certified orthopedic surgeon. In his report, Dr. Larson noted appellant’s history 

of injury and medical treatment. He reviewed the statement of accepted facts (SOAF) and 

presented examination findings. Dr. Larson diagnosed degenerative disc disease of the lumbar 

spine without radicular symptoms and opined that appellant did not require further medical 

treatment. He opined that appellant was able to work 8 hours per day with restrictions, and since 

he was working 32 hours weekly he could continue that work. In an accompanying work capacity 

evaluation (Form OWCP-5c), Dr. Larson opined that appellant could work 8 hours per workday 

with restrictions of 4 hours per day of twisting, bending/stooping, squatting, kneeling, and 

climbing and 3 hours per day of no more than 20 pounds lifting and 40 pounds pushing and pulling. 

As the employing establishment could no longer accommodate appellant’s restrictions, 

OWCP referred him to vocational rehabilitation services based on Dr. Larson’s May 18, 2016 

opinion. In letters dated December 13, 2016 and January 9, 2017, OWCP advised appellant that 

his part-time private sector employment, which he held prior to the employment injury, was 

dissimilar from his date-of-injury employment. It informed appellant of his requirement to seek 

part-time private sector employment.

On December 27, 2016 appellant signed a vocational rehabilitation plan development 

form. On January 8, 2017 the vocational rehabilitation counselor completed a transferable skills 

analysis which showed that appellant had a reasonable probability to obtain re-employment in the 

entry level clerical field of office clerk and file clerk. The vocational rehabilitation counselor 

indicated that appellant’s skills that were transferable to the entry level clerical/administrative 

position were skills in computer operation and administrative tasks based upon current volunteer 

union steward tasks and his work history prior to 2002.
3

In a January 19, 2017 report and Form OWCP-5c, appellant’s physician, Dr. Mark Fraley, 

an osteopath specializing in family medicine, opined that appellant was able to work six to eight

hours per day with restrictions in his current carpenter job, which appellant held preinjury. He 

provided bending/stooping restrictions, and indicated that appellant required 5- to 10-minute 

breaks “as needed every hour.” Dr. Fraley further indicated that his opinion only applied to 

appellant’s current carpenter position and did not apply to any other job possibility as all jobs were 

different.

Appellant subsequently advised his vocational rehabilitation counselor that he disagreed 

with Dr. Larson’s work restrictions and the he would only follow Dr. Fraley’s work restrictions.

On January 24, 2017 the vocational rehabilitation counselor noted in a rehabilitation action 

report (Form OWCP-44) that appellant confirmed that he would not seek re-employment under 

the currently accepted physical restrictions of Dr. Larson. She indicated that a transferable skills 

analysis, completed on January 8, 2017, showed that appellant had a reasonable probability to 

obtain re-employment in the entry level clerical field of office clerk and file clerk. The vocational 

rehabilitation counselor noted that earning capacity for entry level clerical jobs in those job titles 

ranged from $9.37 to $10.14 per hour.

OWCP, in a letter dated January 30, 2017, notified appellant of the penalties under 5 U.S.C. 

§ 8113(b) and 20 C.F.R. § 10.519 for failure to cooperate with vocational rehabilitation without 

good cause. It noted that the vocational rehabilitation counselor had advised that he would only 

follow work restrictions assigned by his own physician and that he declined to participate in his 

vocational rehabilitation return to work program by failing to complete his December 27, 2016 

rehabilitation plan development assignments. It also noted that appellant had not provided a return 

to work rehabilitation plan, which was due by March 6, 2017. OWCP advised that appellant was 

obligated to use Dr. Larson’s May 18, 2016 work restrictions in his return to work activity. It 

further noted that the vocational rehabilitation counselor indicated that he had the ability to obtain 

entry level employment working 32 hours per week as an office clerk earning wages of $299.84 

per 32-hour week in his labor market. OWCP afforded appellant 30 days to contact OWCP and 

his rehabilitation counselor to make a good faith effort to participate in the rehabilitation effort 

designed to return him to gainful employment. It informed him that, if he believed he had a good 

reason for not participating in the rehabilitation effort, he should respond within 30 days, with 

reasons for noncompliance, and submit evidence in support of his position. OWCP noted that, if 

appellant did not comply with the instructions contained in the letter within 30 days, the 

rehabilitation effort would be terminated and action would be taken to reduce his compensation 

under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.

In a vocational rehabilitation progress report dated February 1, 2017, the vocational 

rehabilitation counselor noted that the wage data for the selected position of office clerk was a 

preliminary earnings capacity projection based upon the most recent available statistical data of 

2015. She added that additional research would be needed to verify the suitability per duties, the 

required physical requirements of the position, and significant availability in the local private 

sector job market.

On February 21, 2017 appellant, through his representative, contested his ability to

participate in vocational rehabilitation.
4

On May 2, 2017 the employing establishment indicated that appellant’s pay plan was 

wage-grade (WG) 03, Step 00 with base pay rate $16.26 per hour. It advised that he was in retained

pay status and was only entitled to 50 percent of annual pay adjustments under the applicable pay 

retention rules of the employing establishment. An attached spreadsheet indicated that appellant’s 

pay rate was $16.26 and his current pay rate would be $17.95. 

By decision dated May 4, 2017, OWCP reduced appellant’s wage-loss compensation, 

effective April 30, 2017, based on his ability to earn $299.84 in a 32-hour week in wages in the 

constructed position of office clerk, Dictionary of Occupational Titles (DOT) No. 209.562-010.

4

 

It found that the physical and vocational requirements of the position conformed to his medical 

restrictions and prior work experience. OWCP noted that appellant had refused to develop a 

rehabilitation plan for private sector return to work based on the accepted May 18, 2016 work 

restrictions of Dr. Larson. It further noted that he had been notified on several occasions that the 

carpentry position he currently holds was not a fair and reasonable representation of his earning 

capacity. Commencing April 30, 2017, OWCP applied the Shadrick5formula and thereafter paid 

appellant wage-loss compensation benefits at the new rate of $948.88.6

On May 5, 2017 the rehabilitation vocational counselor closed appellant’s case due to the 

vocational rehabilitation sanction in place.

On May 24, 2017 appellant requested an oral hearing before an OWCP hearing 

representative, which was held telephonically on October 26, 2017. He asserted that the wageearning capacity was incorrectly calculated as the correct pay rate was WG-8 instead of WG-3. A

Notice of Personnel Action (Standard Form SF-50) with an effective date of March 31, 2002 

indicated that appellant’s job changed from wood crafter to waiter and that he was entitled to retain 

a WG-8 pay rate until March 30, 2004.

By decision dated January 8, 2018, an OWCP hearing representative vacated OWCP’s 

May 4, 2007 decision based on the pay rates used to calculate the loss of wage-earning capacity 

(LWEC) payments. The hearing representative found that OWCP properly determined that since 

appellant had not fully participated in vocational rehabilitation efforts, he would have been capable 

of earning the wages of an office clerk. However, based on the SF-50 provided, additional 

development was needed as to appellant’s correct pay rate.

In a November 15, 2017 letter, Dr. Fraley indicated that appellant could work light duty 

and that stretch breaks must be taken to reduce symptoms caused by work activity. He indicated 

that his previous restrictions and narratives stand, but clarified that those restrictions would apply 

to any position, not just to appellant’s current carpenter position. Dr. Fraley opined that “any 

position would undoubtedly require numerous accommodations as appellant’s current employer 

allows and provides however.” He continued to disagree with the work restrictions of Dr. Larson. 

A copy of his previously submitted Form OWCP-5c was submitted.

 

4 The physical requirements of the office clerk position involved light exertion level, with a negligible amount of 

force constantly, up to 10 pounds of force frequently, and no more than 20 pounds of force occasionally.

5 5 ECAB 376 (1953).

6 This was based on appellant’s date of recurrence pay rate.
5

In a March 28, 2018 letter, the employing establishment provided pay rate information 

which demonstrated that appellant’s recurrence pay rate was correct, but that the current wage of 

WG 03, Step 00, had he not been injured, would be $18.91 per hour. It confirmed that he was 

under pay retention at the time of his injury and was only entitled to 50 percent of annual pay 

adjustments under the employing establishment’s pay retention rules. A spread sheet demonstrated 

the required pay adjustments. 

On August 1, 2018 OWCP issued a Shadrick documentation memo for pay rate validation 

for LWEC decision. It found that appellant’s previously established recurrence pay rate from 

May 11, 2007 had an updated hourly rate of $18.91 or $758.95 per week for the date-of-injury 

job.

7

By decision dated August 3, 2018, OWCP reduced appellant’s wage-loss compensation, 

effective April 30, 2017, based on his ability to earn $299.84 in a 32-hour week in wages in the 

constructed positon of office clerk. It found that he had failed, without good cause, to undergo 

vocational rehabilitation as directed. Based on the updated pay rate information from the 

employing establishment from appellant’s date-of-recurrence pay rate, OWCP found that 

appellant’s net compensation at the updated pay rate was $1,021.92.

On August 21, 2018 appellant requested an oral hearing before an OWCP hearing 

representative. The hearing was held telephonically on January 18, 2018.

By decision dated April 4, 2019, an OWCP hearing representative affirmed OWCP’s 

August 3, 2018 decision.

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.8 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 LWEC.

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 counselor or 

specialist for selection of a position, listed in the Department of Labor, DOT 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. 

 

7 OWCP determined, on August 2, 2018, that appellant was underpaid $708.81 during the period April 30 through 

July 21, 2017. On August 3, 2018 OWCP issued a check to him in the amount of $708.81 for the pay rate adjustment. 

8 S.C., Docket No. 19-1680 (issued May 27, 2020); Betty F. Wade, 37 ECAB 556, 565 (1986).

9 20 C.F.R. §§ 10.402, 10.403. 
6

Shadrick10 and codified by regulations at 20 C.F.R. § 10.403 should be applied.11 Subsection (d) 

of the regulations provides 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.12

The determination of whether an employee is physically capable of performing a modified 

assignment is a medical question that must be resolved by medical evidence.13 OWCP procedures 

provide that acceptable reasons for refusing an offered position include withdrawal of the offer or 

medical evidence of inability to do the work or travel to the job.14 

Section 8123(a) of FECA provides in pertinent part: “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.”

15

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and 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 upon a proper factual background, must be 

given special weight.16 

OWCP’s procedures provide that if the attending physician opines that the claimant cannot 

perform the duties of the offered position and a second opinion specialist opines that the claimant 

can perform those duties, and both opinions are of equal weight, then a conflict in the medical 

evidence exists and a referral to an impartial medical specialist for a referee examination is 

necessary.17 If the claims examiner seeks an impartial medical examination and ultimately finds 

that the offered position is suitable, a new 30-day notice is required.18

ANALYSIS

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation,

effective April 30, 2017.

OWCP initially referred appellant to Dr. Larson for a second opinion evaluation to 

determine appellant’s work restrictions. In a May 18, 2016 report, Dr. Larson, noted his review

 

10 Supra note 5. 

11 Supra note 9 at § 10.403.

12 See S.W., Docket No. 15-0598 (issued June 22, 2015); Id. at § 10.403(d).

13 M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

14 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a 

(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).

15 5 U.S.C. § 8123(a).

16 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).

17 Supra note 14, Part 2 -- Claims, Job Offers and Return to Work, at Chapter 2.814.5.a.4(d) (June 2013).

18 Id. 
7

of a SOAF and the medical record. In a May 18, 2016 Form OWCP-5c, Dr. Larson opined that 

appellant could work 8 hours per work day with restrictions of 4 hours per day twisting, 

bending/stooping, squatting, kneeling, and climbing; no more than 40 pounds 3 hours per day 

pushing and pulling; and no more than 20 pounds 3 hours per day of lifting. 

In a January 19, 2017 report and Form OWCP-5c, appellant’s physician Dr. Fraley opined 

that appellant was able to work 6 to 8 hours per day with restrictions in his existing carpenter job, 

which appellant held preinjury. Dr. Fraley also provided bending/stooping restrictions and 

indicated that appellant required 5- to 10-minute breaks “as needed every hour.” In a 

November 15, 2017 letter, Dr. Fraley clarified that appellant could work light duty, but that stretch 

breaks were necessary to reduce symptoms caused by work activity. He reiterated his prior

restrictions and narratives, but clarified that those restrictions would apply to any position, not just 

to appellant’s carpenter position. Dr. Fraley concluded that “any position would undoubtedly 

require numerous accommodations as appellant’s current employer allows and provides however.” 

He noted his specific disagreement with the work restrictions assigned by Dr. Larson.

The Board finds that an unresolved conflict remains as to the work restrictions that impact 

appellant’s ability to perform the constructed position of an office clerk, as Dr. Fraley and

Dr. Larson disagreed as to the level of possible capacity to work. Dr. Fraley considered the 

restrictions assigned by Dr. Larson, for the government, and directly refuted his restrictions upon 

which OWCP determined that appellant can return to work in an office clerk position. For a 

conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and 

rationale.19 The Board finds that the medical opinions of Drs. Fraley and Larson are of equal 

weight and are in conflict and thus preclude a determination as to whether OWCP properly found 

appellant capable of work in the constructed position of office clerk. As there exists an unresolved 

conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a), the case should have been referred to 

physician in the appropriate field of medicine to resolve the conflict.20 Thus, the Board finds that

OWCP improperly reduced appellant’s wage-loss compensation benefits based upon the 

restrictions assigned by Dr. Larson.

 

19 See J.B., Docket No. 18-1021 (issued December 4, 2018); M.R., Docket No. 17-0634 (issued July 24, 2018); 

Darlene R. Kennedy, 57 ECAB 414 (2006).

20 Supra note 18; see also B.C., Docket No. 18-0407 (issued September 17, 2018).
8

CONCLUSION

OWCP improperly reduced appellant’s wage-loss compensation, effective April 30, 2017.

ORDER

IT IS HEREBY ORDERED THAT the April 4, 2019 decision of the Office of Workers’

Compensation Programs is reversed. 

Issued: August 27, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board