United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.M., Appellant

and

U.S. COURTS, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Little Rock, AR, 

Employer

__________________________________________

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Docket No. 22-0205

Issued: August 17, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 15, 2021 appellant filed a timely appeal from a May 19, 2021 merit decision 

of the Office of Workers’Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s May19, 2021 decision was November 15, 2021. Since 

using November 19, 2021, the date the appeal was received by the Clerk of the Appellate Boards would result in the 

loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service 

postmark is November 15, 2021, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). Appellant also 

appealed a purported May 20, 2021 decision of OWCP, but this document is an informational letter rather than a final 

decision of OWCP. The Board’s jurisdiction is limited to final adverse decisions of OWCP issued within 180 days of 

the appeal and, therefore, there is no final adverse decision dated May 20, 2021 within the Board’s jurisdiction. See 

20 C.F.R. §§ 501.2(c) and 501.3.
2

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

ISSUE

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

benefits, effective January 4, 2021, based on her actual earnings as a minister.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts of the case as set forth in the 

prior Board decisions and orders are incorporated herein by reference. The relevant facts are as 

follows.

OWCP accepted that on November 1, 2006 appellant, then a 41-year-old investigator, 

sustained a medial meniscus tear of her left knee when she fell from a ladder retrieving a box while

in the performance of duty. Appellantstopped work on November 6, 2006 and underwent OWCPauthorized anterior cruciate ligament reconstruction and medial/lateral meniscus debridement of 

her left knee on December 12, 2006. She received wage-loss compensation for periods of partial 

and total disability. Appellant was terminated by the employing establishment on May 22, 2007,

because she did not return to available light-duty work despite the fact that an attending physician 

had released her to such work. OWCP accepted her claim for a recurrence of disability, effective 

May 23, 2007, and paid her disability compensation on the periodic rolls.

On June 10, 2009 appellant underwent OWCP-authorized left knee surgery, including 

meniscectomy and anterior cruciate ligament revision surgery. On September 11, 2009 OWCP 

expanded the acceptance of her claim to include sprain of the acromioclavicular joint of the right 

shoulder and several additional left knee conditions -- bone contusion, cruciate ligament sprain, 

retear of the medial meniscus, retear of the lateral meniscus, and anterior cruciate ligament 

disruption.

By decision dated February 25, 2010, OWCP terminated appellant’s wage-loss

compensation, effective March 14, 2010, and by decisions dated July 26, 2010 and February 28,

2011, it denied modification of its termination action.

 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May 19, 2021 decision, appellant submitted additional evidence to OWCP 

and on appeal to the Board. 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.

4 Docket No. 11-1988 (issued June6, 2012); Order Granting Petition for Reconsideration and Modifying Prior 

Decision of the Board, Docket No. 11-1988 (issued July 25, 2013); Docket No. 14-1302 (issued May 5, 2015); Docket 

No. 16-1638 (issued October 6, 2017); Docket No. 18-1120 (issued November 26, 2018).
3

Appellant appealed to the Board and, by decision dated June 6, 2012,5the Board reversed

the February 28, 2011 termination decision. The Board found that the medical evidence OWCP 

relied upon for its termination action was insufficiently rationalized. OWCP returned appellant to 

the periodic rolls.

In February 2013, appellant reported that she had been employed since April 19, 2012 by 

the Department of Veterans Affairs as a clinical pastoral education resident (student chaplain) at a 

rate of pay of $13.17 per hour. In accordance with the Board’s June 6, 2012 decision, OWCP 

made supplemental payments to appellant to effectively reinstate her wage-loss compensation 

retroactive to the date of the March 14, 2010 termination. Based on her wages as a clinical pastoral 

education resident, beginning April 19, 2012 and continuing, it made an informal determination in 

which it calculated her loss of wage-earning capacity (LWEC) under the principles of the Albert C. 

Shadrick case.6

By decision dated January 28, 2014, OWCP terminated appellant’s wage-earning 

compensation, effective February 9, 2014. Appellant appealed to the Board and, by decision dated 

May 5, 2015,7the Board reversed the January 28, 2014 decision and returned her to the periodic 

rolls.

Effective August 6, 2017, through an informal determination, OWCP reduced appellant’s 

compensation based upon her employment and earnings as a chaplain for the Central Arkansas 

Veterans Health Care System.

Effective October 1, 2018, through an informal determination, OWCP reduced appellant’s 

compensation based upon her employment and earnings as a minister with a church.

In a July 29, 2020 work capacity evaluation (Form OWCP-5c), Dr. Kevin J. Collins, a 

Board-certified orthopedic surgeon, indicated that appellant could work eight hours per day with 

restrictions, including lifting/pushing/pulling no more than 10 pounds, and no twisting, bending, 

or stooping. He recommended that she take breaks of varying lengths after performing certain 

physical tasks, including sitting, standing, and engaging in repetitive wrist and elbow motions.

The case record contains pay records and statements from appellant and officials from a 

different church, submitted to OWCP in early-2021, which reflect that on January 4, 2021 

appellant began employment as a minister. Appellant worked 18 to 20 hours per week in the 

minister position at a gross pay rate of $829.69 per week.

By decision dated May 19, 2021, OWCP reduced appellant’s compensation benefits,

effective January 4, 2021, based on her actual earnings as a minister. It found that the position 

fairly and reasonably represented her wage-earning capacity as she had been performing the 

position since January 4, 2021 and had demonstrated the ability to perform the duties of the 

 

5 Docket No. 11-1988 (issued June 6, 2012).

 

6

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

 

7 Docket No. 14-1302 (issued May 5, 2015).
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modified job for 60 days or more. OWCP asserted that the minister position to which appellant 

had returned met the criteria of 20 C.F.R. § 10.510 for a light-duty position.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 from all gainful employment, is considered partially disabled and is entitled to 

compensation computed on loss of wage-earning capacity.10

Section 8115(a) of FECA provides that, 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.11 Generally, 

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

evidence showing that they do not fairly and reasonably represent the injured employee’s wageearning capacity, must be accepted as such measure.12

 Once OWCP determines that the actual 

wages of a given position represent an employee’s wage-earning capacity, OWCP applies the 

principles developed in the Albert C. Shadrick13 decision, now codified at 20 C.F.R. § 10.403, in 

order to calculate the adjustment in the employee’s compensation. Compensation payments are 

based on the wage-earning capacity determination, and OWCP’s finding remains undisturbed until 

properly modified.14

A light-duty position that fairly and reasonably represents an employee’s ability to earn 

wages may form the basis of an LWEC determination if that light-duty position is a classified 

position to which the injured employee has been formally reassigned.15 The position must conform 

 

8 OWCP based its reduction of appellant’s compensation on the principles developed in the Albert C. Shadrick 

decision. See supra note 6.

 

9 M.K., Docket No. 17-0208 (issued April17, 2018);H.N.,Docket No. 09-1628 (issued August 19, 2010);T.F., 58 

ECAB 128 (2006).

 

10 20 C.F.R. §§ 10.402 and 10.403; J.H., Docket No. 18-1319 (issued June 26, 2019); JohnD. Jackson, 55 ECAB 

465 (2004).

 

11 5 U.S.C. § 8115(a); B.W., Docket No. 19-0207 (issued August 23, 2019); N.J., 59 ECAB 171 (2007).

 

12 B.G., Docket No. 17-1763 (issued April9, 2018); Lottie M. Williams, 56 ECAB 302 (2005).

 

13 5 ECAB 376 (1953). The formula developed in theShadrickdecision has been codified at 20 C.F.R. § 10.403(d), 

which 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.

 

14 D.M., Docket No. 16-1527 (issued July 25, 2017); KatherineT. Kreger, 55 ECAB 633 (2004).

15 20 C.F.R. §10.510.
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to the established physical limitations of the injured employee; the employing establishment must 

have a written position description outlining the duties and physical requirements; and the position 

must correlate to the type of appointment held by the injured employee at the time of injury. 16 If 

these circumstances are present, a determination may be made that the position constitutes regular 

federal employment.17 In the absence of a light-duty position as described above, OWCP will 

assume that the employee was engaged in noncompetitive, makeshift, or odd-lot employment.18

ANALYSIS

The Board finds that OWCP has not met its burden of proof to reduce appellant’s 

compensation benefits, effective January 4, 2021, based on her actual earnings as a minister.

On January 4, 2021 appellant began employment as a minister. On May 19, 2021 OWCP 

issued a decision finding that the position fairly and reasonably represented her wage -earning 

capacity as she had been performing the position since January 4, 2021 and had demonstrated the 

ability to perform the duties of the modified job for 60 days or more. It maintainedthat the minister 

position to which appellant had returned met the criteria of 20 C.F.R. § 10.510 for a light-duty 

position.

The Board finds, however, that the current record does not establish that the minister

position complied with OWCP’s regulations regarding light-duty job offers as established in 20 

C.F.R. § 10.510. The evidence of record does not contain a written position description outlining 

the duties and physical requirements of the minister position. Accordingly, the Board is unable to 

determine from the evidence of record whether the physical requirements of the minister position 

were within appellant’s medical restrictions.19 As the record is incomplete in this regard, the Board 

finds that OWCP has not met its burden of proof to reduce appellant’s compensation benefits based 

on her earnings in the position.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to reduce appellant’s 

compensation benefits, effective January 4, 2021, based on her actual earnings as a minister.

 

16 Id.

17 Id.

18 Id.

 

19 See E.F., Docket No. 19-1019 (issued November 6, 2019); W.R., Docket No. 18-1782 (issued May 29, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: August 17, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board