United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.D., Appellant

and

DEPARTMENT OF THE ARMY, UNITED 

STATES MILITARY ACADEMY,

West Point, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0752

Issued: August 20, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 22, 2019 appellant filed a timely appeal from a January 31, 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.

 

1 The Board notes that following the January 31, 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 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly reduced appellant’s wage-loss compensation 

effective August 30, 2018 based on his capacity to earn wages as a service order clerk.

FACTUAL HISTORY

On January 22, 2004 appellant, then a 41-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on January 13, 2004 he experienced back pain and 

numbness of the left leg and right foot when he slipped and fell getting out of a truck while in the 

performance of duty. He stopped work on January 14, 2004 and did not return. OWCP accepted 

the claim for lumbar sprain. It subsequently expanded acceptance of the claim to include 

postlaminectomy syndrome and displacement of a lumbar intervertebral disc without myelopathy 

at L5-S1. OWCP paid appellant wage-loss compensation for total disability on the supplemental 

rolls effective March 7, 2004, and on the periodic rolls effective June 13, 2004.3

On July 13, 2015 OWCP referred appellant to Dr. Richard C. Smith, a Board-certified 

orthopedic surgeon, for a second opinion examination.

In a report dated July 30, 2015, Dr. Smith diagnosed low back pain, displacement of a 

lumbar intervertebral disc without myelopathy, and lumbar postlaminectomy syndrome. In a 

July 31, 2015 work capacity evaluation (OWCP-5c), he found that appellant could perform 

sedentary and light work for eight hours per day with restrictions.

In a March 30, 2016 work capacity evaluation (OWCP-5c), Dr. Michael Baskin, a Boardcertified physiatrist, found that appellant could work up to two hours per day performing sedentary 

work.

OWCP determined that a conflict existed between Dr. Smith and Dr. Baskin regarding 

appellant’s work restrictions and referred him to Dr. Markus Kornberg, a Board-certified 

orthopedic surgeon, for an impartial medical examination.

In a report dated October 5, 2016, Dr. Kornberg diagnosed failed back syndrome, chronic 

back pain, and left radicular symptoms. He advised that appellant had sustained a disc herniation 

at L5-S1 due to his January 13, 2004 employment injury. Dr. Kornberg opined that appellant could 

work eight hours per day with restrictions. In a work capacity evaluation (OWCP-5c) of even 

date, he found that appellant could perform medium work with restrictions, including sitting for 

four hours per day, walking for three hours per day, standing for two hours per day, and lifting up 

to 20 pounds for three hours per day. 

On May 30, 2017 OWCP referred appellant to a vocational rehabilitation counselor for 

vocational rehabilitation.

 

3 On April 1, 2004 appellant underwent a discectomy and removal of a large extruded disc fragment compression 

the left L5-S1 nerve root. On July 15, 2004 he underwent a discectomy and removal of a huge focal disc herniation 

compression the right L5-S1 nerve root.
3

In a vocational rehabilitation report dated July 13, 2017, the vocational rehabilitation 

counselor reviewed appellant’s work history as a maintenance mechanic and as a counter attendant 

and cashier. She related that testing showed that appellant had average aptitude for clerical tasks. 

The vocational rehabilitation counselor recommended that he complete a short online computer 

training course with a goal of job placement as a service dispatcher, service order clerk, or 

information clerk.

On August 28, 2017 the vocational rehabilitation counselor recommended a change in 

status to a “short online prevocational computer/keyboarding enhancement” followed by 

placement services. An OWCP rehabilitation specialist recommended approval of the plan on 

September 21, 2017.

On October 9, 2017 the vocational rehabilitation counselor completed a job classification 

(Form CA-66) for the position of service order clerk. The duties included distributing work orders, 

scheduling service calls, and recording information. The position was sedentary and required 

occasional lifting up to 10 pounds. The vocational rehabilitation counselor advised that appellant 

met the specific vocational preparation of three to six months for the position through his work 

experience in customer service, basic computer skills, basic math skills, high school education, 

and good communication skills. She opined that state employment data confirmed that the position 

was reasonably available within his commuting area at a weekly wage of $349.74 per week.

On November 29, 2017 the vocational rehabilitation counsel advised that appellant had 

completed 88 percent of his online computer training in “touch typing” but had failed to update 

her on his progress.

On December 15, 2017 OWCP’s rehabilitation specialist changed appellant’s case status 

to placement with a new employer effective December 7, 2017.

By vocational rehabilitation closure report dated February 27, 2018, the vocational 

rehabilitation counselor advised that appellant had not communicated with her and did not appear 

to be searching for employment. As such, she recommended case closure. 

In a March 6, 2018 closure memorandum, an OWCP vocational rehabilitation specialist 

noted that appellant completed 88 percent of his online training in basic computer skills and typing. 

She found that the targeted position of service order clerk remained available and was vocationally 

appropriate and was reasonably available within his commuting area at entry level wages ranging 

from $349.60 to $640.00 per week. The vocational rehabilitation specialist noted, however, that 

the medical evidence from Dr. Kornberg was stale.

In a report dated March 6, 2018, Dr. Robert R. Reppy, an osteopath, disagreed with

Dr. Kornberg’s work restrictions, noting that he had failed to perform a physical capacity 

evaluation. He asserted that appellant was unable to work as a mechanic.

On March 12, 2018 OWCP again referred appellant to Dr. Smith for a second opinion 

examination.

In a report dated March 29, 2018, Dr. Smith reviewed appellant’s history of injury and the 

medical evidence of record, including the results of diagnostic testing. He diagnosed low back 
4

pain, displacement of the L5-S1 lumbar intervertebral disc without myelopathy, and lumbar 

postlaminectomy syndrome. Dr. Smith indicated that appellant had “significant pain behavior, 

which may have some psychological component.” He found that he had continued restrictions 

from his employment injury but could perform sedentary employment with accommodation. In a 

work capacity evaluation (OWCP-5c) of even date, Dr. Smith advised that appellant could perform 

sedentary employment.

In a progress report dated May 2, 2018, Dr. Reppy diagnosed failed back syndrome, lumbar 

sprain, and displacement of a lumbar intervertebral disc with myelopathy. He noted that OWCP 

continued to identify lumbar sprain as an accepted condition even though 14 years had passed 

since the injury. Dr. Reppy advised that appellant could not lift more than 10 pounds, perform 

repetitive activities, stand more than 30 minutes, walk more than 45 minutes, and was unable to 

climb or stoop due to residuals of his January 13, 2004 employment injury. 

In a state workers’ compensation form dated May 11, 2018, Dr. Lourdes Vareis-Batista, a 

Board-certified physiatrist, made a notation on the form that appellant was unable to perform

functional activities.4 In a report of even date, she diagnosed low back pain and lumbar 

postlaminectomy syndrome.

On June 1, 2018 OWCP advised appellant of its proposed reduction of his wage-loss 

compensation as the evidence established that he could earn wages in the selected position of 

service order clerk. It afforded him 30 days to submit evidence or argument regarding the proposed 

reduction of his compensation.

In reports dated June 6 and 18, 2018, Dr. Reppy diagnosed failed back syndrome, lumbar 

sprain, and displacement of a lumbar intervertebral disc with myelopathy.5 He provided work 

restrictions, including no lifting over 10 pounds, standing no more than 30 minutes, or walking 

over 45 minutes. 

On June 20, 2018 Dr. Reppy advised that the diagnosis of sprain was in error as it did not 

apply to a condition lasting over six months. He recommended that OWCP expand acceptance of 

the claim to include lumbar radiculopathy and a left herniated nucleus pulposus at L5-S1.

Appellant, in an undated statement received by OWCP on June 29, 2018, asserted that

Dr. Reppy had found that he was unable to work.

By decision dated August 29, 2018, OWCP reduced appellant’s wage-loss compensation 

effective August 30, 2018 as he had the capacity to earn wages of $349.60 per week as a service 

order clerk. It found that the opinion of Dr. Smith represented the weight of the evidence and 

established that he could perform the selected position. OWCP applied the formula set forth in 

 

4 Dr. Vareis-Batista continued to submit similar reports dated June 2018 through March 2019.

5 Dr. Reppy submitted similar progress reports on July 16 and August 20, 2018.
5

Albert C. Shadrick6as codified in section 10.403 of OWCP’s regulations, to determine appellant’s 

loss of wage-earning capacity (LWEC).

In a progress report dated September 5, 2018, Dr. Reppy diagnosed failed back syndrome, 

lumbar sprain, and displacement of a lumbar intervertebral disc with myelopathy due to appellant’s 

accepted employment injury. In a September 26, 2018 report, he found that appellant should not 

stand over 30 minutes, walk over 45 minutes, climb, or stoop.7

On September 10, 2018 appellant requested a review of the written record before an OWCP 

hearing representative.

In a January 21, 2019 progress report, Dr. Reppy advised that appellant was unable to lift 

over 10 pounds. He asserted that residuals of his lumbar intervertebral disc disorder with 

myelopathy “prevent[ed] him from returning to his job.” 

On January 22, 2019 Dr. Reppy related that appellant could perform modified duties lifting 

under 25 pounds, performing no carrying, and walking not more than five minutes. He attributed 

his disability to his accepted employment injury.

By decision dated January 31, 2019, OWCP’s hearing representative affirmed the 

August 29, 2018 LWEC determination.

LEGAL PRECEDENT

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

ceased or lessened in order to justify termination or modification of compensation benefits.8 Its 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.9

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.10 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.11 

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

 

6 5 ECAB 376 (1953).

7 The record contains similar progress reports from Dr. Reppy dated December 5, 2018 and January 7, 2019.

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

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

10 5 U.S.C. § 8115(a).

11 Id.; see also Z.W., Docket No. 18-1000 (issued June 24, 2019).
6

market under normal employment conditions.12 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.13 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 

commuting area.14

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 Department of Labor, Dictionary of Occupational Titles or 

otherwise available in the open market, that fits the employee’s capabilities with regard to his 

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, employer contacts, and 

actual job postings.15 Lastly, OWCP applies the principles set forth in Albert C. Shadrick16 as 

codified in section 10.403 of OWCP’s regulations,17 to determine the percentage of the employee’s 

LWEC.18

ANALYSIS

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

effective August 30, 2018 based on his capacity to earn wages as a service order clerk.

OWCP properly determined that a conflict arose between Dr. Smith, an OWCP referral 

physician, and Dr. Baskin, appellant’s physician, regarding his physical work restrictions. It 

referred him to Dr. Kornberg for an impartial medical examination. In a report dated October 5, 

2016, Dr. Kornberg diagnosed failed back syndrome, chronic back pain, left radicular symptoms, 

and a herniated disc at L5-S1 due to appellant’s January 13, 2004 employment injury. He 

determined that he could work with restrictions, including sitting four hours per day, walking three 

hours per day, standing two hours per day, and lifting up to 20 pounds for three hours per day. 

The Board finds that OWCP properly referred appellant for vocational rehabilitation based on his 

 

12 See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 --

Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).

13 See M.K., Docket No. 17-0208 (issued April 17, 2018).

14 C.M., Docket No. 18-0688 (issued November 15, 2018).

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

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

16 5 ECAB 376 (1953).

17 20 C.F.R. § 10.403.

18 See J.H., Docket No. 18-1319 (issued June 26, 2019).
7

report, which established that he was no longer totally disabled due to residuals of his employment 

injury.19

OWCP further properly found that appellant had the physical capacity to perform the duties 

of a service order clerk. Following vocational rehabilitation, it referred him to Dr. Smith for an 

updated report regarding his work restrictions. In a report dated March 29, 2018, he found that 

appellant could perform sedentary employment. The position of service order clerk is classified 

as sedentary employment requiring occasional lifting up to 10 pounds. Additionally, Dr. Reppy, 

appellant’s attending physician, opined in 2018 progress reports that he could perform modified 

duty with restrictions of lifting no more than 10 pounds, standing no more than 30 minutes, walking 

no more than 45 minutes, and performing no repetitive activities, climbing, or stooping. The 

medical evidence, consequently, establishes that he has the requisite physical ability to earn wages 

as a service order clerk.20

In state workers’ compensation form reports dated 2018 and 2019, Dr. Lourdes VareisBatista, indicated by notation that appellant could not preform functional activities and diagnosed 

low back pain and lumbar postlaminectomy syndrome. She did not, however, directly address 

whether he could work as a service order clerk or provide any rationale for her findings, and thus 

her opinion is of little probative value.21

On January 21, 2019 Dr. Reppy found that appellant could not lift over 10 pounds and that 

he was unable to perform his employment due to residuals of his lumbar intervertebral disc 

disorder. He did not, however, address the issue of whether he could work in the selected position 

of service order clerk, and thus his report is of no probative value.22

In a progress report dated January 22, 2019, Dr. Reppy found that appellant could perform 

modified duties lifting under 25 pounds and walking under five minutes as a result of his accepted 

employment injury. He did not provide any rationale for his change in work restrictions; 

consequently, his report is of diminished probative value.23

The Board, therefore, finds that the weight of the evidence establishes that appellant had 

the physical capacity to perform the duties of the selected position of service order clerk.24

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

not only physical limitations but also take into account work experience, age, mental capacity and 

 

19 C.M., supra note 9.

20 See C.H., supra note 8.

21 See C.S., Docket No. 16-1448 (issued October 4, 2017).

22 See C.H., supra note 8; L.B., Docket No.18-0533 (issued August 27, 2018).

23 See J.S., Docket No. 16-1285 (issued January 5, 2017).

24 See T.J., Docket No. 16-1473 (issued January 26, 2017).
8

educational background.25 The rehabilitation counselor determined that appellant had the skills 

necessary to perform the position of service order based on his prior work experience, education, 

basic computer and math skills, communication skills, and his completion of 88 percent of an

online computer training course. She further found that the position was reasonably available 

within his commuting area at a weekly wage of $349.74 per week. As the rehabilitation counselor 

is an expert in the field of vocational rehabilitation, OWCP may rely on his or her opinion in 

determining whether the job is vocationally suitable and reasonably available.26 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 he had the 

capacity to perform the position of service order clerk.27 OWCP further properly determined his 

LWEC in accordance with the formula developed in Shadrick and codified at 20 C.F.R. § 10.403.28 

OWCP, therefore, properly found that the position of service order clerk reflected his wage-earning 

capacity effective August 30, 2018.

On appeal appellant disagreed that he had only sustained a lumbar sprain and requested 

that OWCP expand acceptance of his claim to include postlaminectomy syndrome, lumbar disc 

displacement, lumbar radiculopathy, a herniated L5-S1 disc, and disc bulges and tears. The Board 

notes, however, that OWCP had accepted a lumbar sprain and expanded acceptance to include 

postlaminectomy syndrome and disc displacement of an intervertebral disc without myelopathy at 

L5-S1. Appellant has the burden of proof to submit evidence showing any additional conditions 

not accepted or approved by OWCP resulted from the employment injury through the submission 

of reasoned medical evidence.29 

Appellant may request modification of the wage-earning capacity determination, supported 

by new evidence or argument, at any time before OWCP.

CONCLUSION

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

effective August 30, 2018 based on his capacity to earn wages as a service order clerk.

 

25 See supra note 15; see also M.P., Docket No. 18-0094 (issued June 26, 2018).

26 See J.B., Docket No. 17-0817 (issued April 26, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.6(b) (June 2013).

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

28 Supra note 16. OWCP divided appellant’s employment capacity to earn wages of $349.60 a week by the current 

pay rate of the position held when injured of $1,102.90 per week to find a 32 percent wage-earning capacity. It 

multiplied the pay rate at the time of injury of $814.33 by the 32 percent wage-earning capacity percentage. The 

resulting amount of $260.59 was subtracted from appellant’s date-of-injury pay rate of $814.33 which provided a loss 

of wage-earning capacity of $553.74 per week. OWCP then multiplied this amount by the appropriate compensation 

rate of three-fourths and applied adjustments, which yielded net compensation of $1,999.26 every four weeks.

29 See V.B., Docket No. 12-599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).
9

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 20, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board