United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.R., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

DIVISION OF POWER OPERATIONS,

Clinton, TN, Employer

__________________________________________

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Docket No. 21-0242

Issued: June 21, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 14, 2020 appellant, through counsel, filed a timely appeal from a 

September 29, 2020 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.

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.
2

ISSUE

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

effective March 6, 2020, based upon his wage-earning capacity in the constructed position of gate 

guard.

FACTUAL HISTORY

On April 15, 2014 appellant, then a 53-year-old conveyer car dumper operator, filed a 

traumatic injury claim (Form CA-1) alleging that on March 19, 2014 he sustained a left shoulder 

injury when shoveling a coal spill while in the performance of duty. He did not stop work. OWCP 

accepted the claim for left shoulder impingement syndrome and subsequently expanded the 

acceptance of the claim to include left shoulder and upper arm rotator cuff sprain, left shoulder 

tendons and bursae disorder, and aggravation of left shoulder primary osteoarthritis. It authorized 

left shoulder arthroscopic and rotator cuff repair surgery, which was performed on 

August 12, 2014. OWCP paid appellant on the supplemental rolls commencing May 7, 2014 and 

on the periodic rolls commencing August 24, 2014.

An April 9, 2015 functional capacity evaluation (FCE) report by Andrew E. Smith, a 

physical therapist, noted an 80 percent reliability measure, and that results of the evaluation 

suggested that appellant gave a self-limited effort with 39 of the 49 consistency measures within 

expected limits. The physical therapist, based on the FCE findings, found that appellant was 

capable of performing light-duty work with occasional lifting of 11 to 20 pounds, frequent lifting 

of 1 to 10 pounds, negligible constant lifting, frequent carrying up to 15 pounds, pushing to 16 

pounds absolute force, pulling up to 12 pounds absolute force, occasional walking, no ladder 

climbing, and no left arm overhead reaching. 

In a report dated April 30, 2015, Dr. Paul C. Brady, a Board-certified orthopedic surgeon, 

reviewed the FCE results and placed appellant on permanent light-duty work with restrictions of 

occasional lifting of 11 to 20 pounds, and occasional, frequent or negligible constant lifting of 1 

to 10 pounds. In form reports dated April 30 and November 19, 2015 and March 3, 2016, he noted 

that appellant was capable of limited-duty work and referenced the April 9, 2015 FCE for 

restrictions. 

On July 15, 2015 OWCP referred appellant, together with a statement of accepted facts

(SOAF), medical record, and list of questions, to Dr. Michael A. MacKay, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. It asked him to address appellant’s current 

work restrictions. In an August 3, 2015 report, Dr. MacKay noted appellant’s history of injury 

history and medical treatment. He examined appellant and diagnosed left rotator cuff tear, most 

likely recurent. Dr. MacKay opined that appellant was unable to perform his regular duties of a 

conveyor car dumper operator, but could work with restrictions. In a September 15, 2015 work 

capacity evaluation (Form OWCP-5c), he provided permanent light-duty work restrictions, which

included up to one to two hours of reaching above the shoulder, up to one to two hours of pushing 

up to 15 pounds, up to two hours of pulling up to 15 pounds, up to one hour of lifting up to 15 

pounds, and up to four hours of climbing. 
3

The employing establishment terminated appellant’s employment, effective September 6, 

2016, and requested that OWCP refer him for vocational rehabilitation services. 

In a form report dated October 27, 2017, Dr. Brady again referred to the FCE for a 

determination of appellant’s work capacity. 

On January 30, 2018 OWCP referred appellant to Dr. Nicholas A. Grimaldi, an osteopath 

Board-certified in orthopedic surgery. It requested that he address whether appellant continued to 

suffer objective residuals of the March 19, 2014 employment injury. OWCP further requested that

Dr. Grimaldi address whether appellant was capable of performing the duties of a conveyer car 

dumper operator and/or whether he was capable of working a limited or sedentary job. 

In a February 23, 2018 report, Dr. Grimaldi noted appellant’s history of injury and medical 

treatment. He examined appellant and diagnosed resolved left shoulder sprain, left shoulder rotator 

cuff tear, and left shoulder arthritis. Dr. Grimaldi explained that the left shoulder cuff tear would 

remain present due to the worsening of appellant’s arthritis and his rotator cuff tendon would 

continue to undergo degenerative-type tearing. He attributed appellant’s current symptoms to 

appellant’sleft shoulder arthritis, which he opined had been aggravated by the employment injury. 

Dr. Grimaldi found that appellant was capable of working a limited-duty job eight hours per day 

with restrictions. In an attached Form OWCP-5c, he indicated that appellant was capable of 

performing light-duty work with no reaching above his shoulder. 

On March 6, 2018 OWCP referred appellant for vocational rehabilitation services based 

on Dr. Grimaldi’s February 23, 2018 report, which indicated that he was capable of performing 

light-duty work. 

In a March 22, 2018 report, the vocational rehabilitation counselor described appellant’s 

education, training, and work experience. She contacted the employing establishment to explore 

whether a modified job within his work restrictions was available. The employing establishment 

advised that it was unable to accommodate appellant’s work restrictions. In a letter dated April 12, 

2018, the vocational rehabilitation counselor referred him for vocational testing to assist in 

determining his occupational/vocational goals and rehabilitation planning. 

A May 10, 2018 career focus basic vocational assessment report recommended that 

appellant be considered for training programs to obtain his general educational diploma. 

In a vocational rehabilitation plan dated August 13, 2018, OWCP’s vocational 

rehabilitation counselor determined that appellant was capable of returning to work as a gate guard 

under Department of Labor, Dictionary of Occupational Titles (DOT), No. 372.667-060, security 

guard, under DOT No. 372.667-034, and surveillance system monitor, under DOT No. 379.367-

010. The vocational rehabilitation counselor identified the applicable duties, provided job 

classification information, weekly pay rate information, and noted reasonable availability in 

appellant’s local commuting or geographical areas for both full-time and part-time openings. 

In a letter dated September 28, 2018, OWCP advised appellant that it had reviewed the 

plan for his return to work as a security guard, surveillance system monitor, or gate guard. It 

determined that the positions were within his medical restrictions and informed him that he would 

receive 90 days of placement assistance. OWCP explained that appellant’s wage-loss 
4

compensation benefits would be reduced at the end of the 90-day placement assistance period 

based upon the salary of $400.00 per week. 

On April 12, 2019 OWCP closed vocational rehabilitation services following an 

unsuccessful placement effort. It noted the security guard, surveillance system monitor, and gate 

guard positions identified by the vocational rehabilitation counselor were performed in sufficient 

numbers within appellant’s commuting area with hourly wages of $10.00. An attached job 

classification for the position of gate guard noted that it was a light-duty position and that on-thejob training would be provided for the position. 

In a May 15, 2019 supplemental report, Dr. Grimaldi, based on his review of new medical 

reports, the proposed positions, and physical examination findings advised that appellant’s work 

restriction were unchanged. He reviewed the physical requirements and job description for the 

proposed positions of security guard, surveillance system monitor, and gate guard, and concluded 

that they were within appellant’s work restrictions. 

By decision dated July 2, 2019, OWCP expanded the acceptance of appellant’s claim to 

include aggravation of left shoulder osteoarthritis. 

Dr. Grimaldi, in a supplemental report dated July 22, 2019, indicated that the accepted left 

shoulder impingement condition had resolved, and that appellant’s work restrictions were 

unchanged due to his left shoulder osteoarthritis. 

On August 13, 2019 OWCP notified appellant that it proposed to reduce his entitlement to 

wage-loss compensation based on his capacity to earn wages in the constructed position of gate 

guard, at the weekly pay rate of $400.00. It noted that the physical requirements of the gate guard

position did not exceed the restrictions and again noted that the selected position was medically 

suitable. OWCP further found that the position was vocationally suitable, based on the vocational

rehabilitation counselor’s report, and found 32 percent wage-earning capacity or a 68 percent loss 

of wage-earning capacity (LWEC), with a new gross compensation rate of $2,333.00.3 It attached 

the DOT job description for gate guard, and Dr. Grimaldi’s February 23, 2018 work restrictions

and May 15 and July 22, 2019 supplemental reports. The physical demands indicated that the 

strength level was light, involving exerting up to 20 pounds of force occasionally and lifting up to 

10 pounds of force frequently. 

On August 29, 2019 appellant disagreed with the proposal to reduce his wage-loss 

compensation. He asserted that his lack of a high school diploma was a reason given by 

prospective employers for not hiring him. Additionally, appellant’s preexisting chronic 

obstructive pulmonary disease (COPD) and left knee osteoarthritis were not considered by

Dr. Grimaldi in considering whether the gate guard position was within appellant’s restrictions. 

3 The vocational rehabilitation counselor noted that the source of wage data was a Bureau of Labor Statistics labor 

market survey dated May 2017 and State of Tennessee Department of Labor & Workforce Development market

survey dated June 2016. For the gate guard position, 14,120 jobs were found to be available in appellant’s commuting 

area with a weekly wage of $400.00 for full-time entry-level positions. 
5

He claimed that he could not work due to his inability to hold his arm above his shoulder and to 

sleep at night due to pain. 

By decision dated September 25, 2019, OWCP reduced appellant’s wage-loss 

compensation, effective October 13, 2019, consistent with its finding that the constructed position 

of gate guard with weekly earnings of $400.00 represented his wage-earning capacity. 

On October 7, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

On October 17, 2019 OWCP issued a corrected decision reducing appellant’s wage-loss 

compensation, effective October 13, 2019, but reflecting an effective pay rate date of March 19, 

2014, the date of injury, and not the pay rate date of May 7, 2014 used in the August 13, 2019 

proposal to reduce his wage-loss compensation and in the September 25, 2019 decision finalizing 

the reduction of his wage-loss compensation. 

Appellant, through counsel, reiterated his request for a telephonic hearing. 

Following a preliminary review, by decision dated December 18, 2019, OWCP’s hearing 

representative reversed the October 17, 2019 LWEC determination due to factual errors in the 

decision concerning the date of appellant’s injury. She related that on return of the case record 

OWCP should issue a de novo decision. 

On January 14, 2020 OWCP reinstated appellant’s compensation on the periodic rolls for 

temporary total disability, effective January 5, 2020. 

On January 17, 2020 OWCP again referred appellant to Dr. Grimaldi for an updated 

assessment of his work-related condition. 

Dr. Grimaldi, in a report dated February 3, 2020, noted that appellant’s past medical history 

included COPD, bronchitis, hypertension, depression, anxiety, sleep apnea, and hypothyroid 

conditions. Appellant related that he was unable to obtain a job due to his lack of a high school 

diploma. Additionally, he stated that he was trying to get his right shoulder condition accepted as 

work related. Dr. Grimaldi noted that appellant was seeking further compensation due to his right 

shoulder and left knee conditions, which were unrelated to the accepted left shoulder work 

conditions. He advised that the work restrictions previously provided were unchanged. 

Dr. Grimaldi concluded that appellant was capable of performing the constructed position of gate 

guard. 

By decision dated March 6, 2020, OWCP finalized the August 13, 2019 proposal to reduce 

appellant’s wage-loss compensation based on the constructed position of gate guard. 

On March 20, 2020 appellant, through counsel requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on July 15, 2020. 

In a July 16, 2020 report, Dr. Brady, diagnosed left shoulder glenohumeral degenerative 

joint disease. He informed appellant that if ,appellant’s current job as a security job did not fit 
6

within the restrictions set forth in his FCE, then the job was unsuitable. However, if the job was 

within the restrictions, then appellant was capable of performing that job. 

In a decision dated September 29, 2020, OWCP’s hearing representative affirmed the 

March 6, 2020 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. 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 LWEC.5

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. 

Shadrick6 and codified by regulations at 20 C.F.R. § 10.403 should be applied. 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.7

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

based on a reasonably current medical evaluation.9

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 

4 B.H., Docket No. 20-0729 (issued March 19, 2021); S.C., Docket No. 19-1680 (issued May 27, 2020); Betty F. 

Wade, 37 ECAB 556, 565 (1986).

5

20 C.F.R. §§ 10.402, 10.403.

6

5 ECAB 376 (1953).

7

See J.N., Docket No. 1901986 (issued August 27, 2020); S.W.,Docket No. 15-0598 (issued June 22, 2015);supra

note 5 at § 10.403(d).

8 B.H., supra note 4; J.H., Docket No. 18-1319 (issued June 26, 2019).

9

Id.
7

resulting from postinjury or subsequently acquired conditions. Any incapacity to perform the 

duties of the selected position resulting from subsequently-acquired conditions is immaterial to 

LWEC that can be attributed to the accepted employment injury and for which the claimant may 

receive compensation.10

OWCP’s procedures provide that: 

“After initial adjudication, it may be determined that the claimant is no longer 

entitled to compensation or medical benefits, or any portion of those benefits. Per 

20 C.F.R. § 10.540 (c) through (e), some terminations require notice prior to final 

cessation of benefits, while others do not. OWCP will not provide such written 

notice when the beneficiary has no reasonable basis to expect that payment of 

compensation will continue.”

11

OWCP’s procedures further explain that pretermination notice is required if wage-loss 

benefits are being paid on the periodic rolls.

12

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s wageloss compensation, effective March 6, 2020, based upon his wage-earning capacity in the 

constructed position of gate guard.

OWCP initially issued a notice on August 13, 2019 proposing to reduce appellant’s wageloss compensation based upon his ability to earn wages on the constructed position of gate guard, 

at the rate of $400.00 per week. This notice of proposed reduction of benefits was made final on 

September 25, 2019. 

On October 7, 2019 appellant, through counsel, timely requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, on October 17, 

2019 OWCP issued a corrected decision finalizing the proposed reduction of appellant’s wageloss compensation, based on the constructed position of gate guard. OWCP noted that it was 

issuing a corrected decision as the initial decision did not properly reflect his date-of-injury pay 

rate. 

By decision dated December 18, 2019, following preliminary review, OWCP’s hearing 

representative reversed the October 17, 2019 decision. She found that OWCP had improperly 

noted that the injury had occurred on April 4, 2005 while the injury had in fact occurred on 

March 19, 2014. The hearing representative concluded that appellant was entitled to a decision 

which accurately depicted the factual portion of the claim. She remanded the case for a de novo

decision regarding his wage-earning capacity. 

10 Id.

11 Federal (FECA) Procedure Manual, Part 2 --Claims, Disallowances, Chapter 2.1400(February 2013).

12 Id. at Chapter 2.1400.4b(1)(February 2013). 
8

On January 14, 2020 OWCP reinstated appellant’s temporary total disability benefits on 

the periodic rolls. 

OWCP issued a decision on March 6, 2020 finalizing the August 13, 2019 the notice of 

proposed reduction of appellant’s compensation based upon his capacity to earn wages as a gate 

guard. 

The Board finds that as appellant’s wage-loss benefits had been reinstated on the periodic 

rolls on January 14, 2020 OWCP’s procedures required that OWCP issue a new notice of proposed

reduction of compensation benefits, prior to its March 6, 2020 decision finalizing the LWEC

determination.13

As OWCP did not issue a new notice of proposed reduction of wage-loss compensation 

prior to its March 6, 2020 final decision reducing appellant’s compensation based on his capacity 

to earn wages as a gate guard, the Board finds that OWCP improperly reduced his wage-loss 

compensation.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s wageloss compensation, effective March 6, 2020, based on his capacity to earn wages in the constructed 

position of gate guard.

13 See Harry J. Day, Docket No. 02-1720 (issued January 28, 2003); James M. Hamada, Docket No. 01-1806 

(issued June 25, 2002); and Jimmy W. Bassett, Docket No. 99-22 (issued July 21, 1999).
9

ORDER

IT IS HEREBY ORDERED THAT the September 29, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 21, 2022

Washington, DC

Patricia H. Fitzgerald, 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