United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, PORTLAND 

INTERNATIONAL AIRPORT, Portland, OR, 

Employer

__________________________________________

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Docket No. 19-0781

Issued: February 2, 2022

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 26, 2019 appellant, through counsel, filed a timely appeal from a 

September 4, 20182 merit decision of the Office of Workers’ Compensation Programs (OWCP).3 

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 The case record also contains a September 13, 2018 merit decision of OWCP regarding the suspension of 

appellant’s wage-loss compensation. As counsel did not appealfrom that decision, it is not presently before the Board.

See 20 C.F.R. § 501.3.

3 Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b).

Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. 

CONTINUED
2

Pursuant to the Federal Employees’ Compensation Act4(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.5

ISSUE

OWCP has met its burden of proof to reduce appellant’s compensation, effective

December 18, 2017, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, for failure to

cooperate with vocational rehabilitation without good cause.

FACTUAL HISTORY

This case has previously been before the Board.6 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On December 19, 2003 appellant, then a 48-year-old transportation security screener, filed 

a traumatic injury claim (Form CA-1), alleging that on December 9, 2003 she injured her back 

when she leaned forward in a broken chair and “almost fell.” She stopped work on December 15, 

2003 and did not return. OWCP accepted the claim for disc protrusion at L5-S1, lumbosacral 

strain, and chronic pain syndrome. It paid appellant wage-loss compensation on the supplemental 

rolls as of January 29, 2004 and on the periodic rolls as of January 23, 2005. 

In May 2012, appellant was referred for vocational rehabilitation. The rehabilitation 

counselor identified the positions of office clerk, general, and receptionist and completed a labor 

market survey for each position on August 6, 2012. A vocational rehabilitation plan for computer 

skills training for these positions was approved and computer training was to begin. Appellant 

refused to sign the rehabilitation plan and did not begin computer training. 

By decision dated January 3, 2014, OWCP finalized a December 3, 2013 proposed 

reduction of appellant’s compensation, based on her capacity to earn wages in the constructed 

position of an office clerk, general, Department of Labor, Dictionary of Occupational Titles (DOT) 

#209.562-010, effective January 12, 2014. 

§ 501.5(a). In support of her oral argument request, appellant asserted that oral argument should be granted due to 

contradictions in the medical evidence with regard to whether she could perform the selected position of order clerk. 

The Board, in exercising its discretion, denies appellant’s request for oral argument because this matter requires an 

evaluation of the medical evidence required. As such, the arguments on appeal can be adequately addressed in a 

decision based on a review of the case record. Oral argumentin this appeal would further delay issuance of a Board 

decision and not serve a useful purpose. As such, theoral argument request is denied and this decision is based on 

the case record as submitted to the Board. 

4

5 U.S.C. § 8101 et seq.

5 The Board notes that, following the September 4, 2018 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.

6 Docket No. 15-1060 (issued March 15, 2016), Docket No. 15-1060, aff’d as modified (issued March20, 2017). 
3

On January 30, 2014 appellant, through counsel, timely requested a hearing before a

representative of OWCP’s Branch of Hearings and review. By decision dated December 3, 2014, 

the hearing representative found that OWCP considered the proper factors in determining that the 

constructed position reflected appellant’s wage-earning capacity and had properly reduced her

compensation, effective January 12, 2014. 

On April 14, 2015 appellant, through counsel, filed a timely appeal with the Board. By 

decision dated March 15, 2016, the Board reversed the December 3, 2014 decision, finding that 

OWCP did not meet its burden of proof.7 OWCP thereafter returned appellant to the full 

compensation wage-loss benefits retroactive to January 12, 2014. 

In December 2014, while the prior appeal was pending before the Board, appellant began 

pain management treatment with Dr. Paul K. Won, Board-certified in public health and preventive 

medicine.

In a June 2, 2015 report, Dr. Derrick K. Yoshinaga, a treating osteopath specializing in 

occupational and preventive medicine, described appellant’s physical examination findings, 

diagnosed chronic nonmalignant low back pain, and recommended that she continue her present 

medications. He advised that she could work in the light category with permanent restrictions of 

lifting and carrying 15 pounds occasionally and 8 pounds frequently; pushing and pulling 19 

pounds occasionally and 10 pounds frequently; with sitting limited to 60 minutes at a time for a 

total of 6 hours/8-hour day; standing and walking limited to 90 minutes with small breaks for 6 

hours/8-hour day; with occasional bending, squatting, kneeling, crawling, reaching, and stair 

climbing. Dr. Yoshinaga repeated his findings and conclusions on January 20, 2016.

On May 2, 2016 OWCP referred appellant to Mary d’Autremont, a certified rehabilitation 

counselor for vocational rehabilitation services. It notified Ms. d’Autremont that, although 

appellant’s physician indicated that appellant could perform light duties, his physical limitations 

were, in fact, sedentary. 

By letter dated June 9, 2016, Ms. d’Autremont forwarded an interest inventory to appellant 

for her completion. She noted that appellant, and a computer skills training representative had met 

to go over computer and software skill training. On July 5, 2016 Ms. d’Autremont completed a 

transferrable skills analysis and forwarded her report to OWCP. She indicated that appellant had 

not worked for 13 years and listed Dr. Yoshinaga’s physical limitations. The rehabilitation 

counselor noted that appellant’s work restrictions were outdated and that she had sedentary work 

capacity. Ms. d’Autremont recommended six months of concentrated computer training followed 

by a three- to six-month internship for appellant to gain actual on-the-job experience.

On July 19, 2016 Ms. d’Autremont wrote Dr. Won noting that appellant had previously 

been treated by his colleague, Dr. Yoshinaga, who had retired, and asked that Dr. Won complete 

an attached work capacity evaluation (Form OWCP-5c). Ms. d’Autremont noted that the 

restrictions provided by Dr. Yoshinaga were considered sedentary. 

7

Id.
4

In a July 29, 2016 report, Dr. Won discussed appellant’s pain management plan and 

advised that her modified work restrictions were permanent and would continue. 

Dr. Kathy Chang, Board-certified in preventive medicine, submitted a Form OWCP-5c 

dated October 25, 2016. She advised that appellant could not return to her usual employment due 

to status post lumbar fusion with chronic low back pain. Dr. Chang indicated that maximum 

medical improvement had been reached, and that appellant could work eight hours daily with 

permanent restrictions. She specified restrictions that appellant could sit and walk for no more 

than six hours daily, could bend, stoop, squat, knee, and climb for no more than two hours daily, 

and had a 10-pound restriction on pushing, pulling, and lifting. 

On December 7, 2016 OWCP informed Ms. d’Autremont that a formal vocational 

assessment was needed. 

By report dated January 24, 2017, Dr. Chang noted seeing appellant for pain medication 

review. She related that appellant’s work restrictions were permanent and would continue.

Vocational testing was conducted on February 15, 2017. The vocational rehabilitation 

counselor completed an updated transferrable skills analysis on March 7, 2017, again 

recommending six months of computer training to be followed by a three- to six-month internship. 

On March 28, 2017 Ms. d’Autremont completed labor market surveys for the positions of order 

clerk and receptionist. 

On April 12, 2017 OWCP approved the proposed plan for appellant to take six months of 

computer and office skills training, to begin May 1, 2017 at a community college. It noted that 

the training would provide her with the necessary skills for reemployment as a receptionist or an 

order clerk or similar positions. 

On May 8, 2017 Ms. d’Autremont informed OWCP that appellant had not attended 

training, noting that she maintained that she was not well enough to participate. 

By notice dated May 19, 2017, OWCP proposed to reduce appellant’s wage-loss 

compensation because she did not begin training. It noted that the results of tests and evaluations 

performed by Dr. Yoshinaga dated January 20, 2017 and his restrictions on October 25, 2016 

clearly showed that she could complete the training program. OWCP provided appellant 30 days 

to contact her rehabilitation counselor and begin the approved training, and informed her that, if 

she did not comply, the rehabilitation effort would be terminated and action initiated to reduce 

appellant’s compensation to reflect her probable wage-earning capacity had she completed the 

training. 

In a May 30, 2017 report, Dr. Chang repeated Dr. Yoshinaga’s restrictions that advised that 

appellant was restricted to lifting and carrying no more than 15 pounds occasionally and 8 pounds 

frequently; pushing and pulling no more than 19 pounds occasionally and 10 pounds frequently;

sitting no more than 60 minutes at a time for a total of 6 hours/8-hour day;standing and walking 

no more than 90 minutes with small breaks for 6 hours/8-hour day; and occasional bending, 

squatting, kneeling, crawling, reaching, and stair climbing. 

On June 30, 2017 Ms. d’Autremont informed OWCP that she had heard nothing further 

from appellant, and vocational rehabilitation services were closed. 
5

By letter dated July 17, 2017, OWCP informed appellant that an updated medical report 

was required and described what the medical report should contain. 

In reports dated July 24 and November 28, 2017, Dr. Chang noted seeing appellant for 

medication review and opioid taper. She described examination findings of mild tenderness to the 

back with strength 5/5, sitting straight leg raise negative bilaterally, and sensation subjectively 

diminished to the legs, especially the great toe. Squat was decent, and gait was within normal 

limits. Dr. Chang diagnosed history of lumbosacral spine surgery and chronic nonmalignant pain 

and noted that appellant’s opioid medication was being tapered.8

By decision dated December 18, 2017, OWCP finalized the May 19, 2017 proposed 

reduction of appellant’s wage-loss compensation, pursuant to 5 U.S.C. §§ 8104 and 8113(b), 

because she failed without good cause to undergo vocational rehabilitation as directed OWCP 

included the DOT #249.362-026, position description for order clerk, as follows:

“Processes orders for material and merchandize received by mail, telephone, or

personally from customer or company employees, manually or using a computer or 

calculating machine. Edits orders received for price and nomenclature. Informs 

customers of unit price, shipping date, anticipated delays, and any additional 

information needed by the customer, using mail or telephone. Writes or types order 

forms, or enters data into a computer to determine total cost for customers.”

The notice further indicated that the order clerk position had a sedentary strength level with 

frequent reaching, handling, and fingering, and no kneeling, crouching, stooping, climbing, or 

balancing, which did not exceed appellant’s current work restrictions as provided by Dr. Chang on 

May 30, 2017, and was therefore medically suitable. OWCP indicated that had appellant 

successfully completed the approved vocational rehabilitation program, she would have been

capable of securing reemployment as an order clerk, which had an entry-level wage of $12.15 per 

hour, or $487.64 per week. It noted that, following a labor market survey dated March 28, 2017, 

the rehabilitation counselor confirmed that positions of order clerk remained reasonably available 

within appellant’s commuting distance and represented her wage-earning capacity. OWCP

applied the Shadrick formula,9finding that she had a 75 percent wage-earning capacity, or 25 

percent loss of wage-earning capacity. It reduced appellant’s wage-loss compensation effective 

that day. 

On January 13, 2018 appellant, through counsel, requested a hearing before a

representative of OWCP’s Branch of Hearings and Review. A hearing was held on June 19, 2018. 

Counsel asserted during the hearing that OWCP tried to get appellant to sign a contract for a fulltime job search which did not exclude weekends or holidays, and that the selected position required 

frequent reaching. No further evidence was received.

8 On December 13, 2017 OWCP issued an amended proposed reduction of benefits. This was redacted on 

December 14, 2017. 

9 Albert C. Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403.
6

By decision dated September 4, 2018, the hearing representative affirmed the 

December 18, 2017 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.10 Section 8104(a) of

FECA provides that OWCP may direct a permanently disabled employee to undergo vocational

rehabilitation.11

Section 8113(b) of FECA12 provides: 

“If an individual without good cause fails to apply for an undergo vocational 

rehabilitation when so directed under section 8104 of this title, the Secretary, on 

review under section 8128 of this title and after finding that in the absence of the 

failure the wage-earning capacity of the individual would probably have 

substantially increased, may reduce prospectively the monetary compensation of 

the individual in accordance with what would probably have been his wage-earning 

capacity in the absence of the failure, until the individual in good faith complies 

with the direction of the Secretary.13

Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP 

will take when an employee without good cause fails or refuses to apply for, undergo, participate 

in, or continue to participate in a vocational rehabilitation effort when so directed. Section 

10.519(a) provides, in pertinent part: 

“Where a suitable job has been identified, OWCP will reduce the employee’s future 

monetary compensation based on the amount which would likely have been his or 

her wage-earning capacity had he or she undergone vocational rehabilitation. [It] 

will determine this amount in accordance with the job identified through the 

vocational rehabilitation planning process, which includes meetings with the 

OWCP nurse and the [employing establishment]. The reduction will remain in 

effect until such time as the employee acts in good faith to comply with the direction 

of OWCP.”

14

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

11 5 U.S.C. § 8104(a).

12 Supra note 3.

13 5 U.S.C. § 8113(b).

14 20 C.F.R. § 10.519(a).
7

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s 

compensation, effective December 18, 2017, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. 

§ 10.519. 

On remand from the Board’s March 15, 2016 decision,15 OWCP retroactively returned 

appellant to the periodic compensation rolls. In April 2016, it again referred her for vocational 

rehabilitation services. As noted above, appellant refused to attend recommended computer skills 

training, and OWCP reduced her compensation effective December 18, 2017, finding that she 

could earn wages in the selected position of order clerk. 

The issue of whether an employee has the physical ability to perform a selected position is 

a medical question that must be resolved by probative medical evidence. 16 In this case, the selected 

position of order clerk requires frequent reaching, whereas the medical evidence of record 

establishes that appellant can only reach occasionally.

With respect to the issue of medical suitability of the selected positon, OWCP relied on the 

physical restrictions provided by attending physicians Dr. Yoshinaga and Dr. Chang. In reports 

dated June 2, 2015 and January 20, 2016, Dr. Yoshinaga restricted appellant’s activity to lifting 

and carrying no more than 15 pounds occasionally, 8 pounds frequently; pushing and pulling no 

more than 19 pounds of force occasionally, 10 pounds frequently; sitting no more than 60 minutes 

at a time 6 hours/8-hour day; standing and walking no more than 90 minutes at a time for 6 hours/8-

hour day; and occasionally bend, squat, kneel, crawl, reach, and stairs. In a work ca pacity 

evaluation dated October 25, 2016, Dr. Chang placed no restriction on reaching. However, on 

May 30, 2017 she adopted Dr. Yoshinaga’s restrictions. OWCP did not seek clarification from

Dr. Chang regarding this discrepancy. 

OWCP’s procedures state that, “if the medical evidence is not clear and unequivocal, or is 

old enough to be considered stale (generally greater than eighteen months old), the [claims 

examiner] should seek clarification from the attending physician, Second Opinion or Referee 

specialist as appropriate.”

17

 The Board finds that the medical evidence herein “is not clear and 

unequivocal”, as the selected position of order clerk requires frequent reaching, and the medical 

evidence indicates that appellant is limited to occasional reaching.

18

 As such, the claims examiner 

should have sought clarification from Dr. Chang.19 Thus, the Board finds that OWCP failed to 

meet its burden of proof. 

15 Supra note 5.

16 See G.M., Docket No. 18-1236 (issued June 18, 2019); Maurissa Mack, 50 ECAB 498 (1999).

17 Federal (FECA) Procedure Manual, Part 2 --Claims, Determining Wage-Earning Capacity, Chapter 2.816.4(d) 

(June 2013).

18 Id. at Chapter 2.816.4(d) (June 2013); see also B.C., Docket No. 15-1861 (issued October 3, 2016).

19 Id. 
8

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s 

compensation, effective December 18, 2017, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. 

§ 10.519. 

ORDER

IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: February 2, 2022

Washington, DC

Alec J. Koromilas, 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