United States Department of Labor

Employees’ Compensation Appeals Board

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B.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rancho Cordova, CA, Employer

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Docket No. 20-0729

Issued: March 19, 2021

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 13, 2020 appellant filed a timely appeal from a September 16, 2019 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 16, 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 has met its burden of proof to reduce appellant’s wage-loss 

compensation, effective September 17, 2019, based on her capacity to earn wages as an 

information clerk.

FACTUAL HISTORY

On November 22, 2013 appellant, then a 48-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she sustained injuries to her left hand, thumb, knee, 

and hip when she slipped on a grape while in the performance of duty. She stopped work on 

November 23, 2013.

OWCP accepted the claim for left knee contusion, lumbosacral sprain, left foot sprain, and 

left thumb sprain.3 It paid appellant wage-loss compensation on the supplemental rolls effective 

January 7, 2014 and on the periodic rolls effective April 6, 2014.

Appellant received treatment from Dr. Rudolf Iskander, Board-certified in physical 

medicine and rehabilitation. In January 8 and 22, 2014 narrative and work status reports,

Dr. Iskander stated that appellant was capable of modified-duty work with restrictions of no 

lifting/carrying over 10 pounds, limited driving of commercial vehicles to three hours per day,

repetitive bending/twisting to less than one hour per day, and occasional standing, walking, and 

climbing of less than one hour per day.

On March 14, 2014 OWCP referred appellant for vocational rehabilitation services based 

on Dr. Iskander’s January 22, 2014 report, which indicated that she was capable of performing 

modified work duties.

In a June 10, 2014 memorandum, the vocational rehabilitation counselor determined that 

appellant was capable of returning to work as an information clerk, under the Department of Labor,

Dictionary of Occupational Titles (DOT), No. 237.367-022, and an insurance clerk, under DOT 

No. 214.362-022. Both positions were classified as sedentary in nature.

In a letter dated June 20, 2014, OWCP advised appellant that it had reviewed the plan for 

her return to work as an information or insurance clerk. It determined the positions were within 

her medical restrictions and informed appellant that she would receive 90 days of placement 

assistance. OWCP explained that appellant’s wage-loss compensation benefits would be reduced 

at the end of the 90-day placement assistance period based upon the salary of $10.00 to $13.00 per 

hour.

In a July 21, 2014 report, Dr. Iskander indicated that appellant’s work restrictions were 

lifting or carrying 15 to 20 pounds, repetitive bending/twisting less than three hours per day,

 

3 The record reflects that appellant has a prior claim for a September 6, 2011 work-related dog bite, under OWCP 

File No. xxxxxx386. Appellant was released to full duty on September 16, 2011. The claim was administratively 

handled by OWCP as no time lost. She was involved in a nonwork-related motor vehicle accident on 

September 29, 2014.
3

standing, walking, and climbing occasionally up to two hours per day, and limited kneeling. In a 

January 5, 2015 report, he released appellant to return to her usual work.

In a July 13, 2015 report, the vocational rehabilitation counselor noted that appellant 

successfully completed her computer training for a certificate in medical insurance billing and 

coding at Occupational Skills Center Computer Training. Placement services for appellant were 

approved until November 20, 2015.

On December 1, 2015 the vocational rehabilitation counselor reported that on

November 30, 2015 appellant began working part time at a supermarket as a courtesy clerk.

OWCP informally adjusted appellant’s compensation payments beginning November 30, 2015, 

based on her actual earnings.

On December 2, 2015 the vocational rehabilitation counselor completed a job classification 

report for positions as an information clerk, DOT No. 237.367-022, and an insurance clerk, DOT 

No. 214.362-022.

On March 25, 2016 the vocational rehabilitation counselor documented that the 

information clerk position remained vocationally suitable in relation to appellant’s age, education, 

and experience because of her training and work as a letter carrier and as an office clerk in an 

appliance parts center. The vocational rehabilitation counselor noted that the information clerk 

position had a weekly salary range from $410.00 to $436.00. The vocational rehabilitation 

counselor recommended a rating of $10.25 per hour based on actual employer contacts.

On October 15, 2018 OWCP referred appellant for a second opinion examination with

Dr. Frank Guellich, a Board-certified orthopedic surgeon. Dr. Guellich was asked to address 

whether appellant continued to suffer objective residuals of the November 22, 2013 employment 

injury, which caused left knee contusion, lumbosacral sprain, left foot sprain, and left thumb 

sprain. He was also specifically asked to address whether appellant was capable of performing 

letter carrier duties. OWCP did not request that Dr. Guellich address appellant’s ability to perform 

the duties of the information clerk position.

In a December 20, 2018 report, Dr. Guellich noted appellant’s history of injury and 

treatment. He examined appellant and diagnosed: left thumb contusion and strain, industrial and 

resolved; left foot contusion and strain, industrial and resolved; lumbosacral spine L3 to L5 disc 

bulges, industrial, not resolved; and left knee mild patella facet arthritic changes, industrial, not 

resolved. Dr. Guellich opined that appellant was partially disabled as a result of the employment 

injury and unable to return to her letter carrier position.

On February 27, 2019 a supermarket representative advised that appellant began her 

employment on November 5, 2015 performing clerical duties and worked between 16 and 24 hours 

per week.

By letter dated June 3, 2019, OWCP requested that appellant provide a detailed description 

of her job duties as a cashier or copies of the position description with the physical requirements. 

On June 26, 2019 it received a response from appellant indicating that she scanned customers’

groceries, took payments, and occasionally bagged groceries.
4

On August 15, 2019 OWCP proposed to reduce appellant’s wage-loss compensation 

benefits because she was no longer totally disabled and had the capacity to earn wages in the 

position of information clerk, DOT No. 237.367-022, at the rate of $494.00 per week. It considered 

appellant’s actual earnings as a cashier and explained that appellant had earned wages at the 

supermarket since 2015 and her actual earnings did not represent her wage-earning capacity, as 

she was paid for part-time employment.4 OWCP explained that appellant’s wage-earning capacity 

was less than the current rate of pay of the job she held when injured and proposed to reduce her 

wage-loss compensation to $2,005.00 each four weeks. It attached the job classification for 

information clerk.5 OWCP allotted appellant 30 days to respond to the proposed reduction. No 

response was received.

By decision dated September 16, 2019, OWCP found that appellant was able to perform 

the position of information clerk and reduced her compensation effective September 17, 2019. It

found that the vocational rehabilitation counselor had properly considered all appropriate factors 

and evidence and that the position of information clerk represented appellant’s loss of wageearning capacity (LWEC). OWCP noted that the report of Dr. Guellich was the most recent 

medical report of record and constituted the weight of the medical evidence. It further related that,

while Dr. Guellich indicated that appellant could not return to the letter carrier position, he had 

related that appellant was partially disabled as a result of the employment injury.

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of the compensation benefits.6 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 LWEC.7

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.8 Reemployment may not be considered representative of the injured employee’s wage-

 

4 OWCP noted that, while working part-time as a cashier/clerk, appellant was required to stand and/or walk the 

entire shift, with a few minutes for breaks. It also noted that appellant would be handling items in excess of 10 to 20 

pounds when bagging groceries.

5 The job description for the information clerk position, DOT 237.067.022, is as follows: “Answers inquiries from 

persons entering establishment; provides information regarding activities conducted at establishment, and location of 

departments, offices, and employees within the organization; informs customer of location of store merchandise in 

retail establishment; provides information concerning services, such as laundry and valet services in hotel; receives 

and answers requests for information from company officials and employees; may call employees or officials to 

information desk to answer inquiries; and may keep record of questions asked.”

6 See J.F., Docket No. 19-0864 (issued October 25, 2019); C.H., Docket No. 19-0136 (issued May 23, 2019).

7

Id.

8 5 U.S.C. § 8115(a).
5

earning capacity when an injured employee has been released to full-time work, but working less 

than full-time hours.9

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.10 

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

market under normal employment conditions. 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. 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 or her 

commuting area.11

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

based on a reasonably current medical evaluation.13

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 

resulting from post injury 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.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 DOT or otherwise available in the open market, that fits 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 open 

labor market should be made through contact with the state employment service, local Chamber 

 

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

Earnings, Chapter 2.815.2(b) (June 2013).

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

11 Id.

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

13 Id.

14 Id.
6

of Commerce, employing establishment contacts, and actual job postings.15 Lastly, OWCP applies 

the principles set forth in Albert C. Shadrick,

16 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 has not met its burden of proof to reduce appellant’s wageloss compensation, effective September 17, 2019, based on her capacity to earn wages as an 

information clerk.

The record reflects that OWCP considered appellant’s part-time work at a supermarket 

since 2015. It properly determined that her actual earnings did not represent her wage-earning 

capacity, since they were due to part-time employment and appellant had the capacity to perform 

full- time work.

19

OWCP determined that appellant’s wage-earning capacity was represented by the 

constructed position of information clerk, as it was within the medical restrictions provided by 

second opinion physician, Dr. Guellich. In a December 20, 2018 report, Dr. Guellich opined that 

appellant was partially disabled as a result of the employment injury and unable to return to her 

letter carrier position. The Board finds that OWCP improperly determined that Dr. Guellich found 

that appellant could perform the duties of the constructed position. OWCP did not forward a copy 

of the information clerk position description to Dr. Guellich, and it did not ask that he address 

whether appellant could perform the duties of the constructed position. Furthermore, Dr. Guellich 

did not provide appellant’s work restrictions for the information clerk position. The Board,

therefore, finds that Dr. Guellich’s December 20, 2018 report did not establish that appellant was 

medically able to perform the duties of the information clerk position. 

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

wage-loss compensation, effective September 17, 2019, based on her capacity to earn wages as an 

information clerk.

 

15 C.M., supra note 10; Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, 

Chapter 2.813.19d (November 2011).

16 5 ECAB 376 (1953).

17 20 C.F.R. § 10.403.

18 5 U.S.C. § 8115(a).

19 Supra note 9.
7

ORDER

IT IS HEREBY ORDERED THAT the September 16, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: March 19, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board