United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SAFETY 

ADMINISTRATION, FEDERAL AIR 

MARSHAL SERVICE, Renton, WA, Employer

__________________________________________

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Docket No. 21-1055

Issued: March 30, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 7, 2021 appellant, through counsel, filed a timely appeal from a June 23, 2021 

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.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

5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 23, 2021 decision, appellant submitted additional evidence to 

OWCP. 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 appellant has met his burden of proof to modify OWCP’s 

September 28, 2018 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

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

are as follows.

On October 1, 2013 appellant, then a 46-year-old federal air marshal, filed a traumatic

injury claim (Form CA-1) alleging that on September 25, 2013 he injured his cervical spine when 

participating in a mandatory high intensity interval training while in the performance of duty. 

OWCP accepted the claim for a cervical strain. On August 6, 2014 it expanded the acceptance of 

the claim to include cervical disc herniation at C6-7. Appellant stopped work on August 6, 2014 

and OWCP paid him wage-loss compensation for disability from work on the supplemental rolls. 

He sought treatment for his conditions with Dr. Jason Thompson, a Board-certified orthopedic

surgeon. On August 26, 2014 appellant underwent OWCP-authorized surgery for a C6-7 cervical 

disc arthroplasty. Commencing October 11, 2014 OWCP paid appellant wage-loss compensation

on the periodic rolls.

In a January 29, 2015 report, Dr. Thompson discussed appellant’s status post C6-7 disc 

arthroplasty. He opined that appellant could return to work in the public sector as he had no 

restrictions on lifting, bending, twisting, or exercising. However, Dr. Thompson found that

appellant could not return to a law enforcement position where the potential for unexpected

physical violence to the head and neck could be anticipated.

On February 3, 2015 OWCP referred appellant to Dr. Louis Kretschmer, a Board-certified

orthopedic surgeon, for a second opinion evaluation. In a February 17, 2105 narrative report,

Dr. Kretschmer indicated that, although, appellant did not have any specific restrictions, he would 

not be able to return to work as a federal air marshal as it would be unsafe for him to participate in 

vigorous physical confrontation with fellow employees during training or aggressive passengers 

on an airplane. He indicated that appellant would be an excellent candidate for vocational 

rehabilitation. In an accompanying February 17, 2015 work capacity evaluation (Form OWCP5c), Dr. Kretschmer determined that appellant’s restrictions were permanent and that appellant

was capable of performing sedentary-, light-, and medium-duty work.

On March 19, 2015 OWCP referred appellant for vocational rehabilitation to find a suitable

position within the restrictions provided by Dr. Kretschmer on February 17, 2015. On June 15, 

2015 appellant submitted a change of address and notified OWCP that he was relocating from 

Maple Valley, Washington to Chandler, Arizona. From September 8, 2015 through February 11, 

2016, appellant underwent training to become a Certified Protection Professional (CPP). After 

obtaining his CPP certification, he worked with his vocational rehabilitation counselor for job 

placement. Beginning August 9, 2016 appellant sought treatment with Dr. Steven Berman, a 

treating physician.

4 Docket No. 19-1410 (issued November 5, 2020).
3

In a September 29, 2016 memorandum, appellant’s vocational rehabilitation counselor 

noted that the position of internal security manager was vocationally suitable for appellant. She 

found that the position remained medically suitable as the duties were within appellant’s work 

limitations and the position was available in sufficient numbers within appellant’s commuting area 

based on an August 29, 2016 labor market survey. The vocational rehabilitation counselor 

reported that appellant would expect to earn the average wage of $19.45 per hour due to his prior 

experience and his recently acquired CPP industry certification.

On December 7, 2016 appellant submitted another change of address and notified OWCP

that he was relocating from Chandler, Arizona to Sparks, Nevada.

On December 7, 2017 OWCP requested that appellant’s treating physician evaluate his

functional capabilities by completing a Form OWCP-5c. On a December 12, 2017 Form OWCP5c, Dr. Berman reported that appellant had reached maximum medical improvement (MMI) and

his restrictions remained unchanged. He reported that appellant could perform sedentary-, light-, 

and medium-duty work.

On February 2, 2018 OWCP asked appellant’s vocational rehabilitation counselor to 

perform a labor market survey for the purpose of determining if the internal security manager 

position was available in appellant’s new job market of Sparks, Nevada. On March 28, 2018 the 

counselor confirmed that the internal security manager job still met appellant’s criteria based on 

the March 23, 2018 labor market survey. She reported that appellant was capable of working as 

an internal security manager and that labor market surveys showed that the position wasreasonably 

available in his commuting area of Sparks, Nevada. The Department of Labor, Dictionary of 

Occupational Titles (DOT) describesthe internal security manager position (DOT #378.137-0102) 

as involving supervision and coordination of activities of store detectives, conducting private 

investigations, and selling internal protective service to wholesale and retail businesses. The 

position required assigning store detectives to shifts at various locations according to job 

requirements and workers’ abilities, skills, and experience. The DOT, on a job classification report 

(Form OWCP-66), described the physical requirements of the position as light work to include 

exerting up to 20 pounds of force occasionally. The counselor reported that the salary for this 

position ranged from $18.00 to $23.00 per hour based on the labor market survey. She 

recommended the average wage of $20.50 per hour based on appellant’s previous experience 

performing this position and his recently acquired CPP industry certification.

In a letter dated July 9, 2018, Dr. Berman verified that appellant had reached MMI and was

capable of working full time with the restrictions that had been in place since 2014. He reported

that appellant was in a permanent stationary status and there were no significant changes to his

condition since the last visit. Dr. Berman found that there were no changes in his work status or

the recommended work restrictions.

On August 23, 2018 OWCP notified appellant that it proposed to reduce his wage-loss

compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised him that he was only partially

disabled from work and that the position of internal security manager (DOT #378.137-0102) was

medically and vocationally suitable with regard to his medical limitations, work experience, and

education. OWCP explained that the physical requirements of the internal security manager did

not exceed the restrictions imposed by Dr.Berman’s December 12, 2017 and July 9, 2018 reports. 

It found that appellant was capable of earning wages at the rate of $820.00 per week as an internal

security manager and that the position was reasonably available within his commuting area. 

OWCP provided an attachment detailing the application of the formula set forth in Albert C.
4

Shadrick.

5

 It afforded appellant 30 days to submit evidence and argument challenging the

proposed action.

In a September 9, 2018 letter, counsel disagreed with the proposed reduction of

compensation. He argued that the job analysis was improper because it was based on appellant’s 

prior residence in Seattle, Washington. Counsel asserted that the job availability and wage rate 

should have been based on the job market for Sparks, Nevada, where appellant currently resided. 

He further argued that the job availability and hourly wage was likely far less in Sparks, Nevada 

and requested a new labor market survey.

By decision dated September 28, 2018, OWCP reduced appellant’s wage-loss

compensation benefits, effective September 30, 2018, based on his ability to earn wages of

$820.00 per week as an internal security manager. It verified that the March 23, 2018 labor market

study, was conducted for his commuting area in and around Reno, Nevada and not Seattle,

Washington as asserted by counsel for appellant. OWCP explained that the physical duties of the

position were in accordance with the restrictions provided by Dr. Berman’s July 9, 2018 report,

and that appellant’s rehabilitation counselor had determined that he was vocationally capable of

performing the constructed position. It further found that appellant was no longer totally disabled

from work and that the position of internal security manager was medically and vocationally

suitable, and represented his wage-earning capacity. OWCP applied the Shadrick6formula to

determine appellant’s LWEC and adjust his compensation.

On October 9, 2018 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review. During the hearing held on 

January 25, 2019, appellant testified that he was unable to accept most of the jobs in the labor 

market study due to other conditions. 

By decision dated March 29, 2019, OWCP’s hearing representative affirmed the

September 28, 2018 decision. She concluded that the position of internal security manager 

reasonably and accurately reflected his wage-earning capacity and his compensation was properly 

reduced effective September 30, 2018.

Appellant appealed to the Board and, by decision dated November 5, 2020,7the Board 

affirmed OWCP’s March 29, 2019 decision.

On December 7, 2020 appellant, through counsel, requested modification of OWCP’s 

September 28, 2018 LWEC determination. He submitted an October 20, 2020 report from

Dr. Paul Fry, a Board-certified orthopedic surgeon serving as an OWCP referral physician, who 

advised that, during a September 22, 2020 physical examination, appellant had examination

findings of “a diminished cervical range of motion.” Dr. Fry noted that appellant’s clinical 

examination showed that all measurements of his cervical range of motion were symmetrical on 

the right and left. He indicated that range of motion measurements of the shoulders were optimal 

and symmetrical, and that bilateral upper extremity strength measurements were optimal at 5/5. 

Dr. Fry opined that appellant had residuals of his work injury resulting from cervical disc surgery 

and indicated that he was unable to perform the duties of his date-of-injury position as a federal

5

5 ECAB 376 (1953).

6

Id.

7

Supra note 4.
5

air marshal. He completed a Form OWCP-5c confirming appellant’s ability to work full time with 

restrictions, including lifting no more than 25 pounds intermittently.

In a January 13, 2021 report, Dr. Berman noted appellant’s subjective complaints of dull 

aching, throbbing, squeezing, and cramping, but noted that as to the head and neck he had “full 

range of motion, no abnormal findings.” He also indicated that appellant had no neurological 

abnormalities and that he had normal strength and flexion of the bilateral upper extremities. 

Dr. Berman advised that the musculature of appellant’s neck was noted to be of “normal strength 

and tone.” He indicated that he would refer appellant for x-ray testing to determine if there had 

been any changes in his cervical spine.

Appellant also submitted an x-ray report of his cervical spine, obtained on February 1, 

2021, which contained an impression of status post artificial disc replacement at C6-7 without 

evidence of dynamic instability, as well as mild straightening of cervical lordosis in neutral 

position.

By decision dated June 23, 2021, OWCP determined that appellant has not met his burden 

of proof to modify OWCP’s September 28, 2018 LWEC determination. It found that the evidence 

submitted by appellant on reconsideration did not show that his injury-related condition prevented 

him from working as an internal security manager.

LEGAL PRECEDENT

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

modification of compensation benefits.8 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 based on his or her 

LWEC.9 An employee’s actual earnings generally best reflect his or her wage-earning capacity.10 

Absent evidence that actual earnings do not fairly and reasonably represent the employee’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity.11

 But if actual earnings do not fairly and reasonably represent the employee’s 

wage-earning capacity or the employee has no actual earnings, then wage-earning capacity is 

determined with due regard to the nature of the injury, the degree of physical impairment, the 

employee’s usual employment, age, qualifications for other employment, the availability of 

suitable employment and other factors and circumstances that may affect wage-earning capacity 

in his disabled condition.12 

OWCP must initially determine the employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her vocational wage-earning capacity.13 

The medical evidence OWCP relies upon must provide a detailed description of the employee’s 

8

James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

9

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

10 Hayden C. Ross, 55 ECAB 455, 460 (2004).

11 Id.

12 5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13 M.A., 59 ECAB 624, 631 (2008).
6

condition and the evaluation must be reasonably current.14 Where suitability is to be determined 

based on a position not actually held, the selected position must accommodate the employee’s 

limitations from both injury-related and preexisting conditions, but not limitations attributable to 

post-injury or subsequently acquired conditions.15 

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 specialist for 

selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles

(DOT) or otherwise available in the open labor market that fits the employee’s capabilities with 

regard to his or her physical limitations, education, age and prior experience.16 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 or other applicable service. 17 Finally, 

application of the principles set forth in the Shadrick decision will result in the percentage of the 

employee’s LWEC.18

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless there is a material change in the nature and extent of 

the injury-related condition, the employee has been retrained or otherwise vocationally 

rehabilitated or the original determination was, in fact, erroneous.19 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.20

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify OWCP’s 

September 28, 2018 LWEC determination.

By decision dated November 5, 2020,21 the Board affirmed OWCP’s March 29, 2019

decision, finding the September 28, 2018 LWEC determination was proper. Findings made in 

14 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.4d (June 2013).

15N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 --Claims, Determining Wage-Earning 

Capacity Based on a Constructed Position, Chapter 2.816.4c (June 2013).

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b 

(February2011).

17 The job selected for determining wage-earning capacity must be a position that is reasonably available in the 

general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n.9 

(2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.6 (June 2013).

18 20 C.F.R. § 10.403(d); see also AlbertC. Shadrick,supranote 5.

19 C.R., Docket No. 14-111 (issued April4, 2014); SharonC. Clement, 55 ECAB 552 (2004).

20 See T.M., Docket No. 08-975 (issued February 6, 2009).

21 Supra note 4.
7

prior Board decisions are res judicata absent further review by OWCP under section 8128 of 

FECA.22

The Board finds that appellant has not shown that modification of the September 28, 2018 

LWEC determination is warranted by establishing that a spontaneous worsening of his injuryrelated condition after the issuance of the September 28, 2018 LWEC determination prevented 

him from working as an internal security manager.23 

Appellant submitted an October 20, 2020 report from Dr. Fry, an OWCP referral physician, 

who advised that, during a September 22, 2020 physical examination, appellant had examination 

findings of “a diminished cervical range of motion.” He further discussed appellant’s examination 

findings and opined that appellant had residuals of his work injury which prevented him from 

performing the duties of his date-of-injury position as a federal air marshal. Dr. Fry completed a 

Form OWCP-5c confirming appellant’s ability to work full time with restrictions, including lifting 

no more than 25 pounds intermittently. In a January 13, 2021 report, Dr. Berman noted appellant’s 

subjective complaints of dull aching, throbbing, squeezing, and cramping, but indicated that as to 

the head and neck he had “full range of motion, no abnormal findings.” He also noted that 

appellant had no neurological abnormalities and that he had normal strength and flexion of the 

bilateral upper extremities. Dr. Berman advised that the musculature of appellant’s neck was noted 

to be of “normal strength and tone.” Appellant also submitted an x-ray report of his cervical spine, 

obtained on February 1, 2021, which contained an impression of status post artificial disc 

replacement at C6-7 without evidence of dynamic instability, as well as mild straightening of 

cervical lordosis in neutral position.

The Board finds that the submitted reports of Dr. Fry and Dr. Berman, as well as the 

diagnostic testing report, are of no probative value in showing that a worsening of appellant’s 

injury-related condition prevented appellantfrom workingas an internal security manager, i.e., the 

position that served as the basis for the September 28, 2018 LWEC determination. These reports 

do not provide an opinion that appellant was unable to work as an internal security manager. 

Dr. Fry’s report contains restrictions that would allow him to work in the position. The Board has 

held that medical evidence that does not offer an opinion regarding a given medical matter, such 

as the inability to perform a given position, is of no probative value on that matter.

24

 Therefore, 

these reports are insufficient to establish appellant’s request for modification of the September 28, 

2018 LWEC determination.

The Board further finds that appellant has not shown that modification of the September 28, 

2018 LWEC determination is warranted by establishing that he was subsequently retrained or 

otherwise vocationally rehabilitated.25 Therefore, appellant has not met any of the three prongs of 

the standards for modifying an LWEC determination. 

22 C.D., Docket No. 19-1973 (issued May 21, 2020); B.W., Docket No. 17-0366 (issued June 7, 2017); ClintonE. 

Anthony, Jr., 49 ECAB 476 (1998).

23 Id.

24 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

25 See supra note 19.
8

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met his burden of proof to modify OWCP’s 

September 28, 2018 LWEC determination.

ORDER

IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board