United States Department of Labor

Employees’ Compensation Appeals Board

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S.B., Appellant

and

DEPARTMENT OF THE AIR FORCE, 566th

AIRCRAFT MAINTENANCE SQUADRON,

TINKER AIR FORCE BASE, OK, Employer

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Docket No. 23-0700

Issued: September 26, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 27, 2023 appellant filed a timely appeal from a March 9, 2023 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 March9, 2023decisionOWCP 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 compensation 

benefits, effective March 9, 2023, based on his capacity to earn wages in the constructed position 

of hotel clerk.

FACTUAL HISTORY

On March 21, 2014 appellant, then a 53-year-old aircraft mechanic,filed a traumatic injury 

claim (Form CA-1) alleging that on March 19, 2014 he injured his right elbow while installing a 

two rudder balance bay track, while in the performance of duty. OWCP accepted this claim for 

right lateral epicondylitis and right elbow and forearm sprain. 

On April 14, 2014 appellant filed anothertraumatic injury claim (Form CA-1) alleging that 

on April 4, 2014 he injured his left arm and shoulder while lifting a heavy air hose over a table 

with a coworker, while in the performance of duty. OWCP accepted this claim for left shoulder 

and upper arm sprain, left biceps tendon rupture, and left tenosynovitis of the hand and wrist. 3 

Appellant stopped work on April 4, 2014 and underwent left bicep tendon rupture surgery 

on that day. He underwent right elbow chronic lateral epicondylitis surgery on 

November 26, 2014. OWCP paid appellant intermittent wage-loss compensation on the 

supplemental rolls and on the periodic rolls effective March 3, 2019. 

In a November 16, 2018 report, Dr. Richard Ruffin, an orthopedic hand surgery specialist 

and treating physician, noted that appellant had residual abnormalities of the upper extremities and 

right elbow lateral epicondylitis, left wrist inflammation with prior surgical procedure with 

residualtendinitis, left elbow biceps tendon repair with lateral antebrachial cutaneous nerve injury,

and right wrist stiffness with contracture and ankylosis with no prior operation. He opined that 

the end result of the bilateral upper extremity conditions was significant grip weakness, 

inflammation and dysfunction, resulting in a profound inability to perform any work activities

consistent with aircraft mechanic or other repetitive motion and activity. Dr. Ruffin further opined 

that no further surgical treatment would be of benefit to appellant and that he needed permanent 

restrictions which included no repetitive activity with either upper extremity, no repetitive

handling or usage of power tools or vibrating tools, and a lifting limit of approximately 25 pounds. 

On March 22, 2021 appellant attended a second opinion examination with

Dr. Christopher S. Jordan, an orthopedic surgery specialist, to determine the nature and extent of 

the accepted work-related conditions, the extent of disability, and appropriate treatment.

Dr. Jordan noted appellant’s history of injury and medical treatment. He related appellant’s 

physical examination findings and diagnosed right and left lateral epicondylitis, left distal biceps 

tendon rupture, and median nerve neuropathy. Dr. Jordan explained that, while the work-related 

conditions had not resolved, appellant needed an electromyography (EMG) scan to accurately 

assess the residuals to determine whether further improvement was expected. He noted that 

appellant could not return to his date-of-injury position, however, appellant had reasonable grip 

3 The two claims were administratively combined by OWCP, with OWCP File No. xxxxxx344 serving as the master 

file. 
3

strength and any job that did not require fine motor control in his left hand would be manageable. 

Dr. Jordan advised that appellant was an excellent candidate for vocational rehabilitation. He 

completed a work capacity form, noting that appellant could work sedentary or light duty with no 

pushing, pulling, or lifting of over 30 pounds. 

In a September 20, 2021 addendum, Dr. Jordan noted that appellant did not wish to have 

an EMG, as it would be difficult for him. He again related that appellant could perform work on 

the medium work category, although he would have difficulty with fine motor control. 

On October 7, 2021 OWCP again referred appellant for a second opinion examination with

Dr. Jordan to determine the nature and extent of the accepted work-related conditions, the extent 

of disability, and appropriate treatment.

In a February 9, 2022 report, Dr. Jordan noted that, while he had related that appellant 

could perform medium work with a 30-pound lifting limit, appellant could not perform this type 

of work occasionally, but not for 8 hours. Appellant would be limited to light-duty work for eight 

hours of work per day.

On March 16, 2022 OWCP referred appellant for vocational rehabilitation services. 

Appellant participated in vocational rehabilitation from July 13 through 

November 4, 2022. In a report dated November 4, 2022, the vocational rehabilitation counselor 

assigned a plan for reemployment as a hotel clerk or customer-service clerk, according to the 

Department of Labor, Dictionary of Occupational Titles (DOT) #238.367-03, based upon 

appellant’s age, experience, education, medical restrictions from Dr. Jordan, and a labor market 

survey. Both positions were listed as light work. The vocational rehabilitation counselor 

conducted labor market research and documented that the positions of hotel clerk or customer 

service clerk were reasonably available within appellant’s commuting area and that the entry pay 

level for the hotel clerk position was $10.00 per hour, while the entry pay for the customer-clerk 

position was $15.00 to $17.00 per hour. 

In a letter dated June 29, 2022, OWCP advised appellant that the position of a customer 

service clerk, DOT#299.367-010, weekly wage of $498.00 or hotel clerk, DOT#238.367-038, 

weekly wage of $408.00, was suitable to his work restrictions. It informed him that he would

receive 90 days of placement assistance to help him locate work in these positions provided that 

he cooperated with such effort. OWCP further advised appellant that his wage-loss compensation 

benefits would be reduced based upon the salary of a customer service clerk or hotel clerk at the 

end of the 90-day placement assistance period. 

Following the 90-day placement assistance period, vocational rehabilitation services 

concluded on November 4, 2022. The vocational rehabilitation closure memorandum indicated 

that both selected positions remained vocationally suitable for appellant and reasonably available 

with his commuting area. 

By notice dated January 6, 2023, OWCP advised appellant that it proposed to reduce his 

wage-loss compensation on the basis that he was no longer totally disabled, but rather partially 

disabled, and that he had the capacity to work in the light-work constructed position as a hotel 

clerk, DOT No. 237.367-039, at the rate of $408.00 per week. It attached the job classification for 
4

hotel clerk and noted that the rehabilitation specialist documented that such positions were 

available in appellant’s commuting area and that the entry pay level for the position was $408.00 

per week. OWCP explained that the hotel clerk position was determined to be within appellant’s 

permanent work restrictions. It calculated that his compensation rate should be adjusted to 

$2,507.00 every four weeks using the Albert C. Shadrick formula.4 OWCP provided appellant 30 

days to submit additional evidence regarding his capacity to earn wages in the position described.

In a January 28, 2023 statement, appellant noted that he injured his right elbow on 

March 19, 2014 and that OWCP incorrectly stated that he sprained his right shoulder and upper 

arm, despite several calls to correct the error. He further noted that he sustained a second injury 

on April 10, 2014 to his left distal biceps tendon, and after surgery, he could not move his fingers 

or wrist. Appellant related that, after four months, he had a little feeling in his left forearm, just 

below the incision; however, he had another surgery to correct his left wrist from popping due to 

inactivity of the wrist because of paralysis. He explained that he was suffering psychologically 

because of the trauma from his injuries, loss of his career as an aircraft mechanic, loss of grip 

strength, and continued paralysis and numbness in his left hand and all five digits. 

By decision dated March 9, 2023, OWCP found that appellant was able to perform the 

constructed position of hotel clerk. It noted that the reports of Dr. Jordan, the second opinion 

physician, constituted the weight of the medical evidence. OWCP found that the vocational 

rehabilitation counselor had properly considered all appropriate factors and evidence and that the 

position of hotel clerk represented appellant’s loss of wage-earning capacity (LWEC). It 

determined that appellantwas capable of earning $408.00 per week and adjusted his compensation 

rate to a gross payment of $2,507.00 every four weeks effective that date using the Albert C. 

Shadrick formula.5

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 an 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

4

5 ECAB 376 (1953).

5

Id.

6

See E.B., Docket No. 22-1053 (issued April1-0, 2023); R.H., Docket No. 21-0145 (issued May 3, 2022); W.S., 

Docket No. 21-1118 (issued April 28, 2022); B.H., Docket No. 20-0729 (issued March 19, 2021).

7

Id.

8

5 U.S.C. § 8115(a).
5

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.9 

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.10

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

based on a reasonably current medical evaluation.12

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 postinjury or subsequently-acquired conditions. Any incapacity to perform the 

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

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

receive compensation.13

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 

of Commerce, employing establishment contacts, and actual job postings. 14 Lastly, OWCP applies 

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

10 Id.

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

12 Id.

13 Id.

14 C.M., supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, 

Chapter 2.813.19d (November 2011).
6

the principles set forth in Albert C. Shadrick,

15 as codified in section 10.403 of OWCP’s 

regulations,16 to determine the percentage of the employee’s LWEC.17

ANALYSIS

The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss 

compensation, effective March 9, 2023, based on his capacity to earn wages in the constructed 

position of hotel clerk.

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

constructed position of hotel clerk, as it was within the medical restrictions provided by Dr. Jordan, 

the second opinion physician. Dr. Jordan opined that appellant was permanently partially disabled 

as a result of the employment injuries and unable to return to his aircraft mechanic position.

However, he also provided permanent work restrictions and found that appellant was capable of 

performing sedentary and light-duty work. OWCP, therefore, referred appellant for vocational 

rehabilitation services, as the medical opinion evidence established that he was no longer totally 

disabled from work due to residuals of his accepted employment injuries.

18

 The vocational 

rehabilitation counselor determined that the light-duty position of hotel clerk was within 

appellant’s work restrictions as provided by Dr. Jordan and performed a labor market survey for

the position of hotel clerk, documenting that the position was reasonably available within 

appellant’s commuting area.

The Board finds that OWCP properly determined that appellant had the physical capacity 

to perform the duties of a hotel clerk, as this position was within the medical restrictions provided 

by Dr. Jordan. The Board, therefore, finds that the weight of the medical evidence establishes that 

appellant had the physical capacity to perform the duties of the selected position.19

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

not only physical limitations, but also work experience, age, mental capacity, and educational 

background.20 In this case, the rehabilitation counselor determined that the hotel clerk position 

was vocationally suitable for appellant and available in appellant’s commuting area.

15 Supra note 4.

16 20 C.F.R. § 10.403.

17 5 U.S.C. § 8115(a).

18 S.F., Docket No. 20-0869 (issued October 14, 2021); C.M., Docket No. 19-0360 (issued February 25, 2020).

19 Id.

20 Id.
7

As the vocational rehabilitation counselor is an expert in the field of vocational 

rehabilitation, OWCP may rely on their opinion in determining whether a job is vocationally 

suitable and reasonably available.21

The Board thus finds that OWCP properly determined that the constructed position of hotel

clerk reflected appellant’s wage-earning capacity.22

Appellant objected to the proposed reduction of his wage-loss compensation and argued 

that he should receive full compensation because he suffered psychologically from his work 

injuries. He did not, however, submit any medical evidence to substantiate his allegations that he 

was unable to work due to an emotional condition. 

The Board, therefore, 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 constructed position of hotel 

clerk.23 The Board further finds that OWCP properly applied the Shadrick formula, as codified in 

section 10.403 of its regulations,24 in determining appellant’s LWEC.

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

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss 

compensation, effective March 9, 2023, based on his capacity to earn wages in the constructed 

position of hotel clerk.

21 C.H., Docket No. 19-0136 (issued May 23, 2019); supra note 14 at Chapter 2.816.6(b) (June 2013).

22 Supra note 19.

23 S.F., supra note 18; T.B., Docket No. 17-1777 (issued January 16, 2019).

24 Supra note 16.
8

ORDER

IT IS HEREBY ORDERED THAT the March 9, 2023 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 26, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board