United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, VICKERY STATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-1204
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 3, 2021 appellant filed a timely appeal from a March 29, 2021 merit decision
and a July 27, 2021 nonmerit 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
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 27, 2021 decision, appellant submitted additional evidence to the Board.
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.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2021 appellant, then a 69-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral wrist pain due to factors of his federal
employment. He noted that an attached statement explained how his employment factors caused
his condition, however, no such statement was contained in the record. Appellant noted that he
first became aware of his claimed injury on December 16, 2021 and realized its relation to his
federal employment on January 26, 2021.3 On the reverse side of the claim form, his supervisor,
M.J., indicated that appellant’s work was modified so that he did not have to lift items over 10
pounds and that he was attending physical therapy daily. The employing establishment challenged
appellant’s claim because appellant did not submit any factual or medical documentation.
In a development letter dated February 5, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to respond.
A January 26, 2021 report from Dr. Juan Zamora, a Board-certified physician specializing
in family medicine, related appellant’s history of injury. Appellant awoke on December 16, 2020
with sharp pain in his left wrist and continued to experience frequent pain and discomfort
extending into his middle fingers. A similar pattern of pain started in his right wrist on
December 30, 2020. Appellant also began to experience right elbow pain on January 4, 2021.
Pain in each of these areas increased with activity. Dr. Zamora opined that appellant’s condition
was work related and recommended diagnostic testing. He diagnosed unspecified sprains of the
right elbow and both wrists.
On February 9, 2021 appellant responded to OWCP’s development questionnaire, noting
that he worked limited duty and retired from the employing establishment on February 1, 2021.
He indicated that his responses to OWCP’s remaining questions were contained in an attached
statement, however, no such statement is found in the record.
Appellant underwent bilateral wrist x-rays and a magnetic resonance imaging (MRI) scan
on February 10, 2021. The x-ray of his left wrist revealed severe triscaphe and mild
trapeziometacarpal osteoarthritis and a one millimeter ulnar positive variance indicating possible
ulnar impaction syndrome or triangular fibrocartilage complex (TFCC) tears. The x-ray of
appellant’s right wrist revealed severe triscaphe and mild radiocarpal and trapeziometacarpal
osteoarthritis. The MRI scan of his left wrist demonstrated tricompartmental wrist effusions,
chondromalacia within the lunate and distal ulna, which could relate to ulnar impaction syndrome
and/or osteoarthritis, severe triscaphe and mild-to-moderate trapeziometacarpal osteoarthritis,
3

A January 20, 2021 notice of separation indicated that appellant retired from the employing establishment on
January 31, 2021.

2

increased signal within the TFCC compatible with either a TFCC tear or TFCC degeneration, and
mild generalized extensor tenosynovitis. The MRI scan of appellant’s right wrist demonstrated
mild generalized extensor tenosynovitis with grade 1 strain of the extensor carpi ulnaris tendon,
tricompartmental wrist effusions, severe triscaphe and mild trapeziometacarpal osteoarthritis, and
increased signal within the TFCC indicative of either a TFCC tear or TFCC degeneration .
In a February 23, 2021 report, Dr. Zamora reviewed the February 10, 2021 x-ray and MRI
scans and diagnosed chondromalacia, osteoarthritis, and TFCC degeneration, possibly with tears.
He opined that appellant’s conditions were due to the natural wear and tear of the body but were
aggravated by his 42 years of work for the employing establishment. Dr. Zamora advised appellant
to begin a regimen of physical rehabilitation.
By decision dated March 29, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted factors of his federal employment.
Appellant subsequently submitted an undated statement responding to OWCP’s initial
development questionnaire. He described his employment activities, including daily sorting and
delivering of mail and parcels weighing up to 70 pounds and carrying up to 35 pounds of letters,
flats, and small parcels in a satchel carried on left shoulder such that weight was almost entirely
on his left shoulder and arm. Appellant noted that he had been under lifting restrictions at work
since July 2020 due to a left arm injury. He compensated for his left arm injury by doing more
work with his right arm. Appellant’s left wrist and hand pain began during the night on
December 16, 2020, and he reported it to his station manager, D.D, the next day. Similar pain
began in his right wrist on December 30, 2020 and in his right arm and elbow on January 4, 2021.
Appellant experienced greater pain and discomfort during periods of activity. He reported this
history to his manager, M.J., on January 13 and 15, 2020. Appellant’s activities outside of work
consisted mainly of listening to music and watching movies. He believed that his symptoms were
indicative of repetitive motion injuries due to the nature of his work for the employing
establishment.
OWCP received February 23, 2021 report from Dr. Zamora in which he again reviewed
the February 10, 2021 x-rays and MRI scans and diagnosed chondromalacia, osteoarthritis, and
TFCC degeneration, possibly with tears. Dr. Zamora opined that appellant’s conditions were due
to the natural wear and tear of the body but were aggravated by his 42 years of work at the
employing establishment. Specifically, he explained that appellant’s work duties, including
carrying and handling heavy loads, sorting and casing mail, repetitively twisting at the wrist to
open mailboxes, and repetitively locking and unlocking his work vehicle throughout the day,
aggravated his conditions. Dr. Zamora advised that appellant begin a regimen of physical
rehabilitation.
On April 28, 2021 appellant requested reconsideration. In support of his request, he
submitted an April 27, 2021 statement, in which he contended that his more than 42 years of
service to the employing establishment, including a great deal of overtime, directly contributed to
his diagnosed conditions. Appellant noted that, as a result of a previously accepted left arm injury,
assigned OWCP File No. xxxxxx014, he had been restricted to eight hours of work per day during
the latter half of 2020. Finally, he argued that the medical documentation proved causal

3

relationship between his diagnosed medical conditions and the accepted factors of his federal
employment.
By decision dated July 27, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 8
Causal relationship is a medical question that requires rationalized medical opin ion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

4

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In his January 26, 2021 report, Dr. Zamora diagnosed unspecified sprains of the right
elbow and both wrists and opined that appellant’s condition was work related. Similarly, in a
February 23, 2021 report, he diagnosed chondromalacia, osteoarthritis, and TFCC degeneration,
possibly with tears, and opined that appellant’s conditions were due to the natural wear and tear of
the body, but were aggravated by appellant’s 42 years of work for the employing establishment.
While he provided an affirmative opinion suggestive of causal relationship, Dr. Zamora did not
offer medical rationale sufficient to explain why he believes appellant’s employment duties could
have resulted in or contributed to his diagnosed conditions. Without identifying specific
employment duties or explaining how they caused or aggravated app ellant’s conditions,
Dr. Zamora’s letter is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
In a separate February 23, 2021 report, Dr. Zamora repeated the above diagnoses and again
opined that appellant’s conditions were due to the natural wear and tear of the body , but were
aggravated by appellant’s 42 years of work for the employing establishment. Specifically, he
explained that appellant’s work duties, including carrying and handling heavy loads, sortin g and
casing mail, repetitively twisting at the wrist to open mailboxes, and repetitively locking and
unlocking his work vehicle throughout the day, aggravated his conditions. However, Dr. Zamora
did not explain how any of these described employment activities caused appellant’s diagnosed
chondromalacia, osteoarthritis, and TFCC degeneration. To be of probative medical value, a
medical opinion must explain how, physiologically, the movements involved in the employment
activities caused or contributed to the diagnosed conditions. 13 As such, Dr. Zamora’s report is
insufficient to establish appellant’s claim.
The remaining medical evidence consisted of bilateral x-ray and MRI scans of appellant’s
wrists. The Board has held, however, that diagnostic testing reports, standing alone, lack probative
value on the issue of causal relationship as they do not address the relationship between the
accepted employment factors and a diagnosed condition. 14 For this reason, this evidence is also
insufficient to meet appellant’s burden of proof.

11

Id.; Victor J. Woodhams, supra note 8.

12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

A.W., Docket No. 19-0327 (issued July 19, 2019); M.D., Docket No. 18-0195 (issued September 13, 2018);
Jimmie H. Duckett, 52 ECAB 332 (2001).
14

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5

As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof. 15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought. 18 If it chooses to grant reconsideration, it reopens and
reviews the case on its merits. 19 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 20

15

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
16

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see L.D., id; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
19

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

20

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Appellant also did not submit relevant and pertinent new evidence in support of his
reconsideration request. The underlying issue on reconsideration is whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted factors of his
federal employment. This is a medical issue which is addressed by relevant medical evidence not
previously considered. 22
With his request for reconsideration, appellant submitted an undated response to OWCP’s
initial development questionnaire, a February 23, 2021 medical report from Dr. Zamora, and an
April 27, 2021 statement contending that his conditions were causally related to the accepted
factors of his federal employment. The undated questionnaire response and the April 27, 2021
statement do not constitute relevant and pertinent new evidence as they are not medical evidence.
Further, Dr. Zamora’s separate February 23, 2021 medical report substantially replicates a
previously considered report of even date. The only addition in the later-submitted report was a
list of employment activities that he believed aggravated appellant’s medical conditions.
Dr. Zamora’s did not, however, offer an explanation of the causal relationship between those
activities and the diagnosed conditions. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case. 23
As such, appellant is not entitled to further review of the merits of his claim based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment. The Board further
21

C.B., Docket No. 18-1108 (issued January 22, 2019).

22

Y.L., Docket No. 20-1025 (issued November 25, 2020).

23

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper; 31 ECAB 224, 225 (1979).
24

Supra note 16.

25

J.B., supra note 20; D.G., Docket No. 19-1348 (issued December 2, 2019).

7

finds that OWCP properly denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29 and July 27, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed. 26
Issued: March 11, 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

26

Upon return of the case record, OWCP may consider administratively combining the current claim file with
OWCP File No. xxxxxx014.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DALLAS/FORT WORTH
INTERNATIONAL AIRPORT, Coppell, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 11-360
Issued: October 25, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 3, 20101 appellant, through his representative, filed a timely appeal of a
May 10, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on May 10, 2010, the 180-day computation begins May 11, 2010. 180 days from May 11, 2010
was November 8, 2010. Since using November 30, 2010, the date the appeal was received by the Clerk of the
Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is November 3, 2010, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation effective
August 5, 2007 based on his capacity to earn wages in the constructed position of customer
service representative; and (2) whether appellant has met his burden of proof in modifying the
wage-earning capacity determination.
FACTUAL HISTORY
On May 27, 2004 appellant then a 32-year-old transportation security screener, filed a
traumatic injury alleging that on April 23, 2004 he developed lower back and left leg pains while
lifting and bending in the performance of duty. OWCP accepted his claim for lumbar strain and
herniated disc at L5-S1. Dr. Paul A. Vaughan, a Board-certified orthopedic surgeon, performed
a two-level laminectomy at L4-5 and L5-S1 and bilateral discectomy at L5-S1 on April 4, 2005.
On August 22, 2005 appellant underwent a revision microsurgical laminotomy and discectomy at
L4-5.
Appellant’s attending physician, Dr. Bryan S. Drazner, a physician Board-certified in
physical medicine and rehabilitation, completed a report on January 9, 2008 and stated that
appellant was capable of full-time gainful employment. He stated that appellant had obvious
disability posturing and symptom magnification as well as a rather significant discord between
objective findings and subjective complaints. Dr. Drazner stated that a functional capacity
evaluation demonstrated that appellant could perform medium physical demand work,
cooperating with lengthy periods of sitting, standing and walking as well as crawling, crouching,
kneeling, overhead reaching and fine motor skills. He stated that appellant was more limited on
climbing, squatting, bending and stooping. Dr. Drazner stated that appellant could lift and carry
48 pounds.
On January 13, 2006 OWCP referred appellant for vocational rehabilitation services.
Dr. Drazner completed duty status reports on January 9, February 6 and March 6, 2006 and
indicated that appellant could lift 20 pounds intermittently for eight hours a day and 5 pounds
continuously. He indicated that appellant could sit for 30 minutes continuously and 6 to 8 hours
intermittently; could stand continuously for 90 minutes and intermittently for 4 to 6 hours as well
as walking for 2 to 3 hours intermittently. Appellant could not climb, bend or stoop and could
kneel for one hour a day. He could twist intermittently for one or two hours and could pull and
push 25 pounds intermittently for 2 to 4 hours.
In a letter dated March 15, 2006, OWCP approved a prevocational training plan as a
computer operator/bookkeeper. Dr. Drazner expanded appellant’s restrictions on April 3, 2006
to include no overhead lifting over 20 pounds. Appellant enrolled in Eastfield College for
training in computer operations/bookkeeping beginning June 5, 2006. In a report dated
November 5, 2006, the vocational rehabilitation counselor indicated that appellant was not
performing well academically and dropping classes. She opined that a different career path
would be appropriate. Appellant stated that he wanted to go to truck driving school. The
vocational rehabilitation counselor informed him that truck driving would not be in keeping with
his sitting restriction and he indicated that he would discuss his abilities with Dr. Drazner.

2

In a report dated November 13, 2006, Dr. Drazner stated that appellant reported
difficulties with his computer certificate training and mentioned his desire to obtain his
commercial drivers license. He stated, “I have advised [appellant] due to regulations of the
Department of Transportation, he would not be eligible to utilize narcotic analgesic medication
and continue driving.” Dr. Drazner noted that appellant utilized hydrocodone two to three times
a day.
Dr. Wendy E. Goodwin, a physician Board-certified in physical medicine and
rehabilitation, and Dr. Drazner’s associate, examined appellant on December 15, 2006 and
diagnosed degenerative disc disease with multiple levels of lumbar spine involvement and
chronic back pain with long-term use of relatively high-dose narcotics. She did not alter
appellant’s work restrictions. Dr. Goodwin examined appellant on December 29, 2006 and noted
his report of depression which he stated was chronic since his injury. Appellant stated that he
had thoughts of hurting people all the time. Dr. Goodwin stated, “I do feel that [appellant] is
depressed and this is at least partly due to his disability secondary to his back pain.” She
maintained his work restrictions.
Appellant decided not to undergo further training and attend school full time. OWCP
stated that further training would not be approved and that his placement should be based on
transferable skills and medical restrictions.
In a report dated January 12, 2007, Dr. Goodwin stated that appellant reported thoughts
of hurting people. She noted that he felt that he was not mentally stable enough to be in school
full time, but when at home sat in his computer chair. Dr. Goodwin noted that appellant was
emotionally liable becoming angry and aggressive. She stated that he was advised to seek any
further medical care from the emergency room and was discharged from the practice.
The vocational rehabilitation counselor identified two positions as within appellant’s
physical restrictions and vocational training, security officer and customer service representative.
She stated that customer service representative positions were performed in sufficient numbers,
that physical demands were in the sedentary level of lifting up to 10 pounds, that appellant’s
seven years experience in dealing with the public while working as a security guard met the
specific vocational preparation of five to six months. The vocational rehabilitation counselor
listed the weekly wages as $386.00.
Appellant requested a change of physicians on February 19, 2007. The vocational
rehabilitation counselor provided appellant with job leads through April 29, 2007.
In a report dated May 10, 2007, appellant’s attending physician, Dr. Robert Chouteau, an
osteopath, noted appellant’s history of injury and resulting surgeries. He diagnosed traumatic
lumbar myositis, bilateral sacroiliac joint lumbar syndrome and failed back syndrome.
Dr. Chouteau stated that appellant was functioning at the light capacity, lifting 20 pounds. He
noted that appellant had difficulty sitting for long periods which caused pain pattern to the
lumbosacral region. Appellant also had problems bending, twisting and sitting for up to five
minutes with repetitive motion. Dr. Chouteau examined appellant on June 7, 2007 and stated
that he was still experiencing severe depression and anxiety with difficulty sleeping. He
recommended pain management.

3

In a letter dated June 25, 2007, OWCP proposed to reduce appellant’s compensation
benefits based on his capacity to earn wages as a customer service representative.
Dr. Chouteau examined appellant on July 11, 2007 following a June 29, 2007 magnetic
resonance imaging (MRI) scan, which did not demonstrate any change in his condition as
appellant continued to have a two millimeter (mm) disc bulge at L4-5 and L5-S1. He stated that
appellant was temporarily totally disabled.
By decision dated July 25, 2007, OWCP reduced appellant’s compensation benefits
based on his capacity to earn wages as a customer service clerk effective August 5, 2007. It
found that this position was medically and vocationally suitable and fairly and reasonably
represented his wage-earning capacity. OWCP found that appellant was capable of earning
$386.00 per week and that his current pay rate for the date-of-injury position was $650.76
resulting in 59 percent wage-earning capacity.
Dr. Chouteau examined appellant on August 8, 2007 and reviewed his May 3, 2007
functional capacity evaluation noting that appellant could function at a light 20 pounds physical
demand level. He opined that appellant was temporarily totally disabled.
Appellant requested a telephonic hearing on August 23, 2007. He submitted a report
from Dr. Chouteau dated September 4, 2007, finding that he was temporarily totally disabled.
Appellant returned to part-time work on October 3, 2007 performing maintenance for Aircraft
Composte, Inc.
On February 5, 2008 Dr. Steven L Wilson, an associate of Dr. Chouteau, examined
appellant and found that he had increasingly progressive problems in his lower back. He stated,
“He is encouraged to maintain his work activities at a reasonable pace.” In a note dated
February 21, 2008, Dr. Wilson stated that appellant was currently employed as maintenance
personnel working a 40-hour shift, 8 hours a day.
Appellant began a chronic pain management program as directed by Dr. Matt Sloan, a
Board-certified anesthesiologist, with Dr. C.M. Schade, a physician Board-certified in pain
management. He underwent a functional capacity evaluation on September 23, 2008, which
found that appellant could sit and stand 30 minutes each in an 8-hour workday. The report
further stated that appellant could sit for 30 minutes and stand for 15 minutes at a time without
needing to change positions. Appellant could lie down for eight hours a day. He could not
crawl, climb crouch or kneel and only occasionally bend, squat, reach up and stoop. Appellant’s
maximum weight for lifting was 20 pounds. His limitations were due to pain to the right leg and
lower back. Dr. Schade recommended an additional six weeks of treatment for chronic pain on
November 13, 2008. She requested an additional six weeks of pain management on
January 8, 2009.
Dr. Robert J. Henderson, a Board-certified orthopedic surgeon, completed a report on
April 6, 2009 diagnosing spondylosis, discogenic pain L4-5, L5-S1 with right leg radiculopathy.
He stated that appellant was a potential candidate for surgery and recommended a two-level 360
at L4-5 and L5-S1.

4

Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, examined appellant on
April 10, 2009 and noted that appellant had consulted with Dr. Henderson on April 3, 2009 and
Dr. Henderson’s recommendation of a 360 fusion surgery of the back. He stated that appellant
was unable to sit for prolonged periods. On May 18, 2009 Dr. Shade stated that appellant was
off work under workers’ compensation since 2008 through Dr. Schade. He again noted that
appellant was unable to sit for prolonged periods. In a note dated August 19, 2009, Dr. Shade
diagnosed lumbar strain, chronic with bilateral lower extremity radiculopathy, failed back and
depression.
Appellant testified at the oral hearing on August 28, 2009. He stated that he was unable
to perform the assigned vocational rehabilitation plan as he could only sit from 20 to 30 minutes.
Appellant stated that he worked part-time light duty for Aircraft Composite from fall 2007 for
six or seven months. He had no employment since 2008.
Following the oral hearing, appellant submitted a note from Dr. Shade dated
September 23, 2009, which opined that appellant was unable to sit for prolonged periods. He
also submitted documentation regarding his psychological condition from a licensed professional
counselor.
By decision dated October 23, 2009, the hearing representative found that the wageearning capacity determination was appropriate.
Appellant requested reconsideration on February 9, 2010. His representative argued that
OWCP had failed to consider a change in appellant’s condition, the diagnosis of depression as
stated by Dr. Chouteau, OWCP failed to provide Dr. Chouteau with the constructed position
description and failed to discuss the effect of appellant’s failure to complete vocational
rehabilitation training. Appellant resubmitted a report dated June 7, 2007 from Dr. Chouteau and
a report from Dr. Shade repeating his previous findings and conclusions in a note dated
January 15, 2010.
By decision dated May 10, 2010, OWCP found that appellant had not established that the
July 25, 2007 decision should be modified.3
LEGAL PRECEDENT -- ISSUE 1
Section 8115 of FECA4 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or the
employee has no actual earnings, his wage-earning capacity is determined with due regard to the
nature of his injury, the degree of physical impairment, his usual employment, his age, his

3

The Board notes that OWCP issued a decision dated October 26, 2010 finding that appellant’s compensation
benefits should be suspended until he completed a report of earnings. As appellant’s representative did not request
review of this decision, the Board will not review this decision of OWCP in this appeal.
4

5 U.S.C. §§ 8101-8193, 8115.

5

qualifications for other employment, the availability of suitable employment and other factors or
circumstances which may affect his wage-earning capacity in his disabled condition.5
When OWCP makes a medical 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 Department of Labor’s Dictionary of Occupational
Titles or otherwise available in the open market, that fits that employee’s capabilities with regard to
his 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 or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick6 will result in the percentage of the employee’s loss of
wage-earning capacity. The basic rage of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay.7
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.8 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.9 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbar strain and herniated disc at L5-S1.
Appellant underwent two spinal surgeries. The employing establishment was unable to provide
an appropriate limited-duty position for him and he underwent vocational rehabilitation.
Appellant was unable to obtain employment. On July 25, 2007 OWCP issued a wage-earning
capacity determination based on the constructed position of customer service clerk effective
August 5, 2007. It determined that this position was medically and vocationally suitable for
appellant. OWCP found that appellant was capable of earning $386.00 per week and he had 59
percent wage-earning capacity. Appellant disagreed with this decision and alleged that the
position was neither vocationally or medically suitable.
Appellant’s attending physician, Dr. Drazner listed appellant’s work abilities as lifting 20
pounds intermittently for eight hours a day and 5 pounds continuously. He indicated that
5

N.J., 59 ECAB 171, 175 (2007).

6

5 ECAB 376 (1953).

7

Karen L. Lonon-Jones, 50 ECAB (1999).

8

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
9

K.R., supra note id.; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186,
190 (1975).
10

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

6

appellant could sit for 30 minutes continuously and six to eight hours intermittently; could stand
continuously for 90 minutes and intermittently for four to six hours as well as walking for two to
three hours intermittently. Dr. Drazner found that appellant could not climb, bend or stoop and
could kneel for only one hour a day. He stated that appellant could twist intermittently for one or
two hours and could pull and push 25 pounds intermittently for two to four hours. Dr. Drazner
and his associate Dr. Goodwin supported these restrictions through December 15, 2006.
Following the dissolution of appellant’s relationship with Dr. Drazner, appellant’s
physician, Dr. Chouteau, found on May 10, 2007 that appellant was functioning at the light
capacity, lifting 20 pounds. He noted that appellant had difficulty sitting for long periods and
problems bending, twisting and sitting for up to five minutes with repetitive motion.
Dr. Chouteau examined appellant on June 7, 2007 and stated that he was still experiencing
severe depression and anxiety with difficulty sleeping. On July 11, 2007 he reviewed appellant’s
June 29, 2007 MRI scan and noted that appellant continued to have a two mm disc bulge at L4-5
and L5-S1. Dr. Chouteau stated that appellant was temporarily totally disabled. He did not
explain how appellant’s condition had changed and did not offer any explanation for his opinion
that appellant was totally disabled.
The vocational rehabilitation counselor identified the position of customer service
representative as within appellant’s physical and vocational abilities. She concluded that
customer service representative positions were performed in sufficient numbers in appellant’s
commuting area to make the position reasonably available. The vocational rehabilitation
counselor noted that the physical demands of the position were in the sedentary level of lifting up
to 10 pounds which was within his work restrictions. She further found that appellant’s seven
years experience in dealing with the public while working as a security guard met the specific
vocational preparation of five to six months. The vocational rehabilitation counselor listed the
weekly wages as $386.00.
The Board finds that the July 25, 2007 wage-earning capacity was determined with due
regard to the nature of appellant’s injury, the degree of physical impairment, his usual
employment, his age, his qualifications for other employment and the availability of suitable
employment. The medical evidence from Dr. Drazner as well as that initially received from
Dr. Chouteau supported that appellant was capable of sedentary work. The Board notes that
Dr. Chouteau did not explain why or how he felt that appellant’s condition had worsened between
June 7 and July 11, 2007 such that he was no longer capable of performing any work. Without
some medical explanation of the changes in appellant’s condition, the Board finds that the July 11,
2007 note is not sufficient to established that the constructed position was not without his physical
abilities. A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.11 The opinion of the physician must be based on a complete
factual and medical background of the claim, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the opinion offered.12 As Dr. Chouteau did not
provide any medical reasoning in support of his conclusion that appellant was temporarily totally
disabled and due to this deficiency this report is of limited probative value.
11

T.F., 58 ECAB 128 (2006).

12

A.D., 58 ECAB 149 (2006).

7

The Board further finds that the record establishes that appellant met the specific vocational
requirements of the position of customer service representative through his prior employment
working with the public as a security guard. In addition, the Board notes that the vocational
rehabilitation counselor found that the position was reasonable available in appellant’s commuting
area.
Before the hearing representative, appellant argued that he was not capable of performing
the constructed position of customer service representative as he could not sit for more than 30
minutes. He submitted additional medical reports from Dr. Chouteau dated August 8 and
September 4, 2007 stating that appellant was totally disabled. However, Dr. Chouteau reviewed
appellant’s May 3, 2007 functional capacity evaluation and stated that appellant could function at
a light 20 pounds physical demand level. The Board is again unable to determine why and how
Dr. Chouteau reached the conclusion that appellant was totally disabled.
On February 5 and 21 2008 Dr. Wilson examined appellant and found that he had
increasingly progressive problems in his lower back. However, he stated that appellant was
currently employed as maintenance personnel working a 40-hour shift 8 hours a day. Appellant
also underwent an additional functional capacity evaluation dated September 23, 2008 found that
he could only sit and stand for 30 minutes a day during an 8-hour workday and that he could sit
for 30 minutes and stand for 15 minutes without needing to change positions. He was unable to
crawl, climb crouch or knee and only occasionally bend, squat, reach up and stoop. Appellant
was limited to lifting 20 pounds. Dr. Shade completed reports on April 10, May 18 and
August 19, 2009 and stated that appellant was unable to sit for prolonged periods. Due to
appellant’s employment in the private sector as a maintenance employee, the Board is unable to
conclude his increased work restrictions and described in the functional capacity evaluation and
reports from Drs. Wilson and Shade are due to the original injury rather than related to his new
employment. Without a complete and accurate history and opinion regarding the relationship of
appellant’s current condition to his accepted employment injury, these reports are not sufficient
to establish that the wage-earning determination issued on July 25, 2007 was in error.
Appellant also submitted medical evidence from Drs. Henderson and Shade diagnosing
spondylosis, discogenic pain L4-5, L5-S1 with right leg radiculopathy and recommending a
two-level 360 at L4-5 and L5-S1. Dr. Shade also opined that appellant was unable to sit for
prolonged periods. As noted above, these reports do not provide a complete history of injury
including appellant’s private sector employment and offer a detailed statement that his current
condition was rendered him incapable of performing the selected position. As these reports do
not contain the necessary factual basis and medical reasoning, the reports are not sufficient to
establish that the July 25, 2007 wage-earning capacity determination was erroneous.
LEGAL PRECEDENT -- ISSUE 2
Modification of a standing wage-earning capacity 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
erroneous.13 OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity
13

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

8

decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.14 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.15
ANALYSIS -- ISSUE 2
Following the hearing representative’s October 23, 2009 decision finding that, the
July 25, 2007 wage-earning capacity determination was appropriate, appellant requested
reconsideration. Appellant’s representative argued that appellant had sustained a material
change in the nature and extent of his injury-related condition as he had developed depression.
His representative also argued that OWCP failed to provide Dr. Chouteau with the constructed
position description and failed to discuss the effect of appellant’s failure to complete vocational
rehabilitation training. By decision dated May 10, 2010, OWCP reviewed the merits of
appellant’s claim and found that he had not established that the July 25, 2007 decision should be
modified.
In support of his request for reconsideration, appellant alleged that the original wageearning capacity determination was in error as Dr. Chouteau had not reviewed the position
description for the constructed position and as OWCP failed to discuss the implications of
appellant’s failure to complete vocational rehabilitation training. The Board finds that appellant
has not established that the original decision was in error. While OWCP did not provide
Dr. Chouteau with the physical requirements of the selected position, he initially supported
appellant’s ability to perform light-duty work and returned to this conclusion after OWCP issued
the wage-earning capacity determination. As noted above, it was only for a brief period of time
from July to August that Dr. Chouteau indicated that appellant was totally disabled and he did
not provide medical reasoning supporting his change in work restrictions. Furthermore,
appellant returned to light-duty work on October 3, 2007. As Dr. Chouteau did not provide any
support medical reasoning or physical findings as the basis for his opinion, the Board finds that
appellant has not established that the original wage-earning capacity determination was in error.
Appellant has also alleged a change in the nature and extent of his injury-related
condition asserting that he developed depression as a result of his accepted employment injury
and that this condition preventing him from performing the selected position. Drs. Drazner and
Goodwin initially diagnosed appellant with depression in December 29, 2006. These physicians
did not alter appellant’s work restrictions or otherwise indicate any disability associated with this
condition. Dr. Chouteau examined appellant on June 7, 2007 and included a diagnosis of
depression. At this time he continued to support appellant’s ability to work with restrictions.
Appellant’s diagnosis of depression does not represent a material change in his injury-related
condition not considered by OWCP. At the time of the original wage-earning capacity
determination, he had received this diagnosis and his treating physicians did not find this
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See also FECA Transmittal 10-01 (issued October 5, 2009).
15

Selden H. Swartz, 55 ECAB 272, 278 (2004).

9

condition disabling. The Board finds that appellant has not submitted the necessary medical
evidence to establish that this condition is causally related to his accepted employment injury and
constitutes a material change in the nature and extent of his injury-related condition.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation benefits based
on his capacity to earn wages as a customer service representative. The Board further finds that
he has not met his burden of proof to modify the July 25, 2007 wage-earning capacity
determination.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, N. Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-152
Issued: April 2, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 4, 2007, denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has established a permanent impairment to a scheduled
member of the body under 5 U.S.C. § 8107.
FACTUAL HISTORY
On July 31, 2001 appellant, then a 43-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries in the performance of duty on
July 21, 2001. Appellant stated that he tackled a suicidal patient and sustained injuries to his
back, knees and arms. On November 20, 2001 the Office advised appellant that the claim was
accepted for bilateral elbow and knee abrasions, and a lumbar strain.

Appellant returned to work and continued to receive treatment from Dr. Rueben Weisz, a
neurologist. In a report dated June 3, 2003, Dr. Weisz reported that appellant had severe low
back pain. The record also contains an October 28, 1986 report from Dr. Peter Slabaugh, noting
appellant had a 1979 back injury while in the military and currently had lumbosacral back pain.
In a January 5, 2004 report, Dr. Weisz noted that appellant continued to have lumbar and
cervical symptoms.
The Office referred appellant for a second opinion examination by Dr. Julie Wehner, an
orthopedic surgeon. The statement of accepted facts noted that appellant reported low back pain
following a March 19, 2003 incident outside of work. In a report dated March 26, 2004,
Dr. Wehner opined that appellant’s lumbar sprain had resoled.
On September 15, 2006 appellant filed a claim for compensation (Form CA-7) and
indicated that he was requesting a schedule award. Dr. Weisz submitted a form report dated
March 12, 2007 stating that maximum medical improvement was “not achieved” and indicating
appellant had moderate-to-severe pain. In a May 8, 2007 report, an Office medical adviser stated
that a permanent impairment rating could not be performed as appellant had not reached
maximum medical improvement.1 The Office advised appellant by letter dated May 21, 2007
that no action would be taken on the schedule award until maximum medical improvement was
reached.
Appellant submitted additional reports from Dr. Weisz dated April 14 and October 25,
2006 and March 12 and June 6, 2007. In the June 6, 2007 report, Dr. Weisz stated that appellant
continued essentially unchanged neurologically, with the same cervical and lumbar symptoms.
He provided results on examination and noted limited range of motion of the lumbar and cervical
spine. Dr. Weisz opined that appellant had reached maximum medical improvement for the
back.
In a report dated June 30, 2007, the Office medical adviser noted that the reports from
Dr. Weisz generally reported an unchanged motor examination with no pathology described.
The medical adviser stated that there was no clear involvement of the lower extremities, with no
evidence of pain or sensory deficit in a dermatomal pattern that could be used as a permanent
impairment calculation. The Office medical adviser concluded that, without detailed information
describing a leg impairment, no permanent impairment rating could be performed at this time.
By decision dated October 4, 2007, the Office determined that appellant was not entitled
to a schedule award under 5 U.S.C. § 8107.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the

1

In a May 4, 2007 letter to the Office medical adviser, the Office indicated “thoracic or lumbosacral neuritis or
radiculitis” was an accepted condition.

2

permanent impairment of the scheduled member or function.2 The permanent impairment must
be causally related to an accepted employment injury.3 Neither the Federal Employees’
Compensation Act nor the regulations specify the manner in which the percentage of impairment
for a schedule award shall be determined. For consistent results and to ensure equal justice for
all claimants, the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.4
ANALYSIS
Appellant seeks a schedule award under 5 U.S.C. § 8107 for a permanent impairment.
He did not identify the specific scheduled member or function under the Act. The Board notes
that neither the Act nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole. Furthermore, the back is specifically excluded from the definition of
“organ” under the Act.5
The medical evidence from Dr. Weisz is not sufficient to establish entitlement to a
schedule award under the Act. As noted above, any permanent impairment must be causally
related to the accepted employment injuries. Dr. Weisz refers to continuing lumbar and cervical
symptoms, without discussing how any findings are related to the July 21, 2001 employment
injury. Moreover, the medical evidence necessary to support a schedule award requires a
physician’s report that provides a detailed description of the impairment.6 The Office medical
adviser noted that Dr. Weisz did not provide a detailed description of an impairment to a
scheduled member. Dr. Weisz refers to an essentially unchanged neurological examination with
cervical and lumbar pain, without providing an opinion as to a permanent impairment or
providing a detailed description of impairment that would allow an Office medical adviser to
apply the A.M.A., Guides. The Board accordingly finds that the Office properly determined
appellant was not entitled to a schedule award in this case.
CONCLUSION
The evidence of record is not sufficient to establish entitlement to a schedule award under
5 U.S.C. § 8107.

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

Rosa Whitfield Swain, 38 ECAB 368 (1987).

4

A. George Lampo, 45 ECAB 441 (1994).

5

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

6

James E. Jenkins, supra note 5; Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.6(c) (August 2002).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2007 is affirmed.
Issued: April 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, San Diego, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Sally F. La Macchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1225
Issued: November 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 19, 2007 reducing his compensation.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
July 11, 2004 based on its determination that the constructed position of security guard
represented his wage-earning capacity.
FACTUAL HISTORY
On March 22, 2001 appellant, a 57-year-old meat wrapper, filed an occupational injury
claim alleging that he injured his back as a result of employment activities. His claim was
accepted for right-sided disc herniation at L4-5, with associated moderate stenosis. On

January 25, 2002 appellant underwent a lumbar laminectomy and discectomy. He was placed on
the periodic rolls.
Appellant submitted a May 14, 2003 report from his treating physician, Dr. Larry D.
Dodge, a Board-certified orthopedic surgeon. Physical examination revealed that appellant’s
active, voluntary range of motion of the thoralumbar spine was limited: he was able to forward
flex to approximately 45 degrees and extend to 10 degrees before experiencing low back pain;
lateral bend was limited to 15 degrees in either direction; and straight leg raising was slightly
positive on the right and negative on the left. The motor examination of the feet was normal in
all major muscle groups of the lower extremities. Sensory examination was normal to light
touch. Quadriceps reflexes were 1-2+ and symmetrical. Achilles reflexes were 0-1+ and
symmetrical. There were no pathologic reflexes evident. Hip range of motion was full
bilaterally, with no groin or thigh pain experienced. Dr. Dodge noted that a May 6, 2003
magnetic resonance imaging (MRI) scan showed some foraminal narrowing at the L5 roots, but
no evidence of any recurrent herniation at L4-5. He opined that appellant was a candidate for
vocational rehabilitation and that he could work with restrictions that precluded heavy lifting and
repetitive bending and stooping.
In a May 19, 2003 work capacity evaluation, Dr. Dodge opined that appellant was able to
return to work full time with restrictions. He stated that appellant should not walk or stand for
more than 5 hours at a time; should not push or pull more than 30 pounds; should not lift more
than 20 pounds; and should not squat or kneel for more than 15 minutes at a time. In a June 23,
2003 attending physician’s report, Dr. Dodge indicated that appellant was able to resume light
work as of March 14, 2003, provided that he was restricted from prolonged standing or lifting;
from lifting more than 20 pounds; or from repeated bending.
On June 20, 2003 appellant was referred for vocational rehabilitation. In a vocational
rehabilitation report dated August 29, 2003, Laura Lutz Dillard, appellant’s rehabilitation
counselor, stated that he had no interest in a lengthy training program. She indicated that the
position of security guard had been identified and agreed upon, as an area of interest, given the
facts that appellant had served as a security guard for four years previously and had enjoyed the
position. Ms. Dillard stated that she had reviewed the results of appellant’s vocational testing
with him and that a labor market survey had been conducted.
By letter dated September 23, 2003, Ms. Dillard asked Dr. Dodge to analyze two security
guard position descriptions forwarded to him, for the purpose of determining appellant’s ability
to perform the duties of the positions. The security guard position in the Department of Labor’s,
Dictionary of Occupational Titles (DOT), No. 372.667-030, required an employee to be posted
at the front gate of a building. Duties included maintaining gate security; maintaining a visitor
log; arming and disarming plant alarm systems; checking the security of side buildings; traffic
control and emergency notification. The position required an employee to sit 60 percent of the
time; stand 20 percent of the time and walk 20 percent of the time. The position was described
as light duty, which was defined as “exerting up to 20 pounds of force occasionally and/or up to
10 pounds of force frequently and/or a negligible amount of force constantly to move objects
around.” The position also required frequent lifting up to 25 pounds; occasional bending and
stooping; occasional reaching; occasional handling and fingering; occasional carrying; and
twisting and turning. Security guard position, DOT No. 372.667-034, required an employee to

2

guard an industrial property against fire, theft, vandalism or illegal entry. The employee would
be responsible for patrolling on foot, by car or cart and observing the work sites. No minimum
education or experience was required. Duties included patrolling the work site on foot checking
doors, buildings and windows as appropriate; patrolling by car to observe and report by way of
radio; responding to customer calls as needed; interacting with the public; preparing incident
reports; and reading, preparing and copying daily activity reports. The position generally
required an employee to sit 25 percent of the time; stand 5 percent of the time; and walk 70
percent of the time. However, the job description included a notation that the guard has the
ability to sit periodically, if necessary. The position was also described as light duty and
required an employee to: walk continuously while patrolling the area; reach, twist and turn the
head and finger and handle frequently; carry, push and pull intermittently; and stand, sit, balance
and climb occasionally. Physical demands included lifting up to 25 pounds intermittently. The
position description clarified that the guard might need to lift a fire extinguisher, which ranged in
weight from 10 to 20 pounds.
In a letter dated October 2, 2003, Dr. Dodge reviewed the job descriptions and opined
that the positions fell within appellant’s physical restrictions and were reasonable and
appropriate.1
The record contains a copy of a transferable skills report; an August 2003 labor market
survey; and an October 2003 supplemental labor market survey. The labor market survey
reflected that there were a sufficient number of security guard positions available in appellant’s
commuting area, as well as enough hiring, to reasonably expect that he would be able to obtain
employment. The supplemental labor market survey reflected that there were enough companies
in the area that do not require apprehension of the public as part of the position, that appellant
could obtain a position that did not require this job duty.
By letter dated December 9, 2003, appellant’s representative contended that the position
of security guard exceeded his permanent medical restrictions. On January 13, 2004 appellant’s
representative again objected to the position of security guard as medically unreasonable. He
stated that appellant did not intend to retire to work as a security guard and related appellant’s
desire to elect Office of Personnel Management (OPM) benefits in lieu of benefits under the
Federal Employees’ Compensation Act. In a December 28, 2003 progress report, Ms. Dillard
indicated that appellant had elected to discontinue participation in vocational rehabilitation
because he wanted to begin receiving OPM retirement benefits. By letter dated January 21,
2004, the claims examiner informed appellant’s representative that an election of benefits could
not be made until vocational rehabilitation had been completed and a formal rating decision had
been issued.
In a letter to the Office dated January 27, 2004, Ms. Dillard stated that appellant had
informed her on January 13, 2004 that he was no longer interested in participating in
rehabilitation services. Accordingly, she submitted a final report, including labor market
surveys. Ms. Dillard indicated that, based upon the medically determinable residuals of the
injury in the case and taking into consideration all preexisting impairments and pertinent
1

The record also contains a form report dated September 2, 2003, in which Dr. Dodge indicated, by placing a
checkmark in the appropriate box, that appellant was able to perform the duties of a security guard.

3

nonmedical factors, appellant had the necessary vocational and physical skills to perform the job
of security guard and that this job was performed in sufficient numbers so as to make it
reasonably available within his commuting area.
In a March 17, 2004 report, Dr. Dodge provided information relating to the degree of
appellant’s permanent disability. With regard to work restrictions, he opined that appellant
should be precluded from heavy lifting, repeated bending and stooping and prolonged or constant
standing. Dr. Dodge stated that appellant should be nonweight bearing for three hours during the
course of an eight-hour workday.
On May 7, 2004 the Office issued a notice of proposed reduction of compensation, on the
grounds that appellant was no longer totally disabled and had the capacity to earn the wages of a
security guard at the rate of $290.00 per week. Noting the rehabilitation counselor’s conclusion
that, based upon his experience, education, medical restrictions and a labor market survey,
appellant was qualified for the position and that sufficient positions are reasonably available in
his commuting area and that his psychiatrist had released him to work eight hours per day, the
Office found that the position of security guard was medically and vocationally suitable and
fairly and reasonably represented his wage-earning capacity. The Office determined that
appellant’s compensation would be reduced to $555.00 every four weeks. The Office indicated
that appellant’s salary on March 19, 2001, the date of his injury, was $444.30 per week; that the
current adjusted pay rate for his job on the date of injury was $487.30 per week and that he was
currently capable of earning $290.00. per week, the pay rate of a security guard. The Office
determined that appellant had a 60 percent wage-earning capacity, which resulted in an adjusted
wage-earning capacity of $266.58 per week. The Office determined that appellant had a loss of
wage-earning capacity of $177.72 per week. The Office concluded that, based upon a 75 percent
rate, appellant’s new compensation rate was $133.29 per week, increased by the cost of living to
$138.75 per week. A copy of the January 28, 2005 proposed reduction was sent to appellant and
his representative. Appellant was provided 30 days to submit additional evidence or argument in
support of any objection to the proposed reduction. The record does not reflect that any
additional information was received within the 30-day period.
By decision dated June 8, 2004, the Office finalized the reduction of appellant’s
compensation benefits effective July 11, 2004.
The record contains a letter dated June 7, 2004, received by the Office on June 11, 2004,
from Raquell Krueger, legal assistant to appellant’s representative, who objected to the proposed
reduction of benefits, contending that the position of security guard did not represent appellant’s
wage-earning capacity. Ms. Krueger stated that appellant suffered from “drop foot” and had
limited function of his right leg; that he was unable to walk for long periods and had constant
back pain; and that, due to tremors, his penmanship was illegible and he was therefore unable to
maintain logs.
On June 24, 2004 appellant, through his representative, requested an oral hearing. He
submitted a letter dated June 6, 2004 from Dr. Leonard A. Simpson, a Board-certified orthopedic
surgeon, who opined that appellant had a one percent impairment of his left lower extremity.

4

In a report dated June 29, 2005, Dr. Robert E. Urrea, a Board-certified orthopedic
surgeon, provided a medical history, indicating that several cases of chicken had fallen on
appellant in 1986, causing him immediate back pain. He stated that, by 2000, appellant had
developed right lower extremity radicular numbness on the distal anterior lower leg. Dr. Urrea
noted that spinal surgery in 2002 by Dr. Dodge did not improve appellant’s condition and that he
now experienced constant back pain. His examination revealed full range of motion in the
lumbar spine without tenderness of paraspinous muscles, but with pain on extension, right
rotation or right tilt. Bilateral lower extremities had decreased sensation along the left anterior
and posterior thigh, as well as on the left posterior anterior calf and right medial calf. Dr. Urrea
found negative straight leg raise, Patricks, clonus and Babinski. He indicated that x-rays showed
generalized osteopenia with a decreased disc height of the L4-5 and L5-S1, as well as facet
arthropathy of the L3-4 and L5-S1. Dr. Urrea provided a diagnosis of lumbago/lumbar
radiculopathy.
An August 9, 2005 report of an MRI scan of the lumbar spine reflected a disc herniation
at L4-5 and L5-S1, with involvement of right and left nerve roots, as well as spinal stenosis at
both levels. On August 19, 2005 Dr. Urrea diagnosed lumbago and lumbar internal disc
derangement. Examination revealed decreased sensation of the right anterior lower leg and
painful range of motion of the lower back. Dr. Urrea indicated that a lumbar MRI scan revealed
an anterior and posterior herniated disc of L4-5 and L5-S1; an extruded right-sided L4-5 disc; an
extruded central L5-S1 disc; and facet arthropathy of L3-4, L4-5 and L5-S1.
On April 24, 2006 appellant’s representative requested a telephone hearing, in lieu of an
oral hearing. The hearing was held on October 10, 2006. Appellant’s representative contended
that the position of security guard did not represent appellant’s wage-earning capacity, either at
the time of the Office’s June 8, 2004 decision or at the time of the hearing, in that the duties of
the position exceeded his work restrictions. She argued that there had been a change in the
nature and extent of appellant’s condition since the Office’s decision. Appellant testified that he
could not perform the duties of the job because of required bending and twisting. He also stated
that his back condition was more painful and that he was unable to stand or walk for prolonged
periods of time. Appellant also testified that he suffered from a separate medical condition that
required him to supplement his oxygen intake 24 hours per day. His representative conceded
that the position of security guard was vocationally suitable, but disagreed that it was medically
suitable.
In an August 29, 2006 history and physical examination with discharge summary,
Dr. John E. Lundy, a Board-certified general practitioner, stated that appellant arrived at
Nimbres Memorial Hospital disoriented and exhibiting other symptoms of a low oxygen level
due to emphysema. He noted appellant’s complaints of leg cramps.
In a November 7, 2006 letter to the hearing representative, appellant’s representative
reiterated her argument that the position of security guard exceeded his work restrictions and did
not otherwise represent his wage-earning capacity. She contended that the position had not been
shown to be reasonably available in the commuting area.
By decision dated January 19, 2007, the Office hearing representative affirmed the
June 8, 2004 decision reducing appellant’s compensation effective July 11, 2004, based on his

5

ability to earn wages as a security guard in the amount of $290.00 per week. The hearing
representative stated that appellant should file a claim for a recurrence of disability, if he would
like the Office to consider evidence relating to an alleged change in the nature and extent of his
work-related condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
Section 8115(a) of the Act4 provides that, if actual earnings of the employee do not fairly
and reasonably represent his wage-earning capacity or if the employee has no actual earnings,
the wage-earning capacity as appears reasonable under the circumstances is determined with due
regard to: (1) the nature of the injury; (2) the degree of physical impairment; (3) his usual
employment; (4) age; (5) his qualifications for other employment; (6) the availability of suitable
employment; and (7) other factors or circumstances which may affect wage-earning capacity in
his disabled condition.5
ANALYSIS
The Office determined that the selected position of security guard represented appellant’s
wage-earning capacity as of July 11, 2004, based upon Dr. Dodge’s May 19, 2003 work capacity
evaluation, his June 23, 2003 attending physician’s report and his October 2, 2003 report
demonstrating that appellant could work eight hours per day in that capacity. The Board finds
that the Office properly reduced appellant’s compensation based on his ability to perform the
duties of a security guard.
Appellant’s physician found the position of security guard to be within appellant’s
physical restrictions. In a May 19, 2003 work capacity evaluation, Dr. Dodge opined that
appellant was able to work full time with restrictions. He stated that appellant should not walk or
stand for more than 5 hours at a time; should not push or pull more than 30 pounds; should not
lift more than 20 pounds; and should not squat or kneel for more than 15 minutes at a time. On
June 23, 2003 Dr. Dodge indicated that appellant was able to resume light work as of March 14,
2003, provided that he was restricted from prolonged standing or lifting; from lifting more than
20 pounds; or from repeated bending. The Office asked Dr. Dodge to review two job
descriptions for security guard and to opine whether appellant was capable from a medical
perspective of performing the required duties. On October 2, 2003 he opined that the position
2

See 20 C.F.R. §§ 10.403, 10.520.

3

Id.; see Katherine T. Kreger, 55 ECAB 633 (2004).

4

5 U.S.C. § 8115(a).

5

5 U.S.C. § 8115(a); Sherman Preston, 56 ECAB ___ (Docket No. 05-721, issued June 20, 2005); Loni J.
Cleveland, 52 ECAB 171 (2000).

6

descriptions provided fell within appellant’s physical restrictions and were reasonable and
appropriate. On March 17, 2004 Dr. Dodge stated that appellant should be precluded from heavy
lifting, repeated bending and stooping and prolonged or constant standing. He stated that
appellant should be nonweight bearing for three hours during the course of an eight-hour
workday.
Although he recommended in his May 19 and June 23, 2003 reports that appellant should
lift no more than 20 pounds, Dr. Dodge approved the security guard positions on October 2,
2003, after reviewing the specific job descriptions containing a 25-pound limit, noting that the
positions fell within appellant’s physical restrictions and were reasonable and appropriate. The
Board notes that Dr. Dodge’s latest report containing restrictions indicated only that appellant
should be precluded from heavy lifting; no specific weight restriction was imposed. The Board
notes that the 25-pound lifting requirement contained in the position descriptions was reviewed
and approved Dr. Dodge. In fact, the requirement was clarified in position description
DOT No. 372.667-034 to reflect that a guard might be required to lift a fire extinguisher
weighing from 10 to 20 pounds. The requirements of the positions do not exceed Dr. Dodge’s
recommended restrictions. The Board finds the position of security guard to be within
appellant’s restrictions, as delineated by Dr. Dodge.
There is no dispute that the position of security guard is vocationally suitable for
appellant. The vocational rehabilitation counselor determined that appellant was able to perform
the duties of the position and that the position was available in sufficient numbers so as to make
it reasonably available within his commuting area. The counselor advised that appellant’s prior
work experience and educational background qualified him for the position. In fact, appellant’s
representative conceded in the telephone hearing that the position was vocationally suitable.
The Office considered the proper factors, such as availability of employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the security guard position represented his wage-earning capacity.6 The weight
of the evidence of record establishes that appellant had the requisite physical ability, skill and
experience to perform the duties of security guard as of July 11, 2004 and that such a position
was reasonably available within the general labor market of his commuting area.7
The Board also finds that the Office properly determined appellant’s loss of wage-earning
capacity in accordance with the formula developed in Albert C. Shadrick8 and codified at section
10.403 of the Office’s regulations.9 In this regard, the Office indicated that his salary on
March 19, 2001, the date of his injury, was $444.30 per week; that the current adjusted pay rate
for his job on the date of injury was $487.30 per week; and that he was currently capable of
6

Loni J. Cleveland, supra note 5.

7

The Board notes that appellant submitted evidence supporting an alleged change in his condition subsequent to
the wage-earning capacity decision. However, this evidence is not relevant to appellant’s ability to perform the
duties of a security guard as of July 11, 2004.
8

5 ECAB 376.

9

20 C.F.R. § 10.403.

7

earning $290.00 per week, the pay rate of a security guard. The Office then determined that
appellant had a 60 percent wage-earning capacity, which resulted in an adjusted wage-earning
capacity of $266.58 per week. The Office concluded that, based upon a 75 percent rate,
appellant’s new compensation rate was $133.29, increased by the cost of living to $138.75 per
week and that his net compensation for each four-week period would be $555.00. The Board
finds that the Office correctly applied the Shadrick formula and therefore properly found that the
position of medical billing clerk reflected appellant’s wage-earning capacity effective
July 11, 2004.10
Appellant contends that the Office failed to establish that the position was reasonably
available in his commuting area. The Board disagrees. The labor market survey reflected that
there were a sufficient number of security guard positions available in appellant’s commuting
area, as well as enough hiring, to reasonably expect that he would be able to obtain employment.
The supplemental labor market survey reflected that there were enough companies in the area
that did not require apprehension of the public as part of the position, such that appellant could
obtain a position that did not require this job duty. Appellant has not submitted any evidence to
the contrary. Therefore, the Board finds appellant’s contention to be without merit.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
July 11, 2004, based on its determination that the constructed position of security guard
represented his wage-earning capacity.

10

Elsie L. Price, 54 ECAB 734 (2003); Stanley B. Plotkin, 51 ECAB 700 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2007 decision of the Office of
Workers’ Compensation Programs reducing appellant’s compensation benefits is affirmed.
Issued: November 16, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

9