N.H. and Department of Defense, Defense Logistics Agency, Robins Air Force Base (Board decision, March 1, 2024)

ECAB final decision. The Board reversed OWCP’s wage-capacity reduction. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

OWCP reduced a Defense Logistics Agency employee’s wage-loss benefits based on earnings as an office clerk. The Board found that the medical opinion used to assess her work capacity did not account for all accepted injury conditions. It held that OWCP had not shown the clerk earnings fairly represented her wage-earning capacity and reversed the reduction.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Office-clerk wage-capacity reduction reversed.
• Key point: An incomplete statement of accepted facts undermined the work-capacity opinion.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.H., Appellant
)
)
and ) Docket No. 23-0153
) Issued: March 1, 2024
DEPARTMENT OF DEFENSE, DEFENSE
)
LOGISTICS AGENCY, ROBINS AIR FORCE
)
BASE, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 10, 2022 appellant, through counsel, filed a timely appeal from a September 13, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 The Board notes that, following the September 13, 2022 decision, appellant submitted additional evidence to OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.4

ISSUE

The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss compensation, effective May 23, 2022, based on her actual earnings as an office clerk.

FACTUAL HISTORY

On August 7, 2019 appellant, then a 61-year-old distribution process worker, filed a traumatic injury claim (Form CA-1) alleging that on August 5, 2019 she sustained injury to her right arm and neck when she reached to open a cabinet and felt something pop in her right arm while in the performance of duty. She was working in a light-duty position at the time of the injury but did not stop work but was after the August 5, 2019 alleged injury. OWCP accepted appellant’s claim for impingement syndrome of the right shoulder. In mid-2020, appellant began to stop work on an intermittent basis. OWCP paid her wage-loss compensation on the supplemental rolls, effective June 9, 2020. On August 13, 2020 appellant underwent OWCP-authorized right shoulder surgery, including arthroscopy with biceps tenodesis, subacromial bursectomy with decompression, and debridement of labral, subscapularis, and rotator cuff tears.5

Appellant stopped work completely on August 17, 2020. OWCP paid her wage-loss compensation on the periodic rolls, effective September 13, 2020.

On March 22, 2021 OWCP referred appellant and the case record for a second opinion examination with Dr. Jeffrey A. Fried, a Board-certified orthopedic surgeon. It provided him a March 22, 2021 statement of accepted facts (SOAF), which listed the accepted condition as right shoulder impingement and noted that he must use the SOAF as the only factual framework for his opinion.

On the March 22, 2021 cover sheet for a series of questions to be answered by Dr. Fried, OWCP listed the accepted condition as right shoulder impingement. The series of questions included a question requesting Dr. Fried to provide an opinion regarding “all current diagnoses causally connected to the work injury.” OWCP further requested that he opine whether the work- related condition had resolved and, if appellant could not return to her date-of-injury position, to delineate her present level of disability which was “a direct result of the accepted work-related 3 5 U.S.C. § 8101 et seq.
4
The Board notes that the July 6, 2022 OWCP decision is also within the Board’s jurisdiction. However, appellant’s counsel has only appealed from the September 13, 2022 decision. Thus, the July 6, 2022 decision is not properly before the Board and will not be addressed in this decision. See 20 C.F.R. § 501.3. 5 Under a separate claim, assigned OWCP File No. xxxxxx011, OWCP previously accepted that on November 9, 2015 appellant sustained the left shoulder conditions of adhesive capsulitis, unspecified rotator cuff tear or rupture, and aggravation of impingement syndrome due to a fall down stairs at work. On June 1, 2016 appellant underwent OWCP-authorized left shoulder diagnostic arthroscopy and subacromial decompression. OWCP administratively combined the files for OWCP File No. xxxxxx865, the instant claim, and OWCP File No. xxxxxx011, designating the latter as the master file.

2 conditions” detailed in the March 22, 2021 SOAF. It directed Dr. Fried to complete a work capacity evaluation (Form OWCP-5c) outlining appellant’s “work capabilities.”

In a June 2, 2021 report, Dr. Fried indicated that appellant previously underwent a rotator cuff repair and reported constant pain despite the surgery. He advised that she complained of pain in both arms at times. Dr. Fried discussed physical examination findings, noting that appellant’s left shoulder had 4/5 abduction strength, positive impingement, and limited range of motion. He found that appellant had decreased sensation in her right hand. Dr. Fried opined that appellant’s “work-related condition” had not resolved and that her current diagnoses “causally related to the work injury” were impingement syndrome, rotator cuff injury, and adhesive capsulitis of the left shoulder. Appellant could only perform light-duty work due to weakness and loss of range of motion.

In a June 21, 2021 work capacity evaluation (Form OWCP-5c), Dr. Fried indicated that appellant had an accepted condition of left shoulder impingement and opined that she could push, pull, and lift up to 20 pounds for three hours per day, reach for three hours, operate a motor vehicle to and from work for two hours, and operate a motor vehicle at work for one hour. He noted that appellant could not reach above the shoulder level or climb ladders, and that she needed to take 5- to 10-minute breaks every two hours.

On September 16, 2021 the employing establishment offered appellant a full-time permanent position as an office clerk. The position involved performing administrative and clerical duties, including sorting and categorizing documents, maintaining electronic and physical office files, and scanning documents into electronic data bases. The physical requirements of the position included sedentary work with some walking, standing, bending, and carrying of light items such as papers and books. Appellant declined the office clerk position.

In an October 26, 2021 report, Clarence Millikin, a physician assistant, discussed appellant’s factual and medical history, and opined that she could only drive 45 minutes to and from work rather than the 60 minutes indicated by Dr. Fried. He also restricted her from lifting more than 10 pounds above the chest or overhead. In a form report of the even date, Dr. Rajiv Pandya, a Board-certified orthopedic surgeon, provided restrictions indicating that appellant could lift up to 10 pounds with her right arm.

On September 24, 2021 OWCP indicated that it had provided Dr. Fried a description of the position offered by the employing establishment on September 16, 2021 and requested that he provide clarification of his earlier reports with respect to appellant’s ability to work.6 In a supplemental October 19, 2021 report, he discussed the limited motion and strength of her left shoulder and advised that her subjective complaints did not correspond with the objective findings. Dr. Fried indicated that appellant was “still capable of performing her job” and noted that she “can still perform that work.”

6
The case record does not contain a copy of the particular job description OWCP indicated had been provided to Dr. Fried at that time.

3
 On April 5, 2022 OWCP contacted the employing establishment and confirmed that the office clerk position was still available to appellant with the same duties and physical requirements of the original September 2021 offer.

In an April 6, 2022 letter, OWCP advised appellant of its determination that the office clerk position offered by the employing establishment was suitable based on the June 2 and October 19, 2021 reports by Dr. Fried. It informed her that her wage-loss compensation and entitlement to schedule award compensation would be terminated if she did not accept the position or provide good cause for not doing so within 30 days of the date of the letter.

Appellant accepted the office clerk position on May 3, 2022 and began working in the position on May 23, 2022 with wages of $718.81 per week.

By decision dated September 13, 2022, OWCP determined that appellant’s actual wages as an office clerk fairly and reasonably reflected her wage-earning capacity effective September 13, 2022. It found that the position was suitable to her partial disability condition as she had demonstrated the ability to perform its duties for 60 days or more. OWCP calculated appellant’s loss of wage-earning capacity (LWEC) by applying the principles of Albert C. Shadrick.7

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or lessened in order to justify termination or modification of compensation benefits.8 OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background.9

Under 5 U.S.C. § 8115(a), 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. Generally, wages actually earned are the best measure of wage-earning capacity and, in the absence of evidence showing that they do not fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted as such measure.10 A determination regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity should be made only after an employee has worked in a given position for at least 60 days.11 Wage- earning capacity may not be based on an odd-lot or make-shift position designed for an employee’s particular needs, a temporary position when the position held at the time of injury was permanent,

7
See 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.
8
Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).
9
See Del K. Rykert, 40 ECAB 284, 295-96 (1988).
10
E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual Earnings, Chapter 2.815.5 (June 2013).

4 or a position that is seasonal in an area where year-round employment is available.12 The Board has held that earnings do not fairly and reasonably represent wage-earning capacity if the medical evidence does not establish that the position was within the employee’s work restrictions.13 Once OWCP determines that the actual wages of a given position represent an employee’s wage-earning capacity, OWCP applies the principles developed in the Albert C. Shadrick14 decision, now codified at 20 C.F.R. § 10.403, in order to calculate the adjustment in the employee’s compensation. Compensation payments are based on the wage-earning capacity determination, and OWCP’s finding remains undisturbed until properly modified.15

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s wage- loss compensation, effective May 23, 2022.

In reaching its determination of appellant’s LWEC, OWCP found that appellant’s work as an office clerk since May 23, 2022 fairly and reasonably represented her wage-earning capacity. However, the evidence of record does not demonstrate that the office clerk position constituted appropriate work given her overall medical condition, when considering all accepted employment conditions, such that it fairly and reasonably represented her wage-earning capacity.16

It is OWCP’s responsibility to provide a complete and proper frame of reference for a physician by preparing a SOAF.17 OWCP’s procedures dictate that when an OWCP medical adviser, second opinion specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the probative value of the opinion is seriously diminished or negated altogether.18

OWCP relied on the opinion of Dr. Fried to assess appellant’s ability to work. However, Dr. Fried’s evaluation of her work capacity is deficient. OWCP provided him a March 22, 2021 SOAF, which listed her right upper condition accepted under OWCP File No. xxxxxx865. The March 22, 2021 SOAF, however, did not adequately reference all of appellant’s accepted employment conditions. As such, it did not provide a complete and accurate factual basis upon which Dr. Fried could provide a reasoned opinion on appellant’s work capacity. Therefore, his

12
See James D. Champlain, 44 ECAB 438, 440-41 (1993); id. at Chapter 2.815.5c (June 2013).
13
C.G., Docket No. 21-0495 (issued April 13, 2022).
14
Supra note 10.
15
D.M., Docket No. 16-1527 (issued July 25, 2017); Katherine T. Kreger, 55 ECAB 633 (2004).
16
See supra note 13.
17
See Order Reversing Case, P.D., Docket No. 19-0541 (issued December 18, 2019); J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).
18
Supra note 14 at Chapter 3.600.3 (October 1990).

5 reports cannot serve as the basis for OWCP’s determination regarding her ability to work and earn wages.19

For these reasons, OWCP did not establish that the earnings of the office clerk position, in which appellant returned to work on May 23, 2022, fairly and reasonably represent her wage- earning capacity. Consequently, it did not meet its burden of proof to reduce appellant’s wage- loss compensation, effective May 23, 2022.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s wage- loss compensation, effective May 23, 2022.

ORDER

IT IS HEREBY ORDERED THAT the September 13, 2022 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: March 1, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

19
Id.; G.C., Docket No 18-0842 (issued December 20, 2018).

6