N.B. and Smithsonian Institution, National Museum of African American History and Culture (Board decision, March 12, 2024)

ECAB final decision. The Board affirmed one OWCP decision and reversed another: Form-based suspension affirmed; wage-capacity reduction reversed. 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

A Smithsonian employee did not return a requested earnings disclosure form, so the Board upheld suspension of his wage-loss compensation. OWCP later reduced his benefits based on a maintenance service dispatcher position. The Board found that the medical opinions did not clearly show he could perform the job’s reaching and handling duties and gave inconsistent hand and wrist restrictions. It reversed the wage-capacity reduction.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Form-based suspension affirmed; wage-capacity reduction reversed.
• Key point: Unclear physical restrictions did not support the selected dispatcher job.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.B., Appellant
)
)
and ) Docket No. 23-1157
) Issued: March 12, 2024
SMITHSONIAN INSTITUTION, NATIONAL
)
MUSEUM OF AFRICAN AMERICAN
)
HISTORY & CULTURE, Washington, DC,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 28, 2023 appellant filed a timely appeal from May 24 and June 27, 2023 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the June 27, 2023 decision, appellant submitted additional evidence to OWCP and with his appeal 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. ISSUES

The issues are: (1) whether OWCP properly suspended appellant’s wage-loss compensation benefits, effective May 24, 2023, due to his failure to submit a Form EN-1032, as requested; and (2) whether OWCP has met its burden of proof to reduce appellant’s wage-loss compensation, effective June 27, 2023, based on his capacity to earn wages in the constructed position of maintenance service dispatcher.

FACTUAL HISTORY

On November 30, 2018 appellant, then a 53-year-old utility system repairer operator, filed a traumatic injury claim (Form CA-1) alleging that on November 29, 2018 he experienced swelling in his right hand and four of his fingers when his right hand got caught between a grate and a pole while in the performance of duty. He did not stop work, but worked limited duty. OWCP accepted appellant’s claim for right index and middle finger contusions without damage to nail, right wrist sprain, and nondisplaced fracture of the medial phalanx of the right middle finger. It subsequently expanded the acceptance of his claim to include lesion of the right radial and ulnar nerves, other synovitis and tenosynovitis of the right hand, right hand transient synovitis, and right elbow and wrist sprains.

On June 21, 2019 appellant underwent OWCP-approved right hand and wrist first dorsal compartment release and debridement surgery. He stopped work. OWCP paid appellant wage- loss compensation on the supplemental rolls from June 21, 2019 through June 20, 2020 and on the periodic rolls, effective June 21, 2020.

Beginning April 13, 2021, OWCP periodically requested that appellant submit financial disclosure statements (Form EN-1032), which solicited information regarding his employment, volunteer work, dependent(s) status, receipt of other federal benefits and/or payments, and third- party settlements.

In a report dated February 7, 2022, Dr. Gordon L. Avery, a Board-certified orthopedic surgeon, reviewed his medical history and noted appellant’s complaints of right wrist and elbow pain. He diagnosed right upper extremity radial tunnel syndrome and right wrist primary osteoarthritis. Dr. Avery completed a work capacity evaluation (Form OWCP-5c), which noted that appellant had right arm pain and was unable to lift his right hand and arm. He indicated that appellant could work full time, sedentary duty with restrictions to his wrists, elbow, pushing, pulling, lifting, and squatting.

On February 14, 2022 based upon the opinion of Dr. Avery, OWCP referred appellant to a vocational rehabilitation counselor for vocational rehabilitation services.

In a vocational rehabilitation report dated May 28, 2022, the vocational rehabilitation counselor noted that appellant had completed four years in an engineering technical high school and achieved his bachelor’s degree in engineering and education. Appellant also obtained his first- class engineering license, which qualified him for employment as a boiler operator and heating, ventilation, and air conditioning technician. He was employed as a utility system repairer operator for the Department of Defense from 2013 through 2017 and as a utility system repairer operator

2 for the Smithsonian Institution beginning in 2017. The vocational rehabilitation counselor identified the positions of repair order clerk, service clerk, maintenance service dispatcher, and maintenance scheduler based on a transferrable skills analysis and the positions of interpreter and translator with additional English as a second language skill enhancement.

On August 22, 2022 the vocational rehabilitation counselor completed a job classification (Form CA-66) for the position of maintenance service dispatcher, according to the Department of Labor, Dictionary of Occupational Titles (DOT) #239.367-014. The duties of a maintenance service dispatcher included receiving telephone and written orders from plant departments for maintenance service such as repair work, machine adjustments and renewals, installation of other plant property, and relays requests to appropriate maintenance division, keeps records of and services rendered, and requests supplies for maintenance and clerical workers. The Department of Labor, Dictionary of Occupational Titles described the physical requirements of the maintenance service dispatcher as sedentary strength level with no climbing, balancing, stooping, kneeling, crouching, or crawling, frequent reaching and fingering, and constant handling. The vocational rehabilitation counselor determined that the maintenance service dispatcher job was performed in a sufficient geographical number in appellant’s area at a weekly wage of $710.00 according to employment data.

In a letter dated September 6, 2022, OWCP advised appellant that the position of maintenance service dispatcher was suitable to his restrictions.3 It advised him that he would receive 90 days of placement assistance to help locate work in this position, provided that he cooperated with such effort. OWCP explained that appellant’s wage-loss compensation benefits would be reduced based upon the salary of a maintenance service dispatcher at the end of the 90-day placement assistance period.

OWCP subsequently approved extensions of job placement services through May 8, 2023.

In an April 17, 2023 letter, OWCP informed appellant that federal regulations required him to execute an affidavit relative to any earnings or employment during the previous 15 months and that a Form EN-1032 was enclosed for that purpose. It notified him that he must fully answer all questions on the enclosed Form EN-1032 and return it within 30 days or his benefits would be suspended. OWCP mailed the notice to appellant’s last known address of record. No response was received within the time allotted.

On May 11, 2023 the rehabilitation counselor conducted labor market research and documented that maintenance service dispatcher positions were reasonably available within appellant’s commuting area and the entry pay level of the position was $30,000.00 a year.

On May 19, 2023 OWCP’s vocational rehabilitation specialist recommended preparations of a loss of wage-earning capacity (LWEC) determination. The rehabilitation specialist noted that the constructed position of maintenance service dispatcher was sedentary and found that appellant could earn $710.00 per week in that position. She noted that the position of maintenance service dispatcher remained medically and vocationally suitable in relation to his age, education, and

3
OWCP also noted that the position of information clerk was within appellant’s restrictions.

3 experience. The vocational rehabilitation specialist reported that job placement assistance was unsuccessful.

By notice dated May 24, 2023, OWCP advised appellant that it proposed to reduce his wage-loss compensation on the basis that he could work as a maintenance service dispatcher, DOT No. 239.367-014, at the rate of $710.00 per week. It attached the job classification for maintenance service dispatcher and noted that the rehabilitation specialist documented that such positions were available in his commuting area and that the entry pay level for the position was $710.00 per week. OWCP explained that the maintenance service dispatcher position was determined to be within appellant’s permanent work restrictions since it was sedentary. It calculated that his compensation rate should be adjusted to $2,099.00 every four weeks using the Albert C. Shadrick formula.4 OWCP provided appellant 30 days to submit additional evidence regarding his capacity to earn wages in the position described.

By decision dated May 24, 2023, OWCP suspended appellant’s wage-loss compensation benefits effective that date, due to his failure to submit the Form EN-1032, as requested. It noted that, if he completed and returned the enclosed copy of the Form EN-1032, his compensation benefits would be restored retroactively to the date they were suspended.

In a progress report dated June 5, 2023, Dr. Avery indicated that appellant was evaluated for follow-up of right elbow disability. He reviewed appellant’s previous surgeries and diagnosed radial tunnel syndrome of the right upper extremity and osteoarthritis of the right wrist. Dr. Avery completed a Form OWCP-5c, which indicated that appellant was unable to work full duty due to arm pain and inability to use his right hand and arm. He reported that appellant could work full- time, sedentary duty with restrictions of no repetitive movements of the wrists and elbows, pushing, pulling, or lifting.

By decision dated June 27, 2023, OWCP reduced appellant’s wage-loss compensation, effective that date, finding that he had the capacity to earn wages of $710.00 per week as a maintenance service dispatcher. It noted that the February 7, 2022 work restrictions of Dr. Avery constituted the weight of the medical evidence and established that he could perform the duties of the selected position. OWCP applied the formula set forth in Albert C. Shadrick5 as codified in section 10.403 of OWCP’s regulations, to determine appellant’s LWEC.

LEGAL PRECEDENT -- ISSUE 1

FECA authorizes the Secretary of Labor to require a partially disabled employee to report his or her earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies.6

Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt of compensation benefits must complete an affidavit as to any work or activity indicating an ability 4 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.
5
Id.
6
5 U.S.C. § 8106(b).

4 to work which the employee has performed for the prior 15 months.7 If an employee who is required to file such a report fails to do so within 30 days of the date of the request, his or her right to compensation for wage loss is suspended until OWCP receives the requested report. At that time, OWCP will reinstate compensation retroactive to the date of suspension if the employee remains entitled to compensation.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly suspended appellant’s wage-loss compensation benefits, effective May 24, 2023, due to his failure to complete a Form EN-1032, as requested.

On April 17, 2023 OWCP provided appellant with a Form EN-1032 and notified him that federal regulations required him to complete the form and answer all questions concerning his employment or earnings. It properly notified him that, if he did not completely answer all questions and return the statement within 30 days, his benefits would be suspended. The Board has held that, absent evidence to the contrary, a notice mailed in the ordinary course of business is presumed to have been received by the intended recipient.9 The presumption is commonly referred to as the “mailbox rule.”10 The record reflects that OWCP’s letter was properly sent to appellant’s address of record and there is no indication that it was returned as undeliverable.

The record establishes that appellant did not submit a completed Form EN-1032 prior to the May 24, 2023 OWCP decision suspending his benefits. Thus, the Board finds that OWCP properly suspended his compensation benefits, effective May 24, 2023, pursuant to 20 C.F.R.
§ 10.528.11

LEGAL PRECEDENT -- ISSUE 2

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.12 An injured employee who is either unable to return to the position held at the time of injury or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is entitled to compensation computed based on his or her LWEC.13

7
20 C.F.R. § 10.528.
8
Id., see also id. at § 10.525.
9
E.G., Docket No. 20-1184 (issued March 1, 2021); R.L., Docket No. 20-0186 (issued September 14, 2020);
Claudia J. Whitten, 52 ECAB 483 (2001).
10
L.L., Docket No. 21-1194 (issued March 18, 2022); C.C., Docket No. 17-0043 (issued June 15, 2018); A.H., Docket No. 15-0241 (issued April 3, 2015).
11
See B.F., Docket No. 22-0585 (issued October 20, 2022); W.L., Docket No. 18-1051 (issued March 24, 2021); see also James A. Igo, 49 ECAB 189 (1997).
12
See L.M., Docket No. 20-1038 (issued March 10, 2021); E.D., Docket No. 17-1064 (issued March 22, 2018).
13
5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

5
 An employee’s actual earnings generally best reflect his or her wage-earning capacity.14 Absent evidence that actual earnings do not fairly and reasonably represent the employee’s wage- earning capacity, such earnings must be accepted as representative of the individual’s wage- earning capacity.15 But if actual earnings do not fairly and reasonably represent the employee’s wage-earning capacity or the employee has no actual earnings, then wage-earning capacity is determined with due regard to the nature of the injury, the degree of physical impairment, the employee’s usual employment, age, qualifications for other employment, the availability of suitable employment, and other factors and circumstances that may affect wage-earning capacity in his or her disabled condition.16

OWCP must initially determine the employee’s medical condition and work restrictions before selecting an appropriate position that reflects his or her vocational wage-earning capacity.17 The medical evidence OWCP relies upon must provide a detailed description of the employee’s condition and the evaluation must be reasonably current.18 Where suitability is to be determined based on a position not actually held, the selected position must accommodate the employee’s limitations from both injury-related and preexisting conditions, but not limitations attributable to post-injury or subsequently-acquired conditions.19

When OWCP makes a determination of partial disability and of specific work restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or otherwise available in the open market, that fits the employee’s capabilities with regard to his physical limitations, education, age, and prior experience.20 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.21 Lastly, OWCP applies the principles set forth in Albert C. Shadrick22 as codified in section 10.403 of OWCP’s regulations,23 to determine the percentage of the employee’s LWEC.

14
See T.D., Docket No. 20-1088 (issued June 14, 2021); Hayden C. Ross, 55 ECAB 455, 460 (2004).
15
Id.
16
Supra note 13 at § 8115(a); S.F., Docket No. 20-0869 (issued October 14, 2021); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).
17
See M.H., Docket No. 21-1055 (issued March 30, 2022); M.A., 59 ECAB 624, 631 (2008).
18
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.4d (June 2013); see also J.H., Docket No. 18-1319 (issued June 26, 2019). 19 Id. at Chapter 2.816c; see also N.J., 59 ECAB 171 (2007).
20
Id. at Chapter 2.813.7b (February 2011).
21
Id. at Chapter 2.816.6a (June 2013); see also C.M., Docket No. 18-1326 (issued January 4, 2019).
22
Supra note 4.
23
20 C.F.R. § 10.403.

6
 ANALYSIS -- ISSUE 2

The Board finds that OWCP has not met its burden of proof to reduce appellant’s wage- loss compensation, effective June 27, 2023, based on his capacity to earn wages in the constructed position of a maintenance service dispatcher.

The issue of whether appellant has the physical capacity to perform a selected position is primarily a medical question that must be resolved by the medical evidence of record.24

OWCP relied on the opinion of Dr. Avery in finding that the selected position of maintenance service dispatcher was within appellant’s physical limitations. In a February 7, 2022 Form OWCP-5c, Dr. Avery indicated that appellant was unable to lift his right hand and arm. The job description noted that physical requirements of the position required frequent reaching and fingering and constant handling. However, his report did not address whether appellant could perform the duties of reaching, fingering, and handling without the use of his right hand and arm. The Board finds, therefore, that the medical evidence of record does not clearly establish that he could physically perform the duties of the maintenance service dispatcher position.25

Furthermore, the evidence of record is also unclear regarding appellant’s restrictions for repetitive use of the hands and wrists. In the February 7, 2022 Form OWCP-5c, Dr. Avery noted that appellant could work full time, sedentary duty with restrictions of his wrists, elbows, pushing, pulling, lifting, and squatting. He did not specify, however, what the restrictions were regarding appellant’s wrists and elbows. In the June 5, 2023 Form OWCP-5c, Dr. Avery reported that appellant could work full time, sedentary duty with no repetitive movements of the wrists and elbows, pushing, pulling, or lifting.

OWCP’s procedures provide that, in assessing an employee’s ability to perform a constructed position, if the evidence is unclear, equivocal, or old enough to be considered stale, the claims examiner should seek clarification from a physician regarding the suitability of the position.26 Dr. Avery provided two restrictions regarding appellant’s repetitive movements of the hands and wrists, pushing, pulling, or lifting.27 OWCP did not seek clarification from Dr. Avery regarding this discrepancy, and thus, the evidence of record is not clear as to whether appellant had the capacity to work in the selected position prior to reducing his wage-loss compensation. It consequently failed to meet its burden of proof to reduce appellant’s compensation effective

24
S.M., Docket No. 23-0353 (issued July 13, 2023); G.F., Docket No. 20-1031 (issued December 31, 2020);
Dennis D. Owen, 44 ECAB 475 (1993).
25
See G.E., Docket No. 18-0663 (issued December 21, 2018) (the Board found that OWCP improperly reduced appellant’s wage-loss compensation benefits when the second-opinion physician restricted appellant to two hours of sitting and the position description did not specify how long appellant would be required to sit). 26 Supra note 18 at Chapter 2.816.4 (June 2013); P.B., Docket No. 22-0199 (issued September 6, 2022); G.F., Docket No. 20-1031 (issued December 31, 2020).
27
See M.P., Docket No. 22-0258 (issued February 10, 2023) (the Board reversed an LWEC determination finding that a physician’s opinion that an appellant should work in a position with “constant contact” with the public was unclear); see also S.B., Docket No. 19-0781 (issued February 2, 2022) (the Board reversed an LWEC determination when the medical evidence of record had two different restrictions regarding an appellant’s ability to reach at work).

7
June 27, 2023 based on its finding that he had the capacity to earn wages as a maintenance service dispatcher.

CONCLUSION

The Board finds that OWCP has met its burden of proof to suspend appellant’s wage-loss compensation benefits, effective May 24, 2023, due to his failure to submit a Form EN-1032, as requested. The Board also finds that OWCP has not met its burden of proof to reduce his wage- loss compensation, effective June 27, 2023, based on his capacity to earn wages in the constructed position of a maintenance service dispatcher.

ORDER

IT IS HEREBY ORDERED THAT the May 24, 2023 decision of the Office of Workers’ Compensation Programs is affirmed, and the June 27, 2023 decision is reversed.

Issued: March 12, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

8