United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Torrance, CA, Employer 

__________________________________________ 

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Docket No. 14-921 

Issued: September 17, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On March 11, 2014 appellant, through her attorney, filed a timely appeal of the 

February 12, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

reducing her compensation benefits to reflect her ability to earn wages in the constructed position 

of customer complaint clerk. 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 the case. 

ISSUE 

The issue is whether OWCP met its burden of proof to reduce appellant’s monetary 

compensation benefits, effective June 30, 2013, based on her capacity to earn wages in the 

constructed position of customer complaint clerk. 

On appeal, counsel argues that the Department of Labor, Dictionary of Occupational 

Titles (DOT) was improperly utilized as it is an outdated publication. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 12, 2010 appellant, then a 48-year-old city carrier, filed a traumatic injury 

claim alleging that she tripped and fell that day while on her route, thereby sustaining a sprain to 

her left ankle. OWCP initially accepted her claim for left ankle sprain. It subsequently accepted 

tenosynovitis of the left foot and ankle and lateral ligament dysfunction and synovitis of the left 

ankle. Appellant underwent surgery on January 25, 2011 for a microfracture procedure of the 

talus, arthroscopic synovectomy and postoperative arthrocentesis with injection. 

In a July 25, 2011 report, Dr. Sharoun Porat, a Board-certified orthopedic surgeon, 

diagnosed appellant with a left ankle osteochondral injury after a chronic ankle sprain, status 

postsurgery with no improvement. She opined that appellant could perform limited duties with 

seated work only. Dr. Porat noted that it was becoming less likely that appellant would be able 

to return to her previous activity levels. 

By letter dated September 7, 2011, OWCP referred appellant for vocational 

rehabilitation. 

In a November 7, 2011 permanent and stationary evaluation, Dr. Porat advised that 

appellant had permanent restrictions limiting her to seated work only. In a December 12, 2011 

work capacity evaluation, she limited appellant to walking and standing one hour a day and 

noted that she was not able to squat, kneel or climb. Dr. Porat stated that these restrictions were 

permanent. 

In a December 20, 2011 report, the vocational counselor noted that the employing 

establishment could not accommodate appellant’s physical restrictions and that she was 

proceeding with plan development. From March 5 through August 24, 2012, appellant 

completed courses at the Institute of Network Technology in Windows 0/S 7; typing/Microsoft 

Word 10; Microsoft Excel 10, Microsoft Access 10; Microsoft PowerPoint 10; Publisher; and 

Outlook and Career Development. She then received job placement assistance for 90 days. In a 

closing labor market survey report dated February 6, 2013, the vocational counselor noted that, 

although appellant was very active in her job search and participated in several interviews, she 

was not offered employment. The vocational counselor opined that the position of customer 

complaint clerk was suitable for appellant. The job description for this position, DOT 

No. 241.367-014, states as follows: 

“Investigates customer complaints about merchandise, service, billing or credit 

rating. Examines records, such as bills, computer printouts, microfilm, meter 

readings, bills of lading and related documents and correspondence and converses 

or corresponds with customer and other company personnel, such as billing, 

credit, sales, service or shipping, to obtain facts regarding customer complaint. 

Examines pertinent information to determine accuracy of customer complaint and 

to determine responsibility for errors. Notifies customer and designated personnel 

of findings, adjustments and recommendations, such as exchange of merchandise, 

refund of money, credit of customer’s account or adjustment of customer’s bill. 

May recommend to management improvements in product, packaging, shipping 

methods, service or billing methods and procedures to prevent future complaints 
3

of similar nature. May examine merchandise to determine accuracy of complaint. 

May follow up on recommended adjustments to ensure customer satisfaction. 

May key information into computer to obtain computerized records. May trace 

missing merchandise and be designated Tracer Clerk (clerical). May investigate 

overdue and damaged shipments or shortages in shipments for common carrier 

and be designated Over-Short-And-Damage Clerk (clerical). May be designated 

according to type of complaint adjusted as Bill Adjuster (clerical); MerchandiseAdjustment clerk (retail trade); Service Investigator (utilities; [telephone]). 

The vocational counselor noted that appellant had a certificate in Computerized Office 

Occupations; a typing speed of 63 words per minute, courses at Long Beach City College in 

Social Work, computer and writing and that she owned a computer. She contacted 10 

employers, five of whom had current openings. There were seven plus openings within the past 

year. The vocational counselor concluded that the physical requirements of all the positions fell 

within the work limitations provided by Dr. Porat in that the duties could be varied, not to exceed 

the restrictions and that the type of work allowed for alternating the duties and physical demands 

at will. She noted that the wage information from the State of California Employment 

Development Department established that the salary for this occupation in the Los Angeles 

County area was $13.47 per hour. The vocational counselor stated that the skills and abilities 

required by employers included knowledge of customer service principles and practices; 

knowledge of administrative procedures; numeric, oral and written language applications; 

interpersonal skills, communication skills both verbal and written; good listening skills, 

problem-solving; attention to detail and accuracy; adaptability; team player with high initiative 

and follow-through; English written and verbal skills; self-motivated and responsible; great 

customer service skills; positive attitude; experience with MS Office including MS Word, Excel, 

Outlook, PowerPoint; Access; ability to type; high school diploma or equivalent. 

The vocational counselor noted that appellant was a mature, responsible and intelligent 

person, with prior experience as a letter carrier, caregiver, kitchen assistant/room service, 

account executive and file clerk. She concluded that these skills in combination with the 

computer office training received at Institute of Network Technology result in appellant being 

qualified for the position of customer complaint clerk. Toward the end of her placement process, 

appellant advised that she was providing caregiving services to her roommate and was hoping to 

provide such services on a full-time basis. The vocational counselor concluded that because of 

the ambiguous nature of such employment and the fact that it could potentially exceed the 

documented work restrictions, placement services were terminated and she proceeded with the 

constructed rating. It was her professional opinion that there was reasonable availability for 

full-time openings as a customer complaint clerk in appellant’s commuting area. 

 On April 29, 2013 OWCP issued a proposal to reduce appellant’s compensation benefits 

to reflect her ability to earn wages as a customer complaint clerk at a rate of $538.80 per week. 

 In a May 13, 2013 report, Dr. Porat advised that there had been no changes in her work 

status since the prior examination and that she remained limited to seated work. 

 On June 18, 2013 OWCP reduced appellant’s monetary compensation effective 

June 30, 2013. 
4

 On June 24, 2013 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. At the hearing held on November 26, 2013, counsel argued that the 

salary utilized for the position of customer complaint clerk was too high. He contended that the 

labor market survey was made up; and that there were no listings for a customer complaint clerk 

on Craigslist, YELP or in the newspaper. Counsel argued that, if the job existed, it was 

outsourced to a foreign country. Appellant testified that it was difficult to stand for a long period 

of time, that she had never performed office work and that she had a hard time talking on the 

telephone and using a computer at the same time. 

 By decision dated February 12, 2014, OWCP’s hearing representative affirmed the 

June 18, 2013 decision. She found that the position was reasonably available within appellant’s 

commuting area and vocationally suitable. 

LEGAL PRECEDENT 

Once OWCP has made a determination that a claimant is totally disabled as a result of an 

employment injury and pays compensation benefits, it has the burden of proving that the 

disability has ceased or lessened in order to justify termination or modification of compensation 

benefits.2

 OWCP’s burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on proper factual and medical background.3

Under section 8115(a) of FECA, wage-earning capacity is determined by the actual 

wages received by an employee if the earnings fairly and reasonably represent his or her 

wage-earning capacity. If the actual earnings do not fairly and reasonably represent 

wage-earning capacity or if the employee has no actual earnings, his or her wage-earning 

capacity is determined with due regards to the nature of the injury, his or her degree of physical 

impairment, his or her usual employment, his or her age, his or her qualifications for other 

employment, the availability of suitable employment and other factors and circumstances which 

may affect his or her wage-earning capacity in his or her disabled condition.4

OWCP must initially determine a claimant’s medical condition and work restrictions 

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

medical evidence relied upon must provide a detailed description of the condition.5

 

Additionally, the Board has held that a wage-earning capacity determination must be based on a 

reasonably current medical evaluation.6

OWCP procedure instructs that, in cases where a claimant has undergone vocational 

rehabilitation, the vocational rehabilitation specialist will submit a final report to the vocational 

 2 Bettye F. Wade, 37 ECAB 556 (1986); Ella M. Gardner, 36 ECAB 238 (1984). 

3 See Del K. Rykert, 40 ECAB 284 (1988). 

4

 5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988). 

5 William H. Woods, 51 ECAB 619 (2000). 

6 John D. Jackson, 55 ECAB 465 (2004). 
5

rehabilitation specialist summarizing why vocational rehabilitation was unsuccessful and listing 

two or three jobs which are medically and vocationally suitable for the claimant. Where no 

vocational rehabilitation services were provided, the vocational rehabilitation specialist will have 

provided the report. Included will be the corresponding job numbers from DOT (or OWCP 

specified equivalent) and pay ranges in the relevant geographical area.7 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 employee service or other applicable service. Finally, application 

of the principles set forth in the Shadrick8 decision will result in the percentage of the 

employee’s loss of wage-earning capacity. 

In determining an employee’s wage-earning capacity based on a position defined suitable 

but not actually held, OWCP must consider the degree of physical impairment, including 

impairments resulting from both injury-related and preexisting conditions, but not impairments 

resulting from post-injury or subsequently acquired conditions. Any incapacity to perform the 

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

the loss of wage-earning capacity that can be attributed to the accepted employment injury and 

for which appellant may receive compensation.9 Additionally, the job selected for determining 

wage-earning capacity must be a job reasonably available in the general labor market in the 

commuting area in which the employee lives.10

ANALYSIS 

The Board finds that OWCP met its burden of proof to reduce appellant’s monetary 

compensation based on her capacity to earn wages as a customer complaint clerk. 

The Board finds that the medical evidence establishes that appellant was capable of 

performing the duties required for the constructed position, as it was sedentary and Dr. Porat 

limited appellant to seated work. Appellant had the appropriate training for the position. 

Despite her alleged inability to work on the computer, she received training through the 

vocational rehabilitation process at the Institute for Network Technology with proficiency in 

Windows 0/S 7, typing/Microsoft Word; Microsoft Excel, Microsoft Access, Microsoft 

PowerPoint, Publisher and Outlook and Career Development. The vocational counselor 

conducted a search and determined that such work was reasonable availability for full-time 

positions as a customer complaint clerk in appellant’s commuting area. She determined the 

wage through contact with the State of California Employment Development Department which 

advised that the salary for this occupation in the Los Angeles County area was $13.47 per hour. 

The Board finds that OWCP considered the proper factors, such as availability of suitable 

employment and appellant’s physical limitations, usual employment and age and employment 

 7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.814.8 (October 2009). 

8 Albert C. Shadrick, 5 ECAB 376 (1953). 

9 James Henderson, Jr., 51 ECAB 619 (2000). 

10 Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982). 
6

qualifications, in determining that the position of customer complaint clerk represented her 

wage-earning capacity.11 OWCP used the information provided by the rehabilitation counselor 

of the prevailing wage rate in the area for a customer complaint clerk and established that jobs in 

the position selected for determining wage-earning capacity were reasonably available in the 

general labor market in the geographic commuting area in which the employee lived. The 

weight of the evidence of record establishes that appellant had the requisite physical ability, skill 

and experience to perform the position of customer complaint clerk and that the position was 

reasonably available within the general labor market of appellant’s commuting area. 

Appellant has not submitted any evidence to support her argument that such positions 

were not reasonably available in the general labor market. Furthermore, the Board notes that 

FECA’s Procedure Manual clearly states that the vocational counselor shall include in her report 

the DOT description of all the duties and physical requirements of each job.12

OWCP properly applied the principles set forth in the Shadrick13 decision to determine 

appellant’s employment-related loss of wage-earning capacity. It calculated that her 

compensation rate should be adjusted to $280.46 using the Shadrick formula. OWCP indicated 

that appellant’s salary as of February 27, 2010, the date her disability began, was $890.40 per 

week. It stated that her current adjusted pay rate for the job on the date of injury was $923.96. 

OWCP determined that appellant was currently capable of earning $538.80 per week, the rate of 

a customer complaint clerk. Therefore, it determined that she had a 58 percent wage-earning 

capacity, which when multiplied by 2/3 amounted to a compensation rate of $280.48. OWCP 

found that appellant’s current adjusted compensation rate, per four week-period (prior to any 

deductions), was $1,200.00. It therefore properly determined that the position of customer 

complaint clerk reflected her wage-earning capacity and using the Shadrick formula, properly 

reduced her compensation effective June 30, 2013. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to reduce appellant’s compensation 

benefits, effective June 30, 2013, based on her capacity to earn wages in the constructed position 

of customer complaint clerk. 

 11 D.W., Docket No. 14-347 (issued June 4, 2014). 

12 Supra note 7. 

13 Supra note 8; see also 20 C.F.R. § 10.403. 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 12, 2014 is affirmed. 

Issued: September 17, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board