United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 15-788 

Issued: June 15, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 23, 2015 appellant filed a timely appeal from the January 9, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUE 

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

effective January 11, 2015 based on her capacity to earn wages in the constructed position of 

customer complaint clerk. 

FACTUAL HISTORY 

On June 11, 2007 appellant, then a 46-year-old mail handler, filed an occupational 

disease claim alleging that she sustained injury to her feet due to the standing and walking 

required by her job over time. OWCP accepted her claim for bilateral plantar fibromatosis and 

 1

 5 U.S.C. §§ 8101-8193. 
2

tarsal tunnel syndrome, and authorized multiple surgeries including right foot plantar fascial 

release in January 2009, left foot fascial release in April 2009, right foot tarsal tunnel release in 

August 2009, left tarsal tunnel release in December 2009, and right scar revision surgery in 

February 2012. Appellant received disability compensation on the periodic rolls.2

Under file number xxxxxx927, appellant’s claim was accepted in 2009 for left medial 

epicondylitis, lesion of left ulnar nerve, left shoulder tendinitis, and left cubital syndrome. She 

underwent left carpal tunnel release surgery on April 23, 2012 which was authorized by OWCP. 

File number xxxxxx673, concerning the claim filed in June 2007, is the master file for all of 

appellant’s claims. 

In a report dated March 26, 2013, appellant’s attending Board-certified foot and ankle 

surgeon, Dr. Domenic Signorelli, determined that she could perform modified work on a fulltime basis. 

In early 2013, appellant was referred to an OWCP-sponsored vocational rehabilitation 

program. Appellant’s vocational rehabilitation counselor determined that she was capable of 

working as a customer complaint clerk, as identified under number 241.267-014 in the 

Department of Labor’s Dictionary of Occupational Titles (DOT). According to the Department 

of Labor’s Dictionary of Occupational Titles, the customer complaint clerk position involves 

investigating complaints about merchandise, service, billing, or credit ratings. It requires 

examining records, such as bills, computer printouts, bills of lading, and related documents and 

correspondence, and communicating or corresponding with customers and other company 

employees to evaluate customer complaints. The customer complaint clerk position is sedentary 

in nature. Sedentary work, according to the Department of Labor’s Dictionary of Occupational 

Titles, involves exerting up to 10 pounds of force occasionally and sitting most of the time, but 

may involve walking or standing for brief periods of time. Occasionally performing an activity 

means that the activity is performed up to one third of the time during the workday. The 

customer complaint clerk position does not involve climbing, balancing, stooping, kneeling, 

crouching, or crawling. It does involve occasional reaching, handling, and fingering. 

Appellant’s vocational rehabilitation counselor determined that state labor market 

surveys showed that the customer complaint clerk position was reasonably available in 

appellant’s commuting area. In conjunction with the vocational rehabilitation program, appellant 

successfully engaged in training for this position at the Caledonia School from April 8 to 

July 30, 2013. This training was designed to improve appellant’s computer skills so that she had 

the skills to work as a customer complaint clerk. 

In a July 22, 2013 report, Dr. Hovsep Babayan, an attending osteopath, determined that 

appellant could work on a full-time basis with restrictions including continuous lifting of up to 

10 pounds and intermittent lifting of up to 15 pounds. Appellant could sit for eight hours per 

day, stand for two hours per day, and walk for two hours per day. She could engage in simple 

grasping and fine manipulation with her hands for eight hours per day and reach above shoulder 

height for eight hours per day. 

 2

 Under file number xxxxxx437, appellant filed a claim that was accepted in 2002 for bilateral carpal tunnel 

syndrome and bilateral lateral epicondylitis. 
3

In a September 20, 2013 report, Dr. Wayman D. Merrill, an attending Board-certified 

family practitioner, discussed appellant’s physical condition, including her multiple upper 

extremity conditions. He indicated that she could perform modified work on a full-time basis 

with restrictions including lifting no more than 15 pounds. Appellant could engage in fine 

manipulation and simple grasping with her hands for four hours per day and could reach above 

shoulder height for four hours per day. Dr. Merrill did not put any restrictions on sitting or 

standing. 

In early 2014, appellant’s vocational rehabilitation counselor reconfirmed that the 

customer complaint clerk position was reasonably available in appellant’s commuting area. 

Appellant however was not successful in finding work as a customer complaint clerk. 

In a July 9, 2014 report, Dr. Merrill reported the findings of his physical examination of 

appellant. He indicated that she had some pain complaints in her upper extremities and stated 

with regard to her work restrictions, “She is to limit simple grasping and fine manipulation on 

the right to four hours per day due to residual right carpal tunnel symptoms; otherwise, there will 

be no change from September 20, 2013.” 

In a July 29, 2014 report, Dr. Signorelli, an attending Board-certified foot and ankle 

surgeon, reported his findings on physical examination of appellant. He stated that she reported 

only having mild tingling in her feet. The muscle strength examination of appellant’s lower 

extremities was normal and all epicritic sensations were intact. Dr. Signorelli indicated that her 

work restrictions were “per primary attending physician,” i.e., per Dr. Merrill. 

In an October 16, 2014 letter, OWCP advised appellant that it proposed to reduce her 

compensation based on her capacity to earn wages in the constructed position of customer 

complaint clerk. It provided her 30 days to submit evidence and argument challenging the 

proposed action. 

In a November 11, 2014 statement, appellant argued that she was not physically capable 

of working as a customer complaint clerk. She submitted several medical reports, but none 

indicated that she was unable to perform the duties of the customer complaint clerk position. 

In a decision dated January 9, 2015, OWCP reduced appellant’s compensation effective 

January 11, 2015 based on her capacity to earn wages in the constructed position of customer 

complaint clerk.3

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.4

 Its burden of 

 3

 The first page of the decision actually indicates that the reduction was effective on January 11, 2014. This is a 

typographical error. An accompanying computation sheet reflects that the new rate was effective January 11, 2015. 

4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005). 
4

proof includes the necessity of furnishing rationalized medical opinion evidence based on a 

proper factual and medical background.5

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

capacity, or if the employee has no actual earnings, her wage-earning capacity is determined with 

due regard to the nature of her injury, her degree of physical impairment, her usual employment, 

her age, her qualifications for other employment, the availability of suitable employment and 

other factors and circumstances which may affect her wage-earning capacity in her disabled 

condition.6

 Wage-earning capacity is a measure of the employee’s ability to earn wages in the 

open labor market under normal employment conditions.7

 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.8

 The fact that an employee has been unsuccessful 

in obtaining work in the selected position does not establish that the work is not reasonably 

available in his or her commuting area.9

 In determining wage-earning capacity based on a constructed position, consideration is 

given to the residuals of the employment injury and the effects of conditions which preexisted 

the employment injury.10 In determining wage-earning capacity based on a constructed position, 

consideration is not given to conditions which arise subsequent to the employment injury.11 

 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 or to an OWCP wage-earning capacity specialist for selection of a position, listed in 

the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open 

labor 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 

the Shadrick decision will result in the percentage of the employee’s loss of wage-earning 

capacity.12

 5 Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

6 E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C. § 8115(a). 

7 Albert L. Poe, 37 ECAB 684, 690 (1986). 

8 Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See 

Glen L. Sinclair, 36 ECAB 664, 669 (1985). 

9 See Leo A. Chartier, 32 ECAB 652, 657 (1981). 

10 See Jess D. Todd, 34 ECAB 798, 804 (1983). 

11 N.J., 59 ECAB 397 (2008). 

12 See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Albert C. Shadrick, 5 ECAB 376 (1953). 
5

ANALYSIS 

In 2007 OWCP accepted appellant’s occupational disease claim for bilateral plantar 

fibromatosis and tarsal tunnel syndrome, and authorized multiple surgeries between 2009 and 

2012 including right foot plantar fascial, left foot fascial release, right foot tarsal tunnel release, 

left tarsal tunnel release, and right scar revision surgery. Appellant received disability 

compensation on the periodic rolls.13 She also had a claim accepted in 2009 for left medial 

epicondylitis, lesion of left ulnar nerve, left shoulder tendonitis, and left cubital syndrome. 

Appellant underwent left carpal tunnel release surgery in April 2012 which was authorized by 

OWCP. 

In early 2013, OWCP received information from an attending physician who found that 

appellant was not totally disabled for work and had a partial capacity to perform work for eight 

hours per day. Appellant’s vocational rehabilitation counselor determined that appellant was 

able to perform the position of customer complaint clerk and that state employment services 

showed the position was available in sufficient numbers so as to make it reasonably available 

within her commuting area. According to the Department of Labor’s Dictionary of Occupational 

Titles, the job duties of a customer complaint clerk involve investigating complaints about 

merchandise, service, billing, or credit ratings. It requires examining bills, computer printouts, 

bills of lading, and related documents and correspondence. It requires communicating or 

corresponding with customers and other company employees to evaluate those customer 

complaints. The customer complaint clerk position is sedentary and involves exerting up to 10 

pounds of force occasionally and sitting most of the time, but may involve walking or standing 

for brief periods of time.14 The customer complaint clerk position does not involve climbing, 

balancing, stooping, kneeling, crouching, or crawling. It does involve occasional reaching, 

handling, and fingering. 

Appellant’s vocational rehabilitation counselor is an expert in the field of vocational 

rehabilitation and OWCP may rely on her opinion regarding reasonable availability and 

vocational suitability.15 A review of the medical evidence of record reveals that appellant is 

physically capable of performing the position. The work restriction reports of attending 

physicians from 2014, including Dr. Merrill, a Board-certified family practitioner, show that 

appellant was capable of physically working as a customer complaint clerk. For example, 

Dr. Merrill indicated that appellant could engage in simple grasping and fine manipulation for up 

to four hours per day and could lift up to 15 pounds.16 Appellant did not submit any evidence or 

argument showing that he could not vocationally or physically perform the customer complaint 

clerk position. 

 13 Appellant also filed a claim that was accepted in 2002 for bilateral carpal tunnel syndrome and bilateral lateral 

epicondylitis. 

14 Occasionally performing an activity means that the activity is performed up to 1/3 of the time during the 

workday. 

15 G.A., Docket No. 13-1351 (issued January 10, 2014). 

16 In late 2014, Dr. Signorelli, an attending Board-certified foot and ankle surgeon, indicated that appellant’s work 

restrictions were accurately described by Dr. Merrill. 
6

 OWCP adequately considered factors, such as availability of suitable employment and 

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

determining that the position of customer complaint clerk represented her wage-earning 

capacity.17 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 such a position was reasonably available within the general labor market of her commuting 

area. Therefore, OWCP properly reduced her compensation effective January 9, 2015 based on 

her capacity to earn wages as a customer complaint clerk. 

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. 

CONCLUSION 

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

effective January 11, 2015 based on her capacity to earn wages in the constructed position of 

customer complaint clerk. 

ORDER 

IT IS HEREBY ORDERED THAT the January 9, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 15, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 See Clayton Varner, 37 ECAB 248, 256 (1985).