United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEPARTMENT OF THE ARMY, 

ALIASOLEN AIRPORT, Kuwait, Employer 

__________________________________________ 

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Docket No. 15-76 

Issued: March 9, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through his attorney, filed a timely appeal from the 

September 22, 2014 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 to review the merits of this case. 

ISSUE 

The issue is whether appellant has the wage-earning capacity of a clerk-typist. 

FACTUAL HISTORY 

On August 31, 2009 appellant, a 56-year-old safety and occupational health specialist, 

sustained a traumatic injury in the performance of duty when he stepped off a bus and twisted his 

left knee. OWCP accepted his claim for a left medial meniscus tear. 

 1

 5 U.S.C. § 8101 et seq.
2

Appellant underwent an arthroscopic partial medial meniscectomy and patellar 

chondroplasty with lateral release of the left knee. He received a schedule award for a 20 percent 

permanent impairment of his left lower extremity. In 2012, appellant underwent a left total knee 

arthroplasty. Thereafter, he received compensation for temporary total disability on the periodic 

rolls. 

Dr. J.M. Jeremy Anderson, the attending osteopath and orthopedic surgeon, found in 

August 2012 that appellant could probably return to a sedentary position “but I am not sure this 

is available to him.” A month later, however, he completed a return to work form indicating that 

appellant was not released to work. To clarify the matter, OWCP referred appellant to 

Dr. Douglas D. Porter, a Board-certified orthopedic surgeon, for a second opinion. 

On February 20, 2013 Dr. Porter reviewed appellant’s history and symptoms along with 

appellant’s medical records. He described his findings on physical examination and offered his 

diagnosis. Responding to questions posed by OWCP, Dr. Porter found that, while appellant 

could not return to his regular position as a safety and occupational health specialist, he could 

return to full-time work with restrictions based on his medical record review and current physical 

examination. He completed a work capacity evaluation detailing appellant’s limitations. 

Dr. Anderson reviewed Dr. Porter’s evaluation and agreed with the restrictions outlined. 

Based upon the medically determinable residuals of appellant’s injury, and taking into 

consideration all significant preexisting impairments and pertinent nonmedical factors, a 

vocational rehabilitation specialist found that appellant was able to perform the selected job of 

clerk-typist, a sedentary position. She performed a labor market survey and found that full-time 

jobs were being performed in sufficient numbers as to make them reasonably available to 

appellant within his commuting area. The vocational rehabilitation specialist confirmed through 

the Oregon Labor Market Information System that wages for such a position were $578.00 a 

week. It is noted that appellant’s mailing address is in Hermiston, Oregon. 

In a decision dated January 15, 2014, OWCP reduced appellant’s compensation for wage 

loss on the grounds that he was no longer totally disabled for work but rather had the capacity to 

earn wages as a clerk-typist, the physical requirements of which did not exceed his work 

restrictions. 

Counsel argued that the Department of Labor’s Dictionary of Occupational Titles, from 

which OWCP selected the clerk-typist position, was an antiquated and defunct publication. “The 

job identified in the decision [cannot] be shown to actually exist in the present economy.” 

Counsel argued that OWCP reduced appellant’s compensation based on a fiction, that OWCP 

should have used the Occupational Information Network or O*NET. 

In support of his claim, counsel submitted the first page of a May 24, 1990 

correspondence from OWCP indicating that appellant had sustained an injury on 

December 12, 1988. OWCP File No. xxxxxx147. 

During a telephonic hearing held on July 8, 2014 appellant testified that the 1988 injury 

involved his left wrist, for which he underwent surgery and received a schedule award. He could 

not remember the accepted condition and indicated that he had not received treatment for his left 
3

wrist for at least five years. Counsel asserted that the 1988 injury would impair appellant’s 

ability to work as a clerk-typist. He noted that OWCP did not consider this an industrial claim or 

preexisting condition. 

In a decision dated September 22, 2014, an OWCP hearing representative affirmed the 

January 15, 2014 loss of wage-earning capacity determination. She noted that electronic records 

indicated only that the claim for the December 12, 1988 injury was retired; it did not provide 

further information or a diagnosis of the accepted condition. Likewise, the evidence appellant 

submitted regarding the 1988 injury did not identify the accepted condition, and he submitted no 

current medical evidence establishing that he had a left wrist condition that rendered him 

incapable of performing the duties of the selected position. The hearing representative found 

that the position of clerk-typist was medically suitable to the established restrictions and that 

appellant had the qualifications to perform the selected position, which was reasonably available 

to him within his commuting area. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of his duty.2 “Disability” means the incapacity, 

because of an employment injury, to earn the wages the employee was receiving at the time of 

injury. It may be partial or total.3

The wage-earning capacity of an employee is determined by his or her actual earnings, if 

actual earnings fairly and reasonably represent his or her wage-earning capacity. If the actual 

earnings of the employee do not fairly and reasonably represent his wage-earning capacity, or if 

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, age, 

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.4

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation benefits.5

 When OWCP makes a medical determination of partial 

disability and of the specific work restrictions, it may refer the employee’s case 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 the 

employee’s capabilities in light of 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 

 2

 5 U.S.C. § 8102(a). 

3

 20 C.F.R. § 10.5(f). 

4

 5 U.S.C. § 8115(a). 

5 Harold S. McGough, 36 ECAB 332 (1984). 
4

service. Finally, application of the principles set forth in Albert C. Shadrick will result in the 

percentage of the employee’s loss of wage-earning capacity.6

ANALYSIS 

On February 20, 2013 Dr. Porter, the second opinion orthopedic surgeon, evaluated 

appellant and found that he could return to work with restrictions. Dr. Anderson, the attending 

osteopath, reviewed Dr. Porter’s evaluation and agreed with the restrictions outlined. 

Accordingly, there was no dispute that appellant had the capacity to perform a full-time job 

within the agreed upon physical restrictions. 

The vocational rehabilitation specialist found that appellant was able to perform the 

duties of a clerk-typist, which she selected from the Department of Labor’s Dictionary of 

Occupational Titles. The job was sedentary and consistent with appellant’s physical restrictions. 

Appellant does not assert that the clerk-typist position is outside his work restrictions. 

Rather, he argues that the Department of Labor’s Dictionary of Occupational Titles is outdated 

and defunct and that OWCP reduced his compensation based on a job that does not actually exist 

in the present economy. Despite appellant’s critiques of the Department of Labor’s Dictionary 

of Occupational Titles, the dispositive question is whether the selected position of clerk-typist 

was reasonably available to appellant.7

The vocational rehabilitation specialist conducted a labor market survey. She directly 

contacted the employing establishment in the labor market to investigate whether clerk-typist 

positions were available consistent with appellant’s skills and physical capabilities. The 

vocational rehabilitation specialist found that opportunities for appellant as an office clerk did, in 

fact, exist. Job duties generally included greeting customers, answering phones, and operating a 

computer and office equipment. More specific job duties were required by some of the 

employing establishments, such as accounting duties, processing mail, and handling cash. 

Further, the vocational rehabilitation specialist found that full-time clerk-typist positions are 

performed in sufficient numbers as to make them reasonably available to appellant within his 

commuting area. This information came from both the labor market survey and the Oregon 

Labor Market Information System. Therefore, it is found that employers hire office clerks in the 

present economy. Appellant attacks the Department of Labor’s Dictionary of Occupational 

Titles in general, but has offered no actual evidence to show that OWCP based its reduction of 

compensation on a fictional job. Such critique must fail without actual supportive evidence. 

Appellant also argues that OWCP did not consider a prior claim. After, he first raised the 

argument, the hearing representative considered this prior claim to the extent electronic records 

would allow. The hearing representative found no evidence that the unidentified accepted 

 6 Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. 

§ 10.403(d)-(e). 

7

 The job description for a clerk-typist includes: compiling data and operating a typewriter or computer in 

performance of routine clerical duties to maintain business records and reports; typing reports, business 

correspondence, application forms, shipping tickets, and other material; filing records and reports, posting 

information to records, sorting and distributing mail, answering a telephone; and performing similar duties. 
5

condition would prevent appellant from performing the duties of the selected position. Dr. Porter 

and Dr. Anderson agreed that appellant could return to work with restrictions and the physical 

demands of the selected position, which was a sedentary position, were consistent with those 

restrictions. 

Clearly, appellant’s August 31, 2009 work injury no longer totally disabled him for work. 

He had the capacity to earn wages in a position that complied with his physical restrictions. 

OWCP properly identified such a position in the open labor market, one that was reasonably 

available to appellant within his commuting area. For this reason, appellant was no longer 

entitled to compensation for total disability. The Board finds that OWCP has met its burden to 

justify the reduction of appellant’s compensation based on his capacity to earn wages in the 

selected position of clerk-typist. Accordingly, the Board will affirm OWCP’s 

September 22, 2014 decision. 

Appellant may request modification of the loss of wage-earning capacity determination, 

supported by new evidence or argument, at any time before OWCP. 

CONCLUSION 

The Board finds that appellant has the wage-earning capacity of a clerk-typist. 

ORDER 

IT IS HEREBY ORDERED THAT the September 22, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board