United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

INSPECTIONS OPERATIONS PROGRAM, 

Brawley, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-161 

Issued: May 13, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 26, 2013 appellant filed a timely appeal from an October 11, 2013 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 properly reduced appellant’s compensation effective 

October 31, 2013, based on his wage-earning capacity to perform the duties of a customer 

complaint clerk. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 31, 2011 appellant, a 53-year old food inspector, filed a Form CA-2 claim for 

benefits, alleging that he developed a bilateral carpal tunnel condition causally related to 

employment factors. OWCP accepted the claim for bilateral carpal tunnel syndrome. 

Compensation for temporary total disability began on February 8, 2011. 

In a report dated June 16, 2011, Dr. Carrie Beaty, a specialist in internal medicine, 

advised that appellant had been diagnosed with moderate to severe bilateral carpal tunnel 

syndrome, which resulted in pain and numbness in his hands. She stated that he was currently 

awaiting carpal tunnel release surgery to ameliorate this condition. Dr. Beaty asserted that any 

repetitive wrist action would worsen appellant’s pain; she recommended that reasonable 

accommodations be made for appellant to allow him to do work which did not require using 

knives or any other repetitive wrist action that would worsen his condition. 

In order to determine appellant’s condition, OWCP referred him for a second opinion 

examination with Dr. Gary K. Frykman, a specialist in orthopedic hand surgery. In a February 7, 

2012 report, Dr. Frykman stated that appellant continued to have pain, numbness and weakness 

in both hands in addition to gout, which could contribute to the development of carpal tunnel 

syndrome. He also asserted that appellant had sensory loss in the fingertips of both hands and 

marked weakness of grip due to his condition. Dr. Frykman advised that due to appellant’s 

repetitive work activity he would probably require surgery. Dr. Frykman was uncertain as to 

whether appellant could eventually return to his usual job as a food inspector. He restricted 

appellant from forceful and repetitive lifting, gripping or twisting activities with either wrist or 

hand due to weakness and sensory loss but advised that he could function well in daily activities 

with no other limitations. 

In a work capacity evaluation dated February 7, 2012, Dr. Frykman indicated that 

appellant could work an eight-hour day with restrictions on repetitive movements of the wrists 

and elbows for no more than two hours; pushing not exceeding 10 pounds for no more than two 

hours; pulling not exceeding 10 pounds for no more than two hours; and lifting not exceeding 10 

pounds for no more than two hours. 

On March 1, 2012 OWCP referred appellant for vocational rehabilitation services, based 

on Dr. Fryman’s February 7, 2012 report. 

In reports dated February 11, 20 and 25, 2013, a vocational rehabilitation counselor 

summarized his efforts to find vocational training or suitable alternate employment for appellant 

within his indicated restrictions. The vocational counselor recommended a position for appellant 

listed in the Department of Labor’s Dictionary of Occupational Titles, (DOT) customer 

complaint clerk, DOT No. 247.361-014, within his indicated restrictions and reasonably reflected 
3

his ability to earn wages.2 She also opined that he had the vocational and work history, 

education, skills and training to qualify for job openings in this occupation. The vocational 

rehabilitation counselor stated that there were a number of customer complaint clerk jobs within 

a reasonable commuting distance. She advised that appellant had a significant level of 

professional supervisory and management experience, which were transferrable to the selected 

position. Appellant was informed that he would receive 90 days of placement assistance to help 

him locate work in this position, provided that he cooperated. She also advised him that his 

compensation would be reduced based upon the salary of the selected positions at the end of the 

90-day placement assistance period. 

In a report dated May 7, 2013, the rehabilitation counselor indicated that appellant was 

reluctant to fully participate in job search activities. Appellant advised that he had accepted a 

position with an insurance company on May 3, 2013. In e-mails dated June 3, 2013, however, he 

advised that he was seeking employment independently and studying to obtain a California State 

insurance license. 

On June 14, 2013 the vocational rehabilitation counselor terminated placement assistance 

efforts and vocational rehabilitation services. In several memorandums she indicated that 

appellant had not fully participated in placement efforts. Appellant spent most of his time 

studying for insurance license and seeking employment with private insurance firms. 

In a telephone call dated July 9, 2013, appellant advised OWCP that he had been hired by 

an insurance company in California with the condition that he pass and obtain his California 

State insurance license; he subsequently obtained this license. He stated, however, that while he 

was currently in training the position did not provide for full-time base pay or salary and he was 

currently not receiving any earnings; the job was commission-based with an advance based on 

projected sales. 

By notice of proposed reduction dated July 10, 2013, OWCP advised appellant of its 

proposal to reduce his compensation because the factual and medical evidence established that 

he was no longer totally disabled and that he had the capacity to earn wages as a customer 

complaint clerk, DOT No. 247.361-014, at the rate of $360.00 per week, in accordance with the 

 2

 The job description for the customer complaint clerk position indicated that appellant would have the following 

duties: “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 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 [t]racer [c]lerk (clerical). May investigate 

overdue and damaged shipments or shortages in shipments for common carrier and be designated [o]ver-[s]hort-

[a]nd-[d]amage [c]lerk (clerical). May be designated according to type of complaint adjusted as [b]ill [a]djuster 

(clerical); [m]erchandise-[a]djustment [c]lerk (retail trade); [s]ervice [i]nvestigator (utilities; tel. & tel.).” 
4

factors outlined in 5 U.S.C. § 8115.3 It calculated that his compensation rate should be adjusted 

to $481.77 using the Shadrick4

 formula. OWCP found that appellant’s current adjusted 

compensation rate, every four-week period, was $379.00, that the case had been referred to a 

vocational rehabilitation counselor, who had located a position as a customer complaint clerk, 

which he found to be suitable for appellant given his work restrictions and was available in 

appellant’s commuting area. It allowed appellant 30 days in which to submit any contrary 

evidence. 

In an October 11, 2013 decision, OWCP reduced appellant’s compensation to a new 

compensation rate of $337.00 every four weeks. It modified the July 10, 2013 proposed 

termination in part, finding that it contained a typographical error, which stated that he had a 

compensation rate per week of $360.00 for the selected position of customer complaint clerk. 

OWCP found that the actual, corrected rate for a customer complaint clerk was $480.00 per 

week based on his capacity to earn $480.00 per week. It concluded that appellant had an 80 

percent wage-earning capacity and was therefore entitled to compensation at the rate of $337.00 

every four weeks. 

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 justifying a subsequent 

reduction of benefits.5

Section 8115(a) of FECA6

 provides that, in determining compensation for partial 

disability, the wage-earning capacity of an employee is determined by his actual earnings if his 

or her actual earnings fairly and reasonably represent his or her wage-earning capacity.7 

Generally, wages actually earned are the best measure of a wage-earning capacity and in the 

absence of showing that they do not fairly and reasonably represent the injured employee’s 

wage-earning capacity, must be accepted as such a measure.8 

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

employee has no actual earnings, his or her wage-earning capacity is determined with due regard 

to the nature of his or her injury, the degree of physical impairment, his or her usual 

employment, his or her age, his or her qualifications for other employment, the availability of 

 3

 5 U.S.C. § 8115. 

4 Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.2 (April 1995). 

5 Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28 ECAB 43 (1976). 

6

 5 U.S.C. § 8115(a). 

7 Id.; Loni J. Cleveland, 52 ECAB 171, 177 (2000). 

8 Lottie M. Williams, 56 ECAB 302 (2005); see Edward Joseph Hanlon, 8 ECAB 599 (1956). 
5

suitable employment and other factors or circumstances which may affect his or her wageearning capacity in his or her disabled condition.9

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

labor market under normal employment conditions given the nature of the employee’s injuries 

and the degree of physical impairment, his or her usual employment, the employee’s age and 

vocational qualifications and the availability of suitable employment.10 Accordingly, the 

evidence must establish that jobs in the position selected for determining wage-earning capacity 

are reasonably available in the general labor market in the commuting area in which the 

employee lives.11

ANALYSIS 

Dr. Frykman indicated in his February 7, 2012 report that appellant could perform work 

for eight hours per day with restrictions on forceful and repetitive lifting, gripping or twisting 

activities with either wrist or hand due to weakness and sensory loss; these stemmed from his 

accepted bilateral carpal tunnel condition. The February 7, 2012 work capacity evaluation stated 

that appellant could work an eight-hour day with restrictions on repetitive movements of the 

wrists and elbows for no more than two hours; pushing not exceeding 10 pounds for no more 

than two hours; pulling not exceeding 10 pounds for no more than two hours; and lifting not 

exceeding 10 pounds for no more than two hours. Dr. Frykman indicated that appellant could 

function well in daily activities with no other limitations. The rehabilitation counselor assigned 

to assist appellant in placement efforts identified a position as a customer complaint clerk listed 

in the Department of Labor’s Dictionary of Occupational Titles, appropriate for appellant based 

on Dr. Frykman’s work restriction evaluation. The physical requirements of this position was 

within and did not exceed the work restrictions outlined in Dr. Frykman’s February 7, 2012 

report. 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 geographical commuting area in which the employee lived, as confirmed by state 

officials. 

While appellant informed OWCP on July 9, 2013 that he had obtained a position in the 

insurance industry, he also indicated that he was in training and was not earning any wages. As 

he did not have any actual earnings, OWCP properly proceeded to determine his wage-earning 

capacity based upon a selected position. 

OWCP properly applied the principles set forth in the Shadrick12 decision to determine 

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

 9

 5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, 55 ECAB 465, 471 (2004); Robert H. Merritt, 11 ECAB 

64, 65 (1959). 

10 Samuel J. Chavez, 44 ECAB 431 (1993); see 5 U.S.C. § 8115(a); A. Larson, The Law of Workers’ 

Compensation § 57.22 (1989); Hattie Drummond, 39 ECAB 904 (1988). 

11 Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984). 

12 Shadrick, supra note 4. 
6

compensation rate should be adjusted to $337.00 every four weeks using the Shadrick formula. 

OWCP indicated that appellant’s salary as of January 29, 2011, the date he stopped working, was 

$602.21 per week, that his current, adjusted pay rate for his job on the date of injury was $602.21 

and that he was currently capable of earning $480.00 per week, the rate of a customer complaint 

clerk. It therefore determined that appellant had an 80 percent wage-earning capacity, which 

when multiplied by 2/3 amounted to a weekly compensation rate, with cost-of-living adjustments 

to $84.25. OWCP found that his current adjusted compensation rate, per four-week period, was 

$337.00. 

OWCP properly found that appellant was no longer totally disabled as a result of his 

accepted condition and it followed established procedures for determining his employmentrelated loss of wage-earning capacity. The Board therefore finds that OWCP met its burden of 

justifying a reduction in his compensation for total disability in its October 11, 2013 decision. 

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation effective 

October 11, 2013, based on his capacity to perform the duties of a customer complaint clerk. 

ORDER 

IT IS HEREBY ORDERED THAT the October 11, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 13, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board