United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cross Plains, WI, Employer 

__________________________________________ 

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Docket No. 15-0368 

Issued: August 24, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 8, 2014 appellant, through counsel, filed an appeal from a June 11, 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 over the merits of this case. 

ISSUE 

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

benefits based on his capacity to earn wages in the constructed position of data entry operator 

clerk. 

On appeal, counsel asserts that the June 11, 2014 decision is contrary to fact and law. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On March 20, 2009 appellant, then a 54-year-old part-time flexible clerk, fractured his 

right fibula when he slipped on a sunken piece of concrete. OWCP accepted closed fracture of 

tibia and fibula, right. Appellant was placed in a cast and returned to part-time modified duty on 

June 13, 2009. He stopped work in October 2009 when Dr. Christopher P. Dale, Board-certified 

in orthopedic surgery, performed arthroscopic debridement. Appellant returned to modified duty 

on December 14, 2009. He had additional surgery on August 11, 2010 and returned to modified 

duty in October 2010.2

 Appellant continued work until December 2010 when he was dismissed 

under the National Reassessment Process. He thereafter received total disability compensation 

and was placed on the periodic compensation rolls. 

An August 24, 2011 functional capacity evaluation demonstrated that appellant had the 

capacity to work for approximately four hours a day with job site modifications, such as 

performing tasks from a seated position with a lifting restriction of 20 pounds. 

In December 2012, appellant was referred for vocational rehabilitation. He was separated 

from the employing establishment effective February 8, 2013 due to disability. In a February 4, 

2013 report, Stephen H. Porter, Ph.D., a vocational rehabilitation counselor, advised that 

appellant, who lived in the greater Madison, Wisconsin, metropolitan area, had earned an 

associate arts degree in 1981 and took additional college courses. Appellant’s job history 

included an eight-year history as a full-time deputy sheriff from 1986 to 1994 and as a real estate 

sales agent. Regarding transferable skills, Mr. Porter stated that, while appellant had completed 

extensive post-high school education and training, he did not possess a degree, diploma, 

certification, or endorsement that would readily transfer into another occupational field. He 

considered several occupations as meeting appellant’s requirements, including that of data entry 

operator clerk, stating that it was semiskilled. 

Dr. Dale completed a work capacity evaluation on February 21, 2013. He indicated that 

appellant could sit, reach, perform repetitive movements, push, and pull for eight hours daily, 

could walk, stand, and twist for two hours daily, could bend and stoop for one hour daily, and 

could never squat, kneel, or climb. Dr. Dale could operate a motor vehicle to and from and at 

work. In answer to specific OWCP questions, he diagnosed ankle arthritis caused by the 

employment injury and advised that the condition was permanent with pain and decreased 

motion. Dr. Dale advised that appellant could work at a sit-down, sedentary position. 

In reports dated March 8, 2013, Mr. Porter indicated that appellant informed him that he 

did not intend to cooperate with a sincere job search. The rehabilitation counselor identified the 

positions of telephone solicitor Department of Labor’s Dictionary of Occupational Titles (DOT), 

(DOT No. xxxxxx014), dispatcher motor vehicles (DOT No. xxxxxx014), and data entry 

operator clerk (DOT No. xxxxxx054) as within appellant’s sedentary physical limitations. He 

advised that the positions were reasonably available in the local labor market at entry-level 

weekly wages of $426.00, $729.00, and $558.00 respectively. 

 2

 By decision dated March 17, 2010, OWCP denied appellant’s claim for compensation for the one day, 

December 1, 2009, because the medical evidence did not support the claimed time off that day. 
3

On March 18, 2013 OWCP informed appellant that the job duties of the selected 

positions were within his limitations and informed him of the consequences of failure to 

cooperate. It further advised that at the end of a 90-day placement period, whether he was 

actually employed or not, OWCP would reduce his compensation based on his ability to earn 

wages of $426.00 to $729.00. On April 1, 2013 appellant informed Mr. Porter that he did not 

intend to search for a job and was contemplating retirement. Rehabilitation services were closed 

in May 2013.3

 

By letter dated August 29, 2013, OWCP proposed to reduce appellant’s compensation 

benefits based on his capacity to earn wages as a data entry operator clerk 

(DOT No. xxxxxx054). Based on the opinion of Dr. Dale, it found that appellant could return to 

an eight-hour workday and that the date entry operator clerk position was within the restrictions 

provided by Dr. Dale. OWCP further noted that the labor market survey prepared by the 

rehabilitation counselor confirmed that the position was reasonably available in the local labor 

market and that the entry level weekly wage was $558.00. 

The August 29, 2013 notice stated that the claim was accepted for closed fracture of tibia 

and fibular shaft, right; fracture of ankle unspecified, closed, right; pain in joint, ankle, and foot, 

right; and sprain of knee, lateral collateral ligament, right. The duties of the data entry operator 

clerk position were described in the Department of Labor’s Dictionary of Occupational Titles as: 

operates keyboard or other data entry device to enter data into computer or onto magnetic tape or 

disc for subsequent entry; enters alphabetic, numeric, or symbolic data from source documents 

into computer, using data entry device, such as keyboard or optical scanner; and following 

format displayed on screen. Compares data entered with source documents or reenters data in 

verification format on screen to detect errors. Deletes incorrectly entered data and reenters 

correct data. May compile, sort, and verify accuracy of data to be entered. May keep record of 

work completed. It had a sedentary strength level and did not require climbing, balancing, 

stooping, kneeling, crouching, or crawling. The position required the specific vocational 

preparation (SVP) at a level of four, and educational development a level of three for reasoning, 

two for mathematics, and three for language development. OWCP noted in a transferable skills 

analysis that appellant had worked in jobs that have required an SVP of four which is three to six 

months experience. Appellant had extensive work experience beyond high school and that he 

should be able to work in a job with an SVP of four. OWCP found him very qualified for this 

position based upon his work history and education level. Specifically, appellant’s work history 

included positions requiring professional and technical skills. He also had an associate’s degree. 

Appellant did not respond to the notice of proposed reduction. By decision dated 

October 3, 2013, OWCP reduced his compensation benefits based on his capacity to earn wages 

as a data entry operator clerk, effective October 20, 2013. By utilizing the Shadrick formula, it 

 3

 The record indicates that a third-party claim had been filed regarding appellant’s injury. A recovery statement 

was completed and signed by him on August 1, 2013. 
4

found that appellant had a 46 percent loss of wage-earning capacity.4

 Appellant, through 

counsel, timely requested a hearing. 

At the hearing, held on April 11, 2014, counsel noted that the October 3, 2013 decision 

found appellant capable of performing the duties of “security guard.” He further asserted that the 

DOT was antiquated and no longer valid, and that appellant was not vocationally capable of 

performing the duties of the data entry operator clerk position because he had no training in 

computer entry. Appellant testified regarding his job history, including as a deputy sheriff from 

1982 to 1994 and as an acting postmaster on two occasions. He stated that he had a laptop 

computer that he used for internet searches, e-mail, and to look at photographs from his camera, 

but he stated that he had never used a computer at work and had never had computer training. 

In a June 11, 2014 decision, an OWCP hearing representative affirmed the October 3, 

2013 decision. He found that, as for vocational suitability, appellant had previously obtained an 

associate’s degree, and his prior work history included work in such capacities that required 

greater technical and professional skills than the selected data entry operator clerk position 

required. 

LEGAL PRECEDENT 

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

modification of compensation benefits.5 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 on loss of 

wage-earning capacity.6 

Section 8115 of FECA and OWCP regulations provide that 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 the employee has no actual earnings, the 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 or circumstances which may affect his or 

her wage-earning capacity in the disabled condition.7

 

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 

 4

 The Board notes that, in its conclusion, the October 3, 2013 decision contains a typographical error indicating 

that the selected position was “security guard.” A review of the decision, however, indicates that the position 

selected was that of data entry operator clerk. 

5 James M. Frasher, 53 ECAB 794 (2002). 

6

 20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004). 

7

 5 U.S.C. § 8115; id. at § 10.520; John D. Jackson, id. 
5

medical evidence upon which OWCP relies must provide a detailed description of the condition.8

 

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

reasonably current medical evaluation.9

 

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 for selection of a position listed in the Department of Labor’s Dictionary of 

Occupational Titles or otherwise available in the open market, that fits that employee’s 

capabilities with regard to his or her 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.10 Finally, application of the principles set forth in Albert C. Shadrick,

11 as codified in 

section 10.403 of OWCP regulations,12 will result in the percentage of the employee’s loss of 

wage-earning capacity.13 

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

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.14 

ANALYSIS 

OWCP issued its October 3, 2013 wage-earning capacity determination based on 

appellant’s ability to work as a data entry operator clerk. Before making that determination, 

OWCP must determine a claimant’s medical condition and work restrictions and then select an 

appropriate position that reflects his or her wage-earning capacity. The medical evidence used 

by OWCP must provide a detailed description of appellant’s condition.15 In a February 21, 2013 

work capacity evaluation, Dr. Dale advised that appellant could sit, reach, perform repetitive 

movements, push, and pull for eight hours daily; could walk, stand, and twist for two hours daily; 

could bend and stoop for one hour daily; and could never squat, kneel, or climb. He stated that 

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

9 John D. Jackson, supra note 6. 

10 Supra note 5. 

11 5 ECAB 376 (1953). 

12 20 C.F.R. § 10.403. 

13 Supra note 5. 

14 John D. Jackson, supra note 6. 

15 Supra note 8. 
6

appellant’s condition was permanent and that he could work at a sit-down, sedentary position. 

The position selected is sedentary, and its physical requirements and within the restrictions 

provided by Dr. Dale are within appellant’s restrictions. The Board finds appellant has the 

physical capacity to perform the duties of the selected position.16 

The Board finds that appellant had the necessary vocational and educational preparation 

for the selected position of data entry operator clerk. Appellant has considerable job experience, 

a post-high school degree, and a functional knowledge of computers, based on his personal use. 

He has successfully performed in jobs that required preparation and training. Appellant made a 

choice not to complete actual vocational rehabilitation. This left OWCP without the option to 

further train him in the details of a suitable constructed position. 

The vocational rehabilitation counselor advised that the position of data entry operator 

clerk was reasonably available in the local labor market with an entry level weekly wage of 

$558.00. The Boards finds that OWCP correctly evaluated the relevant evidence, including the 

SVP level of the proposed job.17

OWCP considered the appropriate factors and correctly determined that the position of 

data entry operator clerk represented appellant’s wage-earning capacity.18 These factors include 

availability of suitable employment and his physical limitations, usual employment, age and 

employment qualifications.19 OWCP therefore properly determined that the position of data 

entry operator clerk reflected his wage-earning capacity and, using the Shadrick formula,20 and 

properly reduced his compensation on October 20, 2013.21 

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

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

CONCLUSION 

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

benefits based on his capacity to earn wages in the constructed position of data entry operator 

clerk. 

 16 Id. 

17 The SVP value of a given job merely one factor among several and should not be given disproportionate 

importance if other aspects of a claimant’s work experience, education, and medical condition indicate that claimant 

is qualified. 

18 John D. Jackson, supra note 6. 

19 Id.

20 20 C.F.R. § 10.403. See supra note 11 

21 James Smith, 53 ECAB 188 (2001). 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 11, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 24, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board