United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Benicia, CA, Employer 

__________________________________________ 

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Docket No. 14-1016 

Issued: October 6, 2014 

Appearances: Case Submitted on the Record 

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On March 31, 2014 appellant, through her attorney, filed a timely appeal from a 

February 24, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) 

regarding a loss of wage-earning capacity determination. 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 benefits effective 

July 28, 2013 based on her capacity to earn wages in the constructed position of receptionist. 

FACTUAL HISTORY 

OWCP accepted that appellant, then a 51-year-old letter carrier, sustained bilateral 

collateral ligament strains and aggravation of bilateral lower leg osteoarthritis while in the 

 

 1 5 U.S.C. § 8101 et seq.
2

performance of duty. It authorized left total knee arthroplasty surgery performed on 

July 26, 2005. Appellant returned to full-time modified duty on November 29, 2005. In a 

November 25, 2008 decision, OWCP granted her a schedule award for 50 percent impairment of 

the left lower extremity. 

On January 27, 2010 the employing establishment sent appellant home because it could 

no longer accommodate her physical restrictions. Appellant received compensation for total 

disability. On January 13, 2011 she was referred for vocational rehabilitation services. 

By letter dated June 3, 2011, OWCP referred appellant, together with a statement of facts 

and the case record, to Dr. J. Hearst Welborn, Jr., a Board-certified orthopedic surgeon, for a 

second opinion to assess her work capacity for vocational rehabilitation purposes. In a June 27, 

2011 medical report, Dr. Welborn reviewed the history of injury and appellant’s medical 

treatment. He noted her complaints of bilateral knee and back pain. Dr. Welborn provided 

findings on physical examination and the history of left knee replacement, right knee arthritis 

and lateral collateral ligament sprain and strain. He advised that appellant continued to suffer 

residuals of the accepted bilateral knee arthritis. Appellant had continued left knee pain after her 

left knee replacement. She also had continued lateral collateral ligament laxity and tenderness at 

the medial joint in the left knee. Dr. Welborn advised that appellant was able to participate in 

vocational rehabilitation and could perform light work as outlined by the Department of Labor’s 

Dictionary of Occupational Titles (DOT). He stated that her work-related physical imitations 

were no lifting more than 20 pounds or standing more than one hour at a time. In a June 28, 

2011 work capacity evaluation (Form OWCP-5c), Dr. Welborn stated that appellant could not 

perform her usual job. Appellant could work eight hours a day with restrictions which included 

walking and standing four hours a day, pushing, pulling and lifting 20 pounds, two hours a day, 

squatting, kneeling and climbing with 20 pounds, one hour a day, and no bending or stooping. 

Dr. Welborn concluded that she had reached maximum medical improvement. 

On January 6, 2012 OWCP referred appellant for vocational rehabilitation services. 

Appellant met with Kim Page, a vocational rehabilitation counselor on January 25, 2012. 

Ms. Page noted that appellant had a General Education Diploma (GED). Appellant took classes 

over the years at Diablo Valley College; however, they were strictly personal interest classes and 

she did not receive any certificates or degrees. Ms. Page noted appellant’s employment history 

included working as a letter carrier at the employing establishment. Appellant also worked for a 

school district in a library aid position which involved returning books to shelves and stamping 

in new materials. Ms. Page stated that appellant’s transferrable skills included, mail handling 

and sorting, customer service and basic keyboarding. She scheduled a one-day evaluation of 

appellant at the Center for Career Evaluations (CCE). In reports dated February 15 and 25, 

2012, Ms. Page advised that the results of the CCE test performed on February 14, 2012 revealed 

average nonverbal reasoning skills, 4.9 math skills, 12.4 reading skills and ability to type eight 

words a minute. Appellant stated that she could type more words a minute. She underwent a 

transferrable skills analysis which revealed that she could perform customer service work. 

Appellant wanted to work as a receptionist or customer clerk. Ms. Page stated that she was 

motivated to return to work as she was not financially or mentally ready to retire. Appellant 

needed a short training program to learn basic computer skills. Ms. Page noted that a training 

center was located near her home. She believed that appellant would be very successful in this 

endeavor. 
3

On February 21, 2012 Ms. Page determined that appellant could be reemployed as a 

receptionist. The duties of the receptionist position listed in the Department of Labor’s DOT

required receiving callers at the establishment; determining the nature of business and directing 

callers to destination; obtaining callers’ name and arranging for appointment with person called 

upon; directing callers to destination and recording name, time of call, nature of business and 

person called upon. The duties of the position may require operating private branch exchange 

telephone console to receive incoming messages; typing memos, correspondence, reports and 

other documents; working in office of medical practitioner or in other health care facility and be 

designated outpatient receptionist (medical services) or receptionist, doctor’s office (medical 

services); issuing visitor’s pass when required; making future appointments and answering 

inquiries [information clerk (clerical) 237.367-022]; performing variety of clerical duties 

[administrative clerk (clerical) 219.362-010] and other duties pertinent to type of establishment; 

and collecting and distributing mail and messages. The job required a GED. The position was 

classified as sedentary with no climbing, balancing, stooping, kneeling, crouching, crawling, 

feeling, tasting, smelling, far acuity, depth perception, color vision or field of vision. The 

position required frequent reaching, handling, talking and hearing and occasional fingering. The 

strength level was listed as sedentary, which involved occasional lifting of 10 pounds. Ms. Page 

determined that appellant would meet the specific vocational preparation in three to six months 

by acquiring the needed computer skills from the proposed training. Appellant already possessed 

customer service skills. Ms. Page stated that labor market research showed full-time receptionist 

positions available in appellant’s commuting area and that the weekly wage was $480.00. She 

stated that “E.D.D.” reported that entry level wages were $11.56 per hour. 

On July 27, 2012 appellant completed an introduction to computers course. 

An August 16, 2012 memorandum of conference with appellant, Ms. Page and an OWCP 

claims examiner noted that she was unable to find a receptionist position. In reports dated 

September 25 and October 25, 2012, Ms. Page noted appellant’s inability to obtain a receptionist 

position. 

A January 10, 2013 report signed by Joan Hart, a nurse practitioner from the office of 

Dr. John Knight, a Board-certified orthopedic surgeon, stated that appellant could perform parttime sedentary work up to six hours a day with no lifting over 20 pounds, no prolonged bending, 

stooping or squatting and a frequent change of position every hour. 

On March 11, 2013 OWCP determined that there was a conflict in medical opinion 

between Dr. Welborn and Dr. Knight regarding appellant’s work capacity. By letter dated 

April 5, 2013, it referred her, together with a statement of accepted facts and the case record, to 

Dr. Roger D. Dainer, a Board-certified orthopedic surgeon, for an impartial medical evaluation. 

In an April 29, 2013 report, Dr. Dainer reviewed a history of the accepted employment 

injury and appellant’s family, social and employment background, the medical records and 

vocational rehabilitation reports. He provided a detailed review of the medical record. 

Dr. Dainer noted appellant’s current complaints of pain in both knees at the medial aspect that 

increased with prolonged standing and walking for greater than one hour. Appellant had 

significant difficulty with kneeling, squatting and climbing activities. She also had occasional 

swelling. On physical examination, Dr. Dainer reported that appellant was not in any acute 
4

distress. She ambulated with a cane for balance. On examination of the lower extremities, 

Dr. Dainer found that the right calf was 47 centimeters and the left was 50 centimeters. Range of 

motion measurements for the right knee included 0 degrees of extension and 105 degrees of 

flexion. There was generalized tenderness medially. There is no gross swelling. A ligamentous 

examination appeared to be stable. Range of motion measurements for the left knee included 0 

degrees of extension and 100 degrees of flexion. There was tenderness over the medial aspect. 

There is no joint swelling. The knee was ligamentously stable. There was a well-healed surgical 

scar. The distal neurovascular examination appeared to be normal. 

Dr. Dainer diagnosed degenerative arthritis of the bilateral knees. He opined that 

appellant was unable to perform her usual and customary occupation as a letter carrier due to her 

inability to walk and stand for prolonged periods, kneel, squat, climb or lift greater than 20 

pounds based on her left total knee arthroplasty and current restricted range of motion in both 

knees associated with degenerative arthritis still present on the right side and generalized pain 

involving both knees. Dr. Dainer reviewed the description of the duties for the order clerk and 

receptionist positions and opined that she was capable of performing the duties based on his 

evaluation of her knees and review of the record. He listed appellant’s work-related physical 

limitations which precluded her from any kneeling, squatting, prolonged walking or standing 

greater than one hour, repetitive stair climbing or lifting greater than 20 pounds. Dr. Dainer 

concluded that she could work eight hours a day. 

By letter dated May 29, 2013, OWCP proposed to reduce appellant’s monetary 

compensation benefits based on Dr. Dainer’s opinion which established her capacity to earn 

wages as a receptionist. 

In an undated report, Dr. Knight diagnosed degenerative disc pain in the lumbar spine. 

He advised that appellant’s status had worsened and she was temporarily totally disabled. 

In a July 15, 2013 decision, OWCP reduced appellant’s wage-loss benefits effective 

July 28, 2013, based on her capacity to earn wages as a receptionist. It applied the principles in 

Albert C. Shadrick,

2

 to find a wage-earning capacity of 40 percent and accordingly reduced her 

compensation. 

By letter dated July 22, 2013, appellant, through her attorney, requested a telephone 

hearing with an OWCP hearing representative. 

In reports dated July 8 and 25, 2013, Dr. Knight evaluated appellant’s chronic back pain 

and diagnosed lumbar degenerative disc disease. In a January 6, 2014 report, he advised that her 

status was unchanged. Dr. Knight noted that appellant had retired. 

In a May 31, 2013 magnetic resonance imaging (MRI) lumbar scan report, Dr. R. Craig 

Platenberg, a Board-certified radiologist, found transitional vertebral body anatomy with partial 

sacralization of L5 on S1, right greater than left. He also found 10 percent bilateral foraminal 

narrowing at L4-5 with no nerve root contact or compromise. 

 2

 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d). 
5

In a February 24, 2014 decision, an OWCP hearing representative affirmed the July 15, 

2013 decision. She found that appellant failed to submit any factual or medical evidence to 

establish that the constructed receptionist position was medically, vocationally or educationally 

unsuitable. 

LEGAL PRECEDENT 

Section 8115 of FECA3

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

OWCP must initially determine the employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her vocational wage-earning 

capacity.4

 The medical evidence OWCP relies upon must provide a detailed description of the 

employee’s condition and the evaluation must be reasonably current.5

 Where suitability is to be 

determined based on a position not actually held, the selected position must accommodate the 

employee’s impairment from both injury-related and preexisting conditions, but not impairment 

attributable to post-injury or subsequently acquired conditions.6

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 DOT or otherwise 

available in the open market, that fits that employee’s capabilities with regard to 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. Finally, application of the principles set forth in

Shadrick7 will result in the percentage of the employee’s loss of wage-earning capacity. The 

basic rate of compensation paid under FECA is 66 2/3 percent of the injured employee’s monthly 

pay.8

 3

 5 U.S.C. §§ 8101-8193, 8115. 

4 M.A., 59 ECAB 624, 631 (2008). 

5 Id. 

6 N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: 

Determining Wage-Earning Capacity, Chapter 2.814.8d (October 2009). 

7 Supra note 3; 20 C.F.R. § 10.403. 

8 Karen L. Lonon-Jones, 50 ECAB 293 (1999). 
6

ANALYSIS 

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

compensation benefits based on her capacity to earn wages in the selected position of 

receptionist. 

OWCP accepted that appellant sustained bilateral collateral ligament strains and 

aggravation of bilateral lower leg osteoarthritis while in the performance of duty. It determined 

that the selected position of receptionist represented her wage-earning capacity. To be an 

appropriate position for a loss of wage-earning capacity determination under 5 U.S.C. § 8115(a) 

the position must be medically and vocationally suitable. The evidence must also properly 

document the position’s availability and the wages and OWCP must follow established 

procedures before reducing appellant’s wage-loss compensation. 

With respect to the issue of medical suitability of the selected position, OWCP relied on 

the report of the impartial medical specialist, Dr. Dainer. The Board finds, however, that there 

was no conflict of medical evidence between, Dr. Knight, an attending physician, and 

Dr. Welborn, an OWCP referral physician, at the time of OWCP’s referral to Dr. Dainer for an 

impartial medical opinion. The January 10, 2013 report finding that appellant could only work 

six hours a day with restrictions was signed by Ms. Hart, a nurse practitioner from Dr. Knight’s 

office, and not by Dr. Knight. As a nurse practitioner is not a physician as defined under FECA,9

Ms. Hart’s report has no probative value to establish the medical suitability of the constructed 

receptionist position. 

Therefore, there was no conflict of medical evidence at the time of referral to Dr. Dainer. 

The Board finds that, although Dr. Dainer’s April 29, 2013 report is not entitled to the special 

weight afforded to the opinion of an impartial medical specialist, his report can still be 

considered as a second opinion.10

Dr. Dainer restricted appellant from any kneeling, squatting, prolonged walking or 

standing greater than one hour, repetitive stair climbing and lifting more than 20 pounds. He 

stated that she could work eight hours a day with these restrictions. Dr. Dainer reviewed a 

description of the constructed receptionist position and advised that appellant could perform the 

duties of the position. 

The selected position of receptionist is a sedentary position requiring occasional lifting of 

10 pounds. The physical requirements are within the restrictions provided by Dainer. The Board 

finds that Dr. Dainer’s April 29, 2013 report is entitled to the weight of the medical evidence and 

establishes that appellant could physically perform the duties of the selected position. 

Dr. Dainer provided a detailed, clear history of injury and medical treatment, detailed findings on 

examination and explained the basis for his opinion. 

 9

 5 U.S.C. § 8101(2); see also, M.B., Docket No. 12-1695 (issued January 29, 2013). 

10 R.C., Docket No. 09-2217 (issued September 8, 2010). 
7

The Board also finds that the selected position of receptionist was vocationally suitable. 

The specific vocational preparation required for the position was three to six months. Ms. Page, 

the vocational rehabilitation counselor, found that appellant met this requirement as she had a 

GED and experience as a letter carrier and library aid. She also found that the results of a 

transferrable skills analysis test showed that appellant could perform customer service work. 

Appellant completed an introductory computer course. Ms. Page conducted a labor market 

survey which revealed that the receptionist job was being performed in sufficient numbers as to 

make it reasonably available to appellant within her commuting area and the weekly wage was 

$480.00 and $11.56 per hour for an entry level position. The counselor is an expert in the field 

of vocational rehabilitation. OWCP may rely on his or her opinion as to whether the job is 

reasonably available and vocationally suitable.11 The fact that appellant was unable to secure a 

position does not mean that the position was not reasonably available to her in the open labor 

market.12

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

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

qualifications, in determining that the position of receptionist represented appellant’s wageearning capacity.13 The weight of the evidence of record establishes that appellant had the 

requisite physical ability, skill and experience to perform the position of receptionist and that 

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

Therefore, OWCP properly reduced her compensation effective July 28, 2013 based on her 

capacity to earn wages as a receptionist. 

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 in reducing appellant’s 

compensation based on its determination that the constructed position of a receptionist 

represented her wage-earning capacity effective July 28, 2013. 

 11 Federal (FECA) Procedure Manual, supra note 7. See also B.H., Docket No. 13-583 (issued 

September 10, 2013). 

12 Lawrence D. Price, 54 ECAB 590 (2003). 

13 James M. Frasher, 53 ECAB 794 (2002). 
8

ORDER 

IT IS HEREBY ORDERED THAT the February 24, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 6, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board