United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 14-2003 

Issued: February 13, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On September 17, 2014 appellant filed a timely appeal from the August 18, 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.2

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation effective 

August 24, 2014 based on her capacity to earn wages in the constructed position of receptionist. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The record contains a July 29, 2014 decision in which OWCP found that appellant received a $968.56 

overpayment of compensation. Appellant has not appealed this decision and its subject matter is not presently 

before the Board. 
2

FACTUAL HISTORY 

On May 7, 2012 appellant, then a 50-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained osteoarthritis of both knees due to performing her 

work duties for 26 years, including engaging in extensive walking and standing.3 After 

developing the medical evidence, in February 2013, OWCP accepted that appellant sustained 

work-related bilateral osteoarthritis of both knees. Appellant had previously stopped work on 

January 9, 2012 and began receiving compensation on the daily rolls effective April 21, 2012. 

She thereafter received compensation on the periodic rolls. 

In a February 6, 2012 report, Dr. Mark C. Gillespy, an attending Board-certified 

orthopedic surgeon, noted a history that appellant had developed right knee pain in 

December 2008 and later had right knee surgery which improved her right knee condition.4

 

Appellant reported to him that she was now developing pain in both knees and that her position 

as a letter carrier tended to aggravate her symptoms. X-rays were taken and Dr. Gillespy 

diagnosed osteoarthritis of the medial compartment of the right knee, status post medial 

meniscectomy, and internal derangement of the left knee. A February 23, 2012 magnetic 

resonance imaging (MRI) scan of appellant’s left knee showed moderate chondromalacia and 

trace joint effusion/Bakers’ cyst. Dr. Gillespy indicated that appellant’s arthritic knee condition 

prevented her from performing the job duty of getting up and down from her mail delivery truck. 

In a September 5, 2012 report, Dr. Kenneth B. Hawthorne, Jr., an attending Boardcertified orthopedic surgeon, reported upon physical examination that appellant had pain on 

range of motion of both knees, the right worse than the left. He noted that she had full extension 

and 120 degrees of flexion in both knees, 5/5 muscle strength of all the major muscle groups in 

both legs, and intact sensation in both legs. Dr. Hawthorne indicated that recent radiographs 

revealed moderate to severe medial compartment arthritis in appellant’s right knee and moderate 

arthritis medial compartment in her left knee. He diagnosed MRI scan consistent with 

patellofemoral osteoarthritis of her left knee joint, mild to moderate medial compartment 

osteoarthritis of her left knee joint, and moderate to severe medial compartment osteoarthritis of 

her right knee joint. Dr. Hawthorne recommended that appellant continue with physical therapy 

sessions. He continued to produce examination reports through mid-2013 that provided a similar 

assessment of appellant’s bilateral knee condition. Dr. Hawthorne periodically completed work 

restriction forms through early-September 2013 in which he indicated that appellant was disabled 

from all work. 

In a September 18, 2013 report, Dr. David B. Lotman, a Board-certified orthopedic 

surgeon and an OWCP referral physician, discussed appellant’s medical history, including 

findings on diagnostic testing, and reported the findings of his physical examination on that date. 

He indicated that his examination of her left knee demonstrated normal longitudinal alignment. 

There was no knee effusion, but there was tenderness at the medial femoral condyle with less 

tenderness at the medial tibial plateau. Appellant had normal patellofemoral excursion without 

 3

 Appellant indicated that she first became aware of her condition and realized that it was work related on 

January 9, 2012. 

4

 The evidence of record reveals that appellant underwent right partial medical meniscectomy on April 9, 2009. 
3

crepitation. However, she complained of pain on manual displacement of the patella 

mediolaterally and superoinferiorly. Dr. Lotman stated that passive flexion range of motion of 

appellant’s left knee was 0 to 130 degrees with no tibiofemoral crepitation. The McMurray test 

was negative in both compartments both for crepitation and pain and her left knee was stable to 

varus, valgus, and anteroposterior stress. Dr. Lotman noted that examination of appellant’s right 

knee was identical to her left knee with the exception that on the right there was slight crepitation 

in the lateral compartment on passive range of motion. Appellant also lacked about five degrees 

of full flexion and lacked about 10 degrees of full extension on the right. Dr. Lotman diagnosed 

status post arthroscopic partial medial meniscectomy of the right knee, degenerative arthritis of 

the right knee, and mild degenerative arthritis of the left knee. 

Within his September 18, 2013 report, Dr. Lotman answered six questions that had been 

posed by OWCP regarding appellant’s present knee condition and ability to perform the duties of 

her employment. He stated that appellant continued to have osteoarthritis of both knees and 

continued to have residuals of her accepted work injury. Dr. Lotman noted that, based on his 

evaluation including a record review, appellant was not capable of returning to the full duties of 

her date-of-injury position as a letter carrier. He believed that appellant could return to work in 

modified light-duty employment per an attached work capacity evaluation form also dated 

September 18, 2013. The attached form indicated that appellant could work for eight hours per 

day but that she had restrictions of walking no more than one hour per workday, standing no 

more than one hour, and no engaging in squatting, kneeling, or climbing. Dr. Lotman indicated 

that appellant had reached maximum medical improvement vis-a-vis her accepted work 

condition and he felt that she could perform some rehabilitative exercises on her own.5

 He stated 

that she would be a candidate for vocational rehabilitation. 

In an October 2, 2013 letter to OWCP, Dr. Hawthorne indicated that he had reviewed 

Dr. Lotman’s narrative report and his work capacity evaluation form dated September 18, 2013. 

He stated, “After reviewing these reports I agree with Dr. Lotman’s opinion in the independent 

medical examination regarding Dr. Lotman’s clinical impression and his conclusions on the six 

specific questions you required in the examination.” 

On October 21, 2013 appellant was referred for participation in an OWCP-sponsored 

vocational rehabilitation program. Appellant’s vocational rehabilitation counselor indicated that 

the September 18, 2013 opinion of Dr. Lotman, as assented to by Dr. Hawthorne in his 

October 2, 2013 letter, represented the best assessment of appellant’s physical ability to work. 

She found appellant’s education and work history provided her with transferrable skills including 

customer service, interpersonal, organizational, and basic computer skills. 

Linda Ebersold determined that appellant was able to perform the position of 

receptionist6

 and that a state employment labor market survey, conducted on December 9, 2013, 

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

 5

 Dr. Lotman also recommended that appellant consider herbal foods and/or medications to achieve some relief. 

6

 The position is listed in the Department of Labor’s Dictionary of Occupational Titles under number 

237.367.038. 
4

within her commuting area. The survey also revealed that the average wage for a receptionist in 

appellant’s area was $400.00 per week. 

The position of receptionist involves receiving callers at establishments, directing callers 

to destinations, preparing correspondence, answering telephones, and collecting and delivering 

mail and messages. Under the Department of Labor’s Dictionary of Occupational Titles, the 

position of receptionist is classified under the category of “sedentary” which means that it does 

not require lifting more than 10 pounds and that the work involves sitting most of the time, but 

may involve walking or standing for brief periods of time. The job does not require climbing, 

stooping, kneeling, or crouching.7

Beginning in late December 2013, appellant was provided with vocational job placement 

services with the goal of returning her to work as a receptionist, customer service representative, 

or appointment clerk. The vocational job placement services did not result in appellant finding 

employment. 

In a January 21, 2014 form report, Dr. Hawthorne indicated that appellant could not 

perform her regular work as a letter carrier. In a January 8, 2014 narrative report, he stated that 

appellant had pain on range of motion of both knees, but that no instability or malalignment was 

present. Dr. Hawthorne indicated that he advised appellant “that she may advance activity as 

tolerated.” 

On April 3, 2014 OWCP received a written request from appellant to change her address 

of record from an address in Daytona Beach, FL, to an address in Ormond Beach, FL. 

In a May 23, 2014 form report, Dr. Hawthorne indicated that appellant could not perform 

her regular work as a letter carrier. His narrative report of the same date contained examination 

findings that were similar to those contained in his January 8, 2014 narrative report. 

In a June 6, 2014 letter, OWCP advised appellant that it proposed to reduce her 

compensation based on her capacity to earn wages in the constructed position of receptionist. It 

explained that the medical evidence, as represented by the September 18, 2013 opinion of 

Dr. Lotman and the October 2, 2013 opinion of Dr. Hawthorne, showed that she was physically 

capable of working as a receptionist. Her vocational rehabilitation counselor had determined that 

she could vocationally perform the job and that it was reasonably available in her commuting 

area. OWCP provided appellant 30 days to submit evidence and argument challenging the 

proposed action. The June 6, 2014 letter was sent to appellant’s address in Ormond Beach but it 

was returned on June 26, 2014 as undeliverable to this address, with no forwarding address 

provided. 

On July 10, 2014 OWCP’s June 6, 2014 letter, now dated July 10, 2014, was remailed to 

appellant’s prior address in Daytona Beach and she was provided 30 days from July 10, 2014 to 

submit evidence and argument challenging the proposed reduction of her compensation. This 

letter was not returned to OWCP and on July 22, 2014 appellant called OWCP and indicated that 

 7

 Ms. Ebersold also indicated that appellant could work as a customer service representative or appointment clerk. 
5

she had received the letter. Appellant did not submit any additional evidence or argument within 

the allotted time. 

In an August 18, 2014 decision, OWCP reduced appellant’s compensation effective 

August 24, 2014 based on her capacity to earn wages in the constructed position of receptionist. 

It found that the evidence showed that she was vocationally and physically capable of working as 

a receptionist. 

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.8 Its burden of 

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

proper factual and medical background.9

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

open labor market under normal employment conditions.11 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.12 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.13

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.14 In determining wage-earning capacity based on a constructed position, 

consideration is not given to conditions which arise subsequent to the employment injury.15

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

9 Del K. Rykert, 40 ECAB 284 (1988). 

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

11 Albert L. Poe, 37 ECAB 684 (1986). 

12 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 (1985). 

13 Leo A. Chartier, 32 ECAB 652 (1981). 

14 Jess D. Todd, 34 ECAB 798 (1983). 

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

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

capacity.16

ANALYSIS 

OWCP accepted in February 2013 that appellant sustained work-related bilateral 

osteoarthritis of both knees due to the performance of her work duties over significant time. She 

stopped work on January 9, 2012 and started receiving compensation on the daily rolls effective 

April 21, 2012. Appellant later received compensation on the periodic rolls. 

In a September 18, 2013 report, Dr. Lotman, a Board-certified orthopedic surgeon, 

discussed appellant’s medical history, including findings on diagnostic testing, and reported the 

findings of his physical examination on that date. He diagnosed status post arthroscopic partial 

medial meniscectomy of the right knee, degenerative arthritis of the right knee, and mild 

degenerative arthritis of the left knee. In a portion of his September 18, 2013 report, Dr. Lotman 

answered six questions that had been posed by OWCP regarding appellant’s present knee 

condition and ability to work. He stated that appellant continued to have osteoarthritis of both 

knees and continued to have residuals of her accepted work injury. Dr. Lotman noted that 

appellant was not capable of returning to the full duties of her date-of-injury position as a letter 

carrier, but that she could return to work in modified light-duty employment per an attached 

work capacity evaluation form also dated September 18, 2013. The attached form indicated that 

appellant could work for eight hours per day with restrictions of walking no more than one hour 

per workday, standing no more than one hour, and no engaging in squatting, kneeling, or 

climbing. 

In an October 2, 2013 letter to OWCP, Dr. Hawthorne, an attending Board-certified 

orthopedic surgeon, indicated that he had reviewed Dr. Lotman’s narrative report and his work 

capacity evaluation form dated September 18, 2013. Dr. Hawthorne stated, “After reviewing 

these reports I agree with Dr. Lotman’s opinion in the independent medical examination 

regarding Dr. Lotman’s clinical impression and his conclusions on the six specific questions you 

required in the examination.” 

Appellant’s vocational rehabilitation counselor determined that she was able to perform 

the position of receptionist and that state employment services showed the position was available 

in sufficient numbers so as to make it reasonably available within her commuting area. The 

position of receptionist involved receiving callers at establishments, directing callers to 

 16 Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Albert C. Shadrick, 5 ECAB 376 (1953). 
7

destinations, preparing correspondence, answering telephones, and collecting and delivering mail 

and messages. Under the Department of Labor’s Dictionary of Occupational Titles, the position 

of receptionist is classified under the category of “sedentary” which means that it does not 

require lifting more than 10 pounds and that the work involves sitting most of the time, but may 

involve walking or standing for brief periods of time. The job does not require climbing, 

stooping, kneeling, or crouching. 

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 of the receptionist position.17 In addition, a review of the medical evidence 

of record reveals that appellant is physically capable of performing the position. Both 

Dr. Lotman and Dr. Hawthorne indicated that she could perform modified work within the 

parameters of specific work restrictions. The Board finds that the work restrictions 

recommended by Dr. Lotman and Dr. Hawthorne (including those regarding walking and 

standing) would allow appellant to work as a receptionist, a position which is essentially 

sedentary in nature. Appellant did not submit any evidence or argument showing that she could 

not vocationally or physically perform the receptionist position. 

On appeal appellant argued that the opinion of Dr. Hawthorne showed that she could not 

work as a receptionist. However, in October 2013, Dr. Hawthorne indicated that he agreed with 

Dr. Lotman’s assessment of appellant’s medical condition and capacity to work. As noted, the 

work restrictions provided by Dr. Lotman would have allowed appellant to work as a 

receptionist. In January 21 and May 23, 2014 form reports, Dr. Hawthorne did indicate that 

appellant could not perform her regular work as a letter carrier. However, these brief reports 

provide no indication that she could not carry out the limited physical requirements of the 

receptionist position.18

 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 her wage-earning capacity.19 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 appellant’s compensation effective August 24, 2014 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. 

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

18 On appeal appellant asserted that Dr. Lotman recommended that she take medicines and herbs that were not 

approved by the U.S. Food and Drug Administration. The Board notes that Dr. Lotman only made a general 

recommendation that appellant consider herbal foods and/or medications to achieve some relief and that he 

committed no impropriety by making such a recommendation. 

19 Clayton Varner, 37 ECAB 248, 256 (1985). 
8

CONCLUSION 

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

August 24, 2014 based on her capacity to earn wages in the constructed position of receptionist. 

ORDER 

IT IS HEREBY ORDERED THAT the August 18, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board