United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Louisville, KY, Employer 

__________________________________________ 

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Docket No. 15-0231 

Issued: July 21, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 11, 2014 appellant, through counsel, filed a timely appeal from an 

August 6, 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 

based on its determination that the constructed position of a night auditor represented her wageearning capacity effective March 5, 2014. 

FACTUAL HISTORY 

On December 19, 2011 appellant, then a 27-year-old casual clerk, was injured when an 

all-purpose container fell on her at work. She fell on her right side and rolled onto her back, 

 1

 5 U.S.C. § 8101 et seq.
2

where she was pinned by a heavy equipment cage. Appellant returned to limited-duty work. Her 

casual term ended on January 13, 2012. On March 5, 2012 OWCP accepted the claim for 

contusion of the right elbow and shoulder. On July 31, 2012 it expanded the claim to include 

cervical strain, thoracic strain, and lumbar strain. On September 5, 2012 appellant underwent a 

left L5-S1 laminectomy/discectomy. On November 9, 2012 she began receiving total disability 

compensation on the periodic rolls. 

On December 14, 2012 OWCP referred appellant for a second opinion to Dr. Stanley W. 

Collis, a Board-certified orthopedic surgeon, to determine the extent of work-related conditions 

and her work ability. 

In a February 5, 2013 report, Dr. Collis described appellant’s history and provided results 

on examination. Appellant complained of pain in the lower back and right shoulder. She did not 

complain of neck pain but Dr. Collis obtained neck x-rays because he noticed that the original 

x-rays following the injury of the neck indicated a reversal of the cervical curvature. Dr. Collis 

explained that at this time there is no reversal and a minimal decrease of the cervical curvature 

only. He diagnosed postlaminectomy and disc removal of L5-SI on the left and minimal 

traumatic synovitis of the right shoulder. Dr. Collis opined that the cervical strain had resolved. 

Appellant did not complain of any problem in the thoracic area and he concluded that the 

thoracic strain had resolved. Dr. Collis further determined that the right elbow contusion had 

completely resolved as she had no complaints in that area. He explained that appellant continued 

to have some right shoulder discomfort due to the contusion. Dr. Collis opined that her lumbar 

strain and herniated disc had resolved but that she still had some back problems due to the 

surgery for the disc protrusion of L5-S1. He opined that appellant continued with some residual 

pain in the back off and on due to the surgery and the herniation. Dr. Collis determined that she 

had not reached maximum medical improvement and that, generally, she would need about 10 

months after surgery to reach maximum medical improvement. He explained that appellant was 

not able to do all the activities that she was doing prior to the date of injury but noted that she 

was not totally disabled. 

Dr. Collis advised that appellant could work with restrictions with regard to her back. He 

provided restrictions to include avoiding excessive bending and lifting over 20 pounds until 

about May 15, 2013. Dr. Collis opined that at that point, appellant could return to her regular 

work. He also indicated that she would have difficulty performing activities that required lifting 

or working above right shoulder level with the right arm. Dr. Collis noted that appellant was 

progressing satisfactorily with her back. He recommended that she keep using her back, but 

abstain from excessive bending and lifting over 20 pounds until about May 2013. Dr. Collis also 

recommended that appellant try to avoid working or lifting above shoulder level. He explained 

that, if she had to do that, she “ought to use a ladder or some platform.” Dr. Collis completed a 

work capacity form. 

In a February 20, 2013 letter, OWCP requested that appellant’s treating physician, 

Dr. William Ante, a Board-certified internist, review the report of Dr. Collis and comment on 

whether he concurred with his findings related to ongoing residuals and work restrictions. 

In a February 28, 2013 report, Dr. Ante advised that appellant had not reached maximum 

medical improvement. He concurred with Dr. Collis with regard to appellant not being totally 
3

disabled for work and recommended restrictions of no repetitive bending, no lifting over 20 

pounds, and no overhead work. Dr. Ante noted that he did not necessarily believe the time frame 

for maximum medical improvement would be May. He continued to treat appellant and 

recommended physical therapy and restrictions. 

OWCP referred the claim to vocational rehabilitation services. On April 2, 2013 the 

vocational rehabilitation counselor noted meeting with appellant and discussed her experience 

and education, which included a high school diploma and some college. Appellant was one year 

away from achieving a medical assistant certificate, and being one semester away from a twoyear criminal justice degree. Additionally, the vocational rehabilitation counselor indicated that 

she had previously worked as a night auditor and desk clerk at a hotel/motel. He determined that 

appellant should adopt a goal of employment as a night auditor and a desk clerk for hotel/motels. 

The night auditor position Department of Labor’s Dictionary of Occupational Titles

(DOT) No. 210.382-054, was classified as a sedentary light position. The duties included 

verifying and balancing entries and records of financial transactions reported by various hotel 

departments during day, using basic math skills, such as adding, bookkeeping, and calculating 

machines. It was noted that appellant might perform the duties of a hotel clerk. DOT 

No. 238.367-038 in smaller establishments. The duties of that position included compiling and 

maintaining records, recording data, performing performance reviews or evaluations, processing 

employment applications, assisting in other employment activities, preparing reports using 

typewriter or computer, and administer and score aptitude, personality, and interest tests. The 

physical requirements were described as light and included lifting up to 20 pounds, rare stooping, 

occasional balancing, crouching, reaching, frequent handling, occasional fingering and feeling, 

and frequent talking and hearing. No climbing, kneeling, or crawling was required. 

On May 6, 2013 the vocational rehabilitation counselor found that appellant met the 

specific vocational preparation for the night clerk/auditor position. He listed the average weekly 

earnings of a night clerk/auditor as $400.00 a week based wage data from the state of Indiana, 

determined that appellant was educationally qualified for the job, and found that the position was 

available in sufficient numbers on a full-time basis in appellant’s commuting area based on her 

placement service, labor market research, and the state employment service. In a June 27, 2013 

status report, the vocational rehabilitation counselor noted that the vocational rehabilitation plan 

was approved and the job search would proceed. 

In a letter dated June 27, 2013, OWCP advised appellant that the vocational rehabilitation 

counselor had found her able to work as a night auditor. Appellant was informed that the 

selected position was suitable to her restrictions and that she would receive 90 days of placement 

assistance to help her locate such a position. OWCP noted that based on the vocational 

rehabilitation counselor’s evaluation and a survey of the local labor market, appellant had or 

would have had a wage-earning capacity of up to $400.00 a week. Appellant was notified that, 

at the end of the rehabilitation program, her compensation would likely be reduced, whether she 

was actually employed or not. 

In a November 21, 2013 report, Dr. Ante noted that an October 29, 2013 functional 

capacity evaluation (FCE) supported appellant’s ability to perform medium physical demand 

work including lifting/pushing/pulling up to 30 pounds, occasional walking, stairs, balancing, 
4

bending, stooping, crouching, squatting, twisting, and work above the shoulder and at level. He 

also indicated that appellant was capable of frequent sitting, standing, and finger grasping along 

with prolonged neck position, fine finger manipulation, light grasping, pinching, and reaching 

forward. Dr. Ante advised that she reached maximum medical improvement. 

On December 11, 2013 the vocational rehabilitation counselor concluded placement 

services on behalf of appellant. It was noted that appellant had been provided with 90 days, plus 

an additional 70 plus days of placement assistance, but did not obtain employment. The 

vocational rehabilitation noted that the position of night auditor at the rate of $400 a week was 

performed in sufficient numbers within the commuting area to make it reasonably available. 

In a December 17, 2013 telephone call memorandum, OWCP confirmed that the current 

hourly rate for a casual mail handler at level 7 was $12.00 a hour and had not changed since the 

date of injury. 

On January 21, 2014 OWCP proposed to reduce appellant’s wage-loss compensation 

because the medical and factual evidence of record established that she had the capacity to earn 

the wages of a night auditor, DOT No. 210.382-054. The physical requirements of the night 

auditor were described as light work with lifting up to 20 pounds, occasional balancing, 

crouching, reaching, fingering, and feeling with frequent handling and hearing/seeing. It was 

noted that the physical requirements did not exceed the work restrictions provided by Dr. Collis 

in his February 5, 2013 report, and Dr. Ante in his November 21, 2013 report. OWCP noted that 

appellant’s wage-earning capacity was less than the current rate of pay of the job she held when 

injured and they proposed to reduce her wage loss to $386.00 every four weeks. Appellant was 

provided 30 days to submit additional evidence or argument in support of any objection to the 

proposed reduction. 

In a memorandum of telephone call dated January 27, 2014, appellant discussed the 

proposed reductions and related that she had never been informed that her compensation would 

be reduced. However, OWCP explained that the June 2013 letter clearly explained the process. 

Appellant was given an additional 30 days to submit any arguments. 

In a letter dated February 19, 2014, appellant disagreed with OWCP’s proposal to reduce 

her compensation. She indicated that despite six months of vocational rehabilitation, she was 

unable to find a job. Appellant stated that the proposed job of night auditor was not available in 

her area. She indicated that her vocational rehabilitation counselor’s business address was an 

empty cornfield in Illinois and they were not even looking at the night auditor position during her 

vocational rehabilitation. Appellant argued that the night auditor duties were outside her 

restrictions. She noted that she previously worked a night audit or position at a hotel and she 

was required to help guests with their luggage and to deliver packages to guest rooms. Appellant 

also questioned the wage of a night auditor. 

In a March 5, 2014 decision, OWCP reduced appellant’s compensation benefits effective 

that date, based upon her ability to earn wages in the constructed position of night auditor. Using 

the formula in Albert C. Shadrick,

2

 it noted that appellant’s salary on the date her disability 

 2

 5 ECAB 376 (1953). 
5

began, on December 19, 2011, was $527.55 a week and the current adjusted pay rate for her job 

on the date of injury was the same as of January 15, 2014. Appellant was found currently 

capable of earning $400.00 a week, the pay rate of a night auditor.3 OWCP determined that she 

had a 76 percent wage-earning capacity, which resulted in an adjusted wage-earning capacity of 

$400.85 a week. This yielded a new compensation rate equal to $392.00 every four weeks. 

By letter dated May 12, 2014, counsel requested reconsideration. He argued that the 

Department of Labor’s Dictionary of Occupational Titles was outdated, no longer used, and had 

not been updated for many years. Counsel argued that the failure to update the Department of 

Labor’s Dictionary of Occupational Titles was being used as a basis to deny claimants their basic 

rights and that reliance upon a defunct and outdated publication meant the injured workers were 

having their compensation payments reduced based on a fiction. Additionally, he argued that the 

Department of Labor’s Dictionary of Occupational Titles was no longer relevant and had been 

replaced by the Occupational Information Network (O*Net). Counsel argued that the decision to 

reduce her compensation should be vacated. OWCP also received a copy of the October 29, 

2013 FCE and physical therapy notes. 

By decision dated August 6, 2014, OWCP denied modification of the March 5, 2014 

decision. 

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.4 

Section 8115(a) of FECA,5 provides in determining compensation for partial disability, 

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

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

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

evidence showing they do not fairly and reasonably represent the injured employee’s wageearning capacity, must be accepted as such measure.6

 If the actual earnings do not fairly and 

reasonably represent wage-earning capacity, or if the employee has no actual earnings, his or 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 his disabled condition.7 Wage-earning capacity is a measure of the 

employee’s ability to earn wages in the open labor market under normal employment 

 3

 OWCP also noted that appellant had prior experience as a front desk clerk and night auditor in the hotel 

industry. 

4 Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984). 

5

 5 U.S.C. § 8115. 

6 Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971). 

7 See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a). 
6

conditions.8

 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.9

 In 

determining an employee’s wage-earning capacity, OWCP may not select a makeshift or odd lot 

position or one not reasonably available on the open labor market.10 

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 physical limitation, 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.11 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.12 

ANALYSIS 

OWCP accepted appellant’s claim for contusion of the right elbow and shoulder. On 

July 31, 2012 it expanded the claim to include cervical strain, thoracic strain, and lumbar strain. 

Appellant received compensation and medical benefits. On September 5, 2012 she underwent 

lumbar surgery consisting of a left L5-S1 laminectomy/discectomy, and she was placed on the 

periodic rolls on November 9, 2012. 

On February 5, 2013 Dr. Collis, the second opinion physician, found that appellant was 

no longer totally disabled and could work full-time subject to work restrictions. He provided 

restrictions to include avoiding excessive bending of her back and no lifting over 20 pounds until 

about May 15, 2013. On February 28, 2013 Dr. Ante concurred with Dr. Collis and 

recommended similar restrictions of no repetitive bending, no lifting over 20 pounds, and no 

overhead work. 

The vocational rehabilitation counselor determined that appellant was able to perform the 

position of a night auditor. He noted her education, advised that she had prior experience as a 

night auditor and hotel clerk, and determined that the position was available in sufficient 

numbers so as to make it reasonably available within appellant’s commuting area. The position 

was sedentary/light. The physical requirements were described as light and included lifting up to 

20 pounds, rare stooping, occasional balancing, crouching, reaching, frequent handling, 

occasional fingering and feeling, and frequent talking and hearing. No climbing, kneeling, or 

crawling was required. The Board notes that both the second opinion physician, Dr. Collis, and 

 8 Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982). 

9 Id.

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

11 Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999). 

12 Id. See Shadrick, 5 ECAB 376 (1953). 
7

the treating physician, Dr. Ante, confirmed that appellant could work in the light/sedentary 

physical demand category. The Board finds that OWCP properly determined this position met 

appellant’s physical restrictions 

The vocational rehabilitation counselor noted the duties of a night auditor and explained 

that appellant had a high school education and some college coursework and prior experience in 

this type of position. The Board finds that OWCP properly found that appellant was vocationally 

capable of performing the night auditor position and that the position was reasonably available in 

her commuting area at an average wage of $400.00 a week. The Board finds that it 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 night auditor represented her wage-earning capacity.13 Therefore, OWCP properly 

reduced her compensation effective March 5, 2014 based on her capacity to earn wages as a 

night auditor. 

Appellant argued in a letter dated February 19, 2014, that, despite six months of 

vocational rehabilitation, she was unable to find a job. She indicated that the proposed jobs of 

night auditor were not available in her area. Appellant indicated that her vocational 

rehabilitation counselor’s business address was an empty cornfield in Illinois and they were not 

even looking at the night auditor positions during her vocational rehabilitation. She argued that 

night auditor duties were outside her restrictions. Appellant noted that she had previously 

worked a night auditor position at a hotel and was required to carry luggage and packages to 

guest rooms. She also questioned the wage of a night auditor. Appellant requested that the 

proposed reduction of compensation be vacated and that she be approved for appropriate 

compensation. The Board, as noted above, finds that the night auditor position comported with 

her restrictions. Regarding her arguments about availability of jobs, 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.14 The fact that appellant was unable to secure a 

position does not mean that the position is not reasonably available to him in the open labor 

market.15

Counsel argued on reconsideration and on appeal that the Department of Labor’s 

Dictionary of Occupational Titles was obsolete and no longer described positions performed in 

the current labor market. However, despite the criticism of the Department of Labor’s 

Dictionary of Occupational Titles, the dispositive question is whether the selected position met 

appellant’s requirements and was reasonable available to appellant.16 The position met 

appellant’s physical limitation and was reasonably available in her commuting area. Counsel has 

not failed to provide a compelling argument that the night auditor position was not appropriate. 

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

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.6(b) (June 2013). See also B.H., Docket No. 13-583 (issued 

September 10, 2013). 

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

16 Federal (FECA) Procedure Manual, supra note 14. See M.B., Docket No. 15-76 (issued March 9, 2015). 
8

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

based on its determination that the constructed position of a night auditor represented her wageearning capacity effective March 5, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the August 6, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 21, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board