United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.W., Appellant 

and 

U.S. POST SERVICE, BULK MAIL CENTER, 

Jersey City, NJ, Employer 

__________________________________________ 

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Docket No. 14-1772 

Issued: January 28, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 13, 2014 appellant, through counsel, filed a timely appeal from a May 9, 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 properly reduced appellant’s compensation effective 

September 22, 2013 based on its finding that he had the capacity to earn wages in the constructed 

position of receptionist. 

FACTUAL HISTORY 

On February 19, 2002 appellant, then a 54-year-old mail handler, filed an occupational 

disease claim alleging a torn right knee ligament causally related to factors of his federal 

 1

 5 U.S.C. § 8101 et seq. 
2

employment. He stopped work on October 23, 2001. OWCP accepted the claim for bilateral 

tears of the medial meniscus and bilateral traumatic arthropathy of the lower legs. Appellant 

underwent multiple bilateral knee surgeries, including revisions of his left total knee replacement 

in 2007 and his right total knee replacement in 2008. OWCP paid him compensation for periods 

of total and partial disability until 2008, when he stopped work and did not return. Appellant 

was placed on the periodic rolls. 

On September 19, 2012 OWCP referred appellant to Dr. James Bethea, a Board-certified 

orthopedic surgeon, for a second opinion examination as to appellant’s capacity. 

On October 5, 2012 appellant informed OWCP that his attending physician was retiring 

and requested authorization to change attending physicians.2 

In a report dated October 15, 2012, Dr. Bethea discussed appellant’s complaints of knee 

pain bilaterally. He noted that appellant had a history of low back pain and bilateral carpal 

tunnel syndrome. On examination, Dr. Bethea found full range of motion of the knees bilaterally 

“without any effusion, tenderness, erythema, or warmth.” He determined that x-rays showed 

“well-seated knee replacements” without complications. Dr. Bethea diagnosed continued knee 

pain after total knee replacements. He opined that the accepted condition had not resolved but 

that appellant could work eight hours per day with restrictions. In a work restriction evaluation 

dated October 15, 2012, Dr. Bethea provided limitations of walking and standing for four hours 

per day and pushing, pulling, and lifting up to 25 pounds for six hours per day. He further 

determined that appellant could squat and climb for one hour per day but could not kneel. 

On December 20, 2012 appellant requested that OWCP authorize Dr. Dewey N. Ervin, a 

Board-certified orthopedic surgeon, as his attending physician. On December 28, 2012 OWCP 

authorized Dr. Ervin to treat appellant for the accepted conditions of a bilateral medial meniscus 

tear and bilateral traumatic arthropathy of the bilateral lower legs. 

In a report dated January 7, 2013, Dr. Ervin discussed appellant’s work history of total 

knee replacements in 2005 on the left and 2008 on the right, his complaints of pain and periodic 

swelling of the knees bilaterally and his use of a cane to walk. On examination, he found mild 

effusion of the right knee, moderate lateral laxity and mild-to-moderate anterior/posterior 

instability. For the left knee, Dr. Ervin found mild effusion, moderate lateral laxity and mild 

instability. He interpreted x-rays as showing an undersized femoral component of both knees. 

Dr. Ervin diagnosed painful knees after bilateral total knee arthroplasty and referred appellant to 

Dr. Harold D. Schutte, a Board-certified orthopedic surgeon, for further evaluation. 

On February 4, 2013 OWCP referred appellant to a vocational rehabilitation counselor. 

 2

 In a report dated August 1, 2012, Dr. Alfred G. Dawson, an attending Board-certified orthopedic surgeon, found 

left hand thenar atrophy and a positive Tinel’s sign. He requested authorization for a left carpal tunnel release. On 

August 9, 2012 Dr. Dawson evaluated appellant for left thumb pain over the past nine months. Dr. Dawson 

diagnosed traumatic arthritis of the left thumb. On October 1, 2012 he evaluated appellant for tenderness of the 

bilateral lateral tibia. Dr. Dawson found a positive straight leg test on the right and absent reflexes of the lower 

extremity. 
3

In a report dated February 13, 2013, Dr. Schutte discussed appellant’s symptoms of 

bilateral knee pain and tingling, and numbness of the legs. He noted that appellant worked as a 

preacher. Dr. Schutte diagnosed knee pain greater on the left. He found that x-rays showed a 

total knee replacement with a possible loosening of the femoral. Dr. Schutte recommended 

prosthetic joint replacement.3

In a rehabilitation report dated February 20, 2013, the rehabilitation counselor discussed 

appellant’s work history as a mail handler, cashier, and commodities trader. On March 22, 2013 

she discussed the results of vocational and psychological evaluation. The rehabilitation 

counselor noted that appellant had a history of carpal tunnel surgery on his left hand and was 

scheduled for surgery on his right hand. 

In an April 2, 2013 report, the rehabilitation counselor identified the positions of 

customer service representative and receptionist as suitable for appellant. She noted that 

appellant worked as a commodities trader for 33 years, a mail handler from 1999 until 2008, a 

manager at a grocery chain from 1992 to 1994, and as an accounting clerk. The rehabilitation 

counselor indicated that he had the transferrable skills to work as a receptionist. 

In a form used to determine disability by the Social Security Administration (SSA) dated 

April 12, 2013, Dr. Richard A. Boiardo, a Board-certified orthopedic surgeon, diagnosed 

bilateral total knee replacements and noted that appellant required a cane to walk. He found that 

appellant could walk for only two hours without shortness of breath and pain and sit for two 

hours without stiffness and the need to elevate his leg. Dr. Boiardo opined that appellant 

required breaks every two hours during an eight-hour workday. He further determined that he 

could occasionally lift and carry up to 10 pounds. 

In an April 15, 2013 labor market survey, the rehabilitation counselor identified the 

position of receptionist DOT No. xxxxxx038 in the Department of Labor’s Dictionary of 

Occupational Titles as suitable. She noted that the position was sedentary and required lifting, 

carrying, pushing, and pulling up to 10 pounds occasionally. The specific vocational preparation 

was level 4, or 3 to 6 months. 

On April 15, 2013 OWCP approved job placement assistance for 90 days in the positions 

of customer service representative or receptionist. 

In a job classification dated July 10, 2013, the rehabilitation counselor found that 

appellant met the specific vocational preparation for the position of receptionist as he was a clerk 

for a bank and assisted customers by telephone. She further advised that the state job service and 

employing establishment contacted during the labor market survey established that there were 

sufficient openings in his geographical area. The weekly wage for an entry level position was 

$360.00 per week and the median wage was $400.00 per week. 

On July 10, 2013 an OWCP medical adviser recommended that OWCP approve a left 

total knee arthroplasty revision. He stated, “The complaint of constant pain may be due to [an] 

undersized femoral component.” 

 3

 On February 27, 2013 Dr. Schutte treated appellant with a steroid injection. 
4

On July 18, 2013 an OWCP rehabilitation specialist determined that the positions of 

receptionist and customer service representative were reasonably available in appellant’s area at 

a salary that ranged from $360.00 to $400.00 per week.4

 He noted that appellant had clerical 

skills from working as a commodity clerk and trader and a grocery cashier store manager and 

had some college courses in business and computers. 

On August 9, 2013 OWCP advised appellant of its proposed reduction of his 

compensation based on its finding that he had the capacity to earn wages of $360.00 per week as 

a receptionist. 

In a response dated August 20, 2013, appellant’s counsel asserted that he was awaiting 

authorization for surgery. He maintained that Dr. Bethea’s October 15, 2012 report was “now 

obsolete and not an indication of the claimant’s current medical picture.” 

On August 20, 2013 appellant disagreed with the proposed reduction of his 

compensation, noting that OWCP had approved his left knee revision surgery. He asserted that 

new x-rays revealed that his left knee was separating from his bone. Appellant noted that SSA 

had found that he was totally disabled. 

By decision dated September 12, 2013, OWCP reduced appellant’s compensation based 

on its finding that he had the capacity to work in the selected position of receptionist at a salary 

of $360.00 per week. It applied the formula set forth in Albert C. Shadrick5

 to determine his 

wage-earning capacity. 

On September 17, 2013 appellant, through counsel, requested an oral hearing. 

In a report dated October 18, 2013, Dr. Schutte asserted that he was treating appellant for 

total knee arthroplasties that had failed. He stated: 

“[Appellant] has been scheduled several times for revisions; however, his medical 

condition did not allow him to go forward with the surgery. As soon as he is 

cleared by his medical [physicians], we will once again put him back on the 

surgery schedule. In the meantime, from an orthopedic standpoint, I would 

consider [appellant] totally disabled until he can proceed with the planned 

surgery.” 

On December 9, 2013 appellant related that an August 7, 2013 preadmission test for his 

knee surgery revealed blood sugar levels too high for surgery. Dr. Bethea postponed the surgery 

and subsequent testing continued to reveal blood levels too high for surgery. Appellant 

questioned the accuracy of Dr. Bethea’s findings, noting that other physicians found that he had 

permanent disability. 

 4

 In a closure report dated July 16, 2013, the rehabilitation counselor noted that appellant’s physician advised him 

that he was disabled. 

5

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

In a letter dated February 19, 2014, appellant’s counsel indicated that both Dr. Ervin and 

the medical adviser found that appellant’s pain might be due to an undersized femoral 

component. He noted that OWCP had approved revision surgery as necessary due to the prior 

authorized total knee replacement and maintained that OWCP erred in relying on a medical 

report that predated the authorization. Counsel submitted an April 25, 2013 report from 

Dr. Schutte. He believed that the femoral components in appellant’s knees were undersized and 

likely causing his pain and lack of stability. 

At the hearing, held on February 18, 2014, appellant related that he was currently unable 

to have his knee revision surgery due to his diabetes. He was diagnosed with diabetes around 

1998. Appellant asserted that he had a claim accepted for carpal tunnel syndrome under file 

number xxxxxx753. He indicated that his carpal tunnel syndrome began in 1999 and that he 

underwent surgery for carpal tunnel syndrome on January 16, 2013. Appellant related that his 

blood sugar level was too high for further knee surgery and that he was not able to sit for long 

periods. His counsel argued that the statement of accepted facts provided to Dr. Bethea was not 

accurate as it identified the bilateral carpal tunnel syndrome as a nonemployment-related 

condition. He also contended that Dr. Bethea did not support his conclusion with medical 

reasoning or consider the preexisting bilateral carpal tunnel syndrome and diabetes. Counsel 

further argued that Dr. Bethea’s opinion was not current as it was issued prior to OWCP’s 

authorization for left knee surgery. He asserted that Dr. Schutte’s opinion constituted the weight 

of the evidence as the attending physician who would perform the anticipated knee surgery. 

By decision dated May 9, 2014, the hearing representative affirmed the September 12, 

2013 decision. 

On appeal, appellant’s counsel contends that OWCP did not meet its burden of proof to 

reduce his compensation benefits. He asserts that Dr. Bethea’s evaluation is stale as it was 

performed prior to the deterioration of appellant’s left knee condition and OWCP’s authorization 

for a left knee replacement revision. Counsel also argues that Dr. Bethea failed to consider 

appellant’s preexisting bilateral carpal tunnel syndrome and diabetes. He maintains that OWCP 

erred in finding that appellant had the burden to submit evidence showing that his preexisting 

conditions prevented him from performing the job duties of receptionist. 

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.6 Under section 8115(a), 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 his or her wageearning capacity, or if the employee has no actual earnings, his or her wage-earning capacity is 

determined with due regard to the nature of the injury, the degree of physical impairment, his or 

her usual employment, age, qualifications for other employment, the availability of suitable 

 6 T.O., 58 ECAB 377 (2007). 
6

employment and other factors or circumstances which may affect wage-earning capacity in his or 

her disabled condition.7

When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case 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 market, that fits the employee’s capabilities with regard to his or 

her physical limitations, education, age, and prior experience.8 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 Albert C. Shadrick9

 will result in the percentage of the employee’s loss of 

wage-earning capacity. 

ANALYSIS 

OWCP accepted that appellant sustained bilateral medial meniscal tears and bilateral 

traumatic arthropathy of the lower legs due to factors of his federal employment. Appellant 

received compensation for total disability beginning in 2008. OWCP reduced his compensation 

effective September 22, 2013 based on its determining that he could earn wages in the selected 

position of receptionist. 

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s 

compensation as the medical evidence does not clearly demonstrate that the selected position of 

receptionist was within his physical limitations. The issue of whether an employee has the 

physical ability to perform a selected position is a medical question that must be resolved by 

probative medical evidence.10

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

the October 15, 2012 report of Dr. Bethea, a referral physician. Dr. Bethea found that appellant 

could work eight hours per day with limitations on walking and standing for four hours per day 

and pushing, pulling, and lifting up to 25 pounds for six hours per day. The position of 

receptionist, DOT No. xxxxxx038 in the Department of Labor’s Dictionary of Occupational 

Titles, is defined as sedentary, which involves sitting most of the time but may involve walking 

or standing for brief periods of time and requires the ability to lifting, carry or push up to 10 

pounds occasionally. It is thus within the restrictions set forth by Dr. Bethea. 

Subsequent to Dr. Bethea’s report, however, on February 13, 2013 Dr. Schutte found that 

x-rays revealed a possible femoral loosening following a total knee replacement and 

recommended replacing the prosthetic joint. On July 10, 2013 an OWCP medical adviser 

recommended that OWCP approve a revision of a total knee replacement on the left side. 

 7 Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999). 

8 Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000). 

9

 5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403. 

10 See Maurissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995). 
7

In a report dated October 18, 2013, Dr. Schutte diagnosed failed knee arthroplasties. He 

noted that appellant had not been able to have revision surgery due to another medical condition. 

Dr. Schutte opined that appellant was totally disabled orthopedically pending the revision 

surgery. 

OWCP’s procedures state that, unless the medical evidence is clear and unequivocal, 

OWCP should seek the advice of a physician regarding the suitability of the position.11 The 

Board finds that the medical evidence is not clear and unequivocal in this case.12 Following 

Dr. Bethea’s finding that appellant had the capacity to work for eight hours with limitations, 

OWCP approved a revised left total knee replacement and Dr. Schutte, his attending physician, 

opined that he was disabled pending the surgery.13 Consequently, as the medical evidence 

regarding whether appellant can work in the selected position is not clear and unequivocal, 

OWCP did not meet its burden of proof. 

CONCLUSION 

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

September 22, 2013 based on its finding that he had the capacity to earn wages in the constructed 

position of receptionist. 

 11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.816.4 

(June 2013). OWCP’s procedures further provide that the medical evidence “should indicate that the claimant’s 

condition is stable.” Id. at Chapter 2.816.4(b) (June 2013). 

12 See D.C., Docket No. 13-747 (issued June 25, 2013). 

13 Appellant asserted that he was not able to undergo surgery due to diabetes that was first diagnosed in 1998. 

The Board notes that preexisting conditions are considered in determining the medical suitability of a position. See 

Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.816.4(b) (June 2013). 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’ 

Compensation Programs is reversed. 

Issued: January 28, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board