United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hartford, CT, Employer 

__________________________________________ 

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Docket No. 15-322 

Issued: May 1, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 26, 2014 appellant, through counsel, filed a timely appeal from the 

November 5, 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 to review the merits of this case. 

ISSUE 

The issue is whether appellant has the capacity to earn wages as a phlebotomist. 

FACTUAL HISTORY 

On October 15, 2007 appellant, a 57-year-old letter carrier, filed an occupational disease 

claim alleging that the repetitive nature of her duties caused a right hand injury. OWCP accepted 

 1

 5 U.S.C. § 8101 et seq.
2

her claim for bilateral carpal tunnel syndrome. Appellant underwent surgical releases in 2008. 

She received compensation for temporary total disability on the periodic rolls.2

In July 2010 Dr. Sultan A. Quraishi, the attending surgeon and hand specialist, advised 

that appellant had been his patient since 2001 and that she was under his care for bilateral carpal 

tunnel syndrome. He stated: “She can get trained as [a] phlebotomist and her movements will 

not affect her ability to perform this type of job.” OWCP rehabilitation specialist approved a 

training plan. Appellant completed her training but was unable to secure placement with a new 

employer. 

After obtaining current medical restrictions, an OWCP rehabilitation counselor conducted 

a labor market survey. Based upon the medically determinable residuals of appellant’s injury, 

and taking into consideration all significant preexisting impairments and pertinent nonmedical 

factors, the rehabilitation counselor found that appellant was able to perform the selected job of 

phlebotomist. The rehabilitation counselor noted that appellant had completed a specific training 

program and had acquired the necessary skills to perform the essential functions of a 

phlebotomist. The job was being performed in sufficient numbers so as to make it reasonably 

available to appellant within her commuting area. According to the labor market survey 

completed in March 2013, the weekly wage for the selected position ranged from $420.00 to 

$625.00. 

Dr. Quraishi completed a current work capacity evaluation. Informed that OWCP had 

accepted bilateral carpal tunnel syndrome and a right knee replacement, she indicated that 

appellant was able to work eight hours a day with certain restrictions. 

OWCP issued a notice of proposed reduction. It informed appellant that the medical and 

factual evidence established that she was no longer totally disabled, but rather had the capacity to 

earn wages as a phlebotomist at the rate of $420.00 per week. 

Appellant did not believe it was fair to reduce her monetary compensation. She noted 

that in addition to her carpal tunnel surgery, she also had at right total knee replacement. 

Appellant now walked with a limp and had to be patted down every time she traveled by air. She 

stated that every employer was looking for someone with at least one year of experience, which 

she did not have. Appellant added that she had a pin in her left ankle, which was also an injury 

claim. “I was a good employee, if this had not happen to me I could be making more money, 

missing overtime and my body would not have all this metal in it.” 

In a decision dated January 27, 2014, OWCP reduced appellant’s wage-loss 

compensation to reflect her capacity to earn wages as a phlebotomist. 

Appellant requested a telephonic hearing, appellant testified that she was trained and had 

the skills to do the job of an entry-level phlebotomist, and there was no reason physically that she 

could not do the job, but she had no practical experience. She was also not currently capable of 

doing anything because of her knee injury. 

 2

 The record indicates that appellant underwent a right total knee replacement in 2009. OWCP File 

No. xxxxxx185. 
3

On November 5, 2014 OWCP hearing representative issued a decision affirming the 

reduction of appellant’s wage-loss compensation. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of her duty.3

 “Disability” means the incapacity, 

because of an employment injury, to earn the wages the employee was receiving at the time of 

injury. It may be partial or total.4

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. If the actual earnings of the employee do 

not fairly and reasonably represent her wage-earning capacity, or if the employee has no actual 

earnings, her wage-earning capacity as appears reasonable under the circumstances is determined 

with due regard to the nature of her injury, the degree of physical impairment, her usual 

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

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

her disabled condition.5

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

modification of compensation benefits.6 When OWCP makes a medical determination of partial 

disability and of the 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 labor market, that fits the 

employee’s capabilities in light of 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 Albert C. Shadrick will determine the 

percentage of the employee’s loss of wage-earning capacity.7

ANALYSIS 

When appellant was totally disabled for her work due to bilateral carpal tunnel injury, 

OWCP paid her compensation for total wage loss. Appellant underwent surgery on both wrists, 

and Dr. Quraishi, the attending hand specialist, completed work capacity evaluations indicating 

there was no reason appellant could not work eight hours a day with restrictions. The medical 

 3

 5 U.S.C. § 8102(a). 

4

 20 C.F.R. § 10.5(f). 

5

 5 U.S.C. § 8115(a) 

6 Harold S. McGough, 36 ECAB 332 (1984). 

7 Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953). 
4

evidence thus made clear that appellant’s injury no longer totally disabled her for work. It 

remained for OWCP to determine her capacity to earn wages. 

Appellant received vocational training to become a phlebotomist. When she was unable 

to obtain placement with a private employer within the time frame set by the rehabilitation 

counselor, the rehabilitation counselor found that appellant was nonetheless able to perform the 

selected job of phlebotomist based on the medically determinable residuals of her injury and 

taking into consideration all significant impairments and pertinent nonmedical factors. She duly 

conducted a labor market survey and found that the job was being performed in sufficient 

numbers so as to be reasonably available to appellant within her commuting area. Accordingly, 

OWCP reduced appellant’s compensation to reflect her capacity to earn entry-level wages as a 

phlebotomist. 

Appellant’s principal argument is that she has been unable to secure a job as a 

phlebotomist. As the Board explained in the case of J.Q.,

8

 the very fact that the claimant was 

unable to secure a position in the open labor market made it necessary to determine her wageearning capacity on the basis of a position deemed suitable but not actually held. Such a position 

must be performed in sufficient numbers within the claimant’s commuting area. If it is, as the 

rehabilitation counselor confirmed, then the position is deemed to be reasonably available 

notwithstanding the claimant’s failure to secure a position. It must be remembered that OWCP 

did not reduce the claimant’s compensation based on actual wages. It reduced her compensation 

under section 8115(a) of FECA based on her capacity to earn wages in her partially disabled 

condition. 

In short, appellant was no longer totally disabled for work and was no longer entitled to 

compensation for total wage loss. Even though she was not currently able to find a job as a 

phlebotomist, she had the capacity to earn wages in that position, and it was found that such jobs 

were reasonably available to her within her commuting area. OWCP has met its burden of proof 

to reduce appellant’s compensation benefits. 

With respect to appellant’s right total knee replacement, the Board notes that Dr. Quraishi 

was aware of OWCP’s acceptance of her right knee injury when he completed the last work 

capacity evaluations before OWCP reduced her compensation. Dr. Quraishi remained of the 

opinion that there was no reason appellant could not work eight hours a day with restrictions. 

As OWCP followed proper procedure in determining appellant’s capacity to earn entrylevel wages as a phlebotomist, the Board will affirm OWCP’s November 5, 2014 decision. 

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 appellant has the capacity to earn wages as a phlebotomist and is 

therefore no longer entitled to compensation for total disability. 

 8

 Docket No. 13-395 (issued May 1, 2013). 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board