United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Sutter Creek, CA, Employer 

__________________________________________ 

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Docket No. 15-0598 

Issued: June 22, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 23, 2015 appellant filed a timely appeal from a January 13, 2015 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 benefits effective 

January 13, 2015 based on her capacity to earn wages in the constructed position of surveillance 

system monitor. 

FACTUAL HISTORY 

On December 13, 1996 appellant, then a 49-year-old rural mail carrier, filed an 

occupational disease claim alleging that the repetitive motion of her job caused or aggravated her 

 1

 5 U.S.C. § 8101 et seq. 
2

bilateral carpal tunnel syndrome. OWCP accepted the claim for bilateral carpal tunnel 

syndrome, right elbow contusion,2 and right lesion of ulnar nerve. It authorized compensation 

benefits as well as surgical releases on January 6, March 2, and June 2, 1997 and 

November 15, 2012. By decision dated December 2, 2000, OWCP awarded appellant a schedule 

award for 19 percent permanent impairment of the right arm, and 10 percent permanent 

impairment of the left arm. The period of the award ran 90.48 weeks from August 21, 2000 to 

May 16, 2002. Appellant was subsequently retained on OWCP’s periodic compensation rolls. 

On February 15 and May 16, 2013 Dr. Peter N. Sfakianos, a Board-certified orthopedic 

surgeon, stated that appellant had right cubital tunnel syndrome. He opined that she could return 

to modified work with restrictions of no repetitive motion of the right elbow. 

On June 6, 2013 appellant was referred to vocational rehabilitation services for 

reemployment plan development. The employing establishment offered appellant a limited-duty 

assignment on June 19, 2013, which appellant refused on June 20, 2013. 

In a July 15, 2013 CA-17 duty status report, Dr. Sfakianos stated that appellant was able 

to do modified work, but needed to avoid repetitive motion of the right elbow. He opined that 

appellant could resume work as of July 15, 2013 with the following restrictions: work 8.5 hours 

per day with sitting intermittently 5 hours; walking intermittently 4 hours; standing intermittently 

4 hours; climbing intermittently 4 hours; kneeling intermittently 4 hours; bending/stooping 

intermittently 4 hours; twisting intermittently 4 hours; pushing/pulling 25 pounds 1 hour 

intermittently; simple grasping 4 hours intermittently; fine manipulation 4 hours intermittently; 

reaching above shoulder 4 hours intermittently; driving vehicle 4 hours intermittently; and 

operating machinery 4 hours intermittently. 

Following vocational rehabilitation testing, a vocational assessment, and interview, 

Michael Frank, the vocational rehabilitation counselor, identified the position of surveillance 

system monitor and call-out operator3

 as being available within appellant’s physical limitations, 

vocational skills, and geographical area. The surveillance system monitor position, as it 

appeared in DOT No. 379.367-010, was described as follows: “monitors premises of public 

transportation terminals to detect crimes or disturbances using closed circuit television monitors, 

and notifies authorities by telephone of need for corrective action. Observes television screens 

that transmit in sequence views of transportation facility sites. Pushes hold button to maintain 

surveillance of location where incident is developing, and telephones police or other designated 

agency to notify authorities of location of disruptive activity. Adjusts monitor controls when 

required to improve reception, and notifies repair service of equipment malfunctions.” The 

position was classified as a sedentary position which entailed exertion of up to 10 pounds of 

force occasionally and /or a negligible amount of force frequently to lift, carry, push, pull, or 

otherwise move objects, including the human body. Sedentary work involved sitting most of the 

time, but may require walking or standing for brief periods of time. The vocational rehabilitation 

 2

 Case number xxxxxx625 with date of injury of February 20, 1996 which was accepted for right elbow contusion 

was combined into the current case. Under case number xxxxxx366, OWCP accepted that on January 2, 1998 

appellant sustained temporary aggravation of bilateral basal joint arthrosis. 

3

 The call-out operator has Department of Labor, Dictionary of Occupational Titles (DOT) 237.367-014. 
3

counselor noted that appellant was a high school graduate and attended Colorado State 

University for two years taking general education courses. Appellant worked as a rural mail 

carrier at the Lone Post Office from 1988 to 2012 and worked for three months as a census clerk 

SVP-4 in 2010. To meet the specific vocational preparation (SVP) requirements, the vocational 

rehabilitation counselor noted that appellant would attend one day of level I guard card training 

at the Security Academy at McClelland. 

On August 19, 2013 appellant completed her level I security guard training at the 

Security Academy at McClelland and completed level II guard card training on September 3 

and 5, 2013. 

Appellant underwent 90 days of placement services from August 20 to November 17, 

2013, which were unsuccessful. It was noted during the September 25, 2013 conference that 

appellant on her own had sought training for becoming a bus driver. Appellant was made aware 

that work restrictions had been placed on her upper extremities and that a bus driver position was 

not an authorized vocational rehabilitation position. 

In July 15 and September 6, 2013 progress reports, Dr. Sfakianos noted the diagnosis of 

right cubital tunnel syndrome and status post cubital tunnel release. He continued to opine that 

appellant could return to modified work with no repetitive motion of the right elbow. 

In a November 20, 2013 letter, Mr. Frank explained that job placement was not 

successful. He noted that appellant participated in job searches primarily online and did not 

provide those documented contacts to him. Appellant preferred to be a commercial driver and 

paid for her own training to obtain a class B commercial driver’s license. She had one interview 

for a scanning clerk during the placement period at the employing establishment, but was not 

hired. 

Tory Keaton, the rehabilitation specialist, found in his December 20, 2013 closure report 

that appellant met the SVP-2 level (unskilled up to 30 days to learn) for the targeted positions of 

surveillance system monitor and call-out operator as she was a high school graduate, attended 

college for two years, worked as a rural carrier from 1988 to 2012, and as a census clerk for three 

months in 2010. This was supplemented by level I and level II guard card training for three days 

at the Security Academy at McClelland. Mr. Keaton found that both targeted positions were 

medically and vocationally suitable and existed in sufficient numbers in the commuting area. He 

noted the salary for the surveillance system monitor position ranged from $9.50 to $10.75 per 

hour ($380.00 to $430.00 per week) and recommended that the surveillance system monitor 

position be used with a salary of $9.50 per hour for an entry-level position. 

Mr. Keaton stated that the guard card training prepared appellant for a guard position and 

qualified her to obtain employment as a surveillance system monitor. He noted that while the 

Department of Labor, Dictionary of Occupational Titles indicated that the position of 

surveillance system monitor was a government service position, the Department of Labor, 

Dictionary of Occupational Titles has not been updated since 1991 and this position also existed 

in the private sector and the public sector. Mr. Frank noted that all employers surveyed were 

private-sector employers. 
4

In a May 16, 2014 report, Dr. Sfakianos noted that appellant no longer was working for 

the employing establishment as they were not able to accommodate her long-term restrictions. 

Appellant was sent to vocational rehabilitation and she wanted to be a commercial bus driver. 

Dr. Sfakianos noted that appellant passed her driver’s test and had a valid commercial license. 

He concluded that she could return to modified work and perform any task that did not require 

repetitious motion of the right elbow. 

In a June 12, 2014 notice, OWCP advised appellant that it proposed to reduce her 

compensation for wage loss because the medical and factual evidence of record established that 

she was no longer totally disabled. It found that she had the capacity to earn the wages of a 

surveillance system monitor. OWCP based her wage-earning capacity at the rate of $402.60 per 

week and attached a July 26, 2013 Form OWCP-66 created by Mr. Frank, the rehabilitation 

counselor, for the Department of Labor, Dictionary of Occupational Titles position of call-out 

operator, which had a weekly wage of $402.60. It requested that appellant submit additional 

evidence or argument within 30 days if she disagreed with the proposed action. 

Appellant responded, stating that she had three conditions covered by this case number, 

but her condition under case number xxxxxx366 was not included even though it involved the 

same part of the body.4

 She stated that this last claim was not reflected in the determination of 

suitable jobs. Appellant stated that the surveillance system monitor job did not exist and relevant 

numbers of availability could not be determined. She also argued that she could not medically 

perform the job requirements of either targeted position and no one would hire her because of her 

age. 

In a May 16, 2014 report, Dr. Sfakianos continued to opine that appellant could work 

modified duty that did not require repetitious motion of the right elbow. In a June 2, 2014 letter, 

he stated her underlying industrial condition was that of overuse syndrome affecting both upper 

extremities. Dr. Sfakianos noted that appellant did well status post right cubital tunnel release in 

response to right cubital tunnel syndrome and improvements were noted status post right elbow 

cubital tunnel release. However, appellant still had bilateral overuse syndrome causing 

permanent dysfunction, which restricted her activities, particularly repetitive activities of the 

upper extremities. Dr. Sfakianos opined that, as of appellant’s last visit on May 16, 2014, she 

was permanently partially disabled and could return to modified work but was prohibited from 

performing any activity that required repetitive motion of the elbow. 

Updated 2014 labor market research and OWCP-66 forms prepared by Mr. Frank for the 

targeted positions of surveillance systems monitor and call-out operator were provided, with both 

targeted positions stated as being medically and vocationally suitable and existing in sufficient 

numbers in appellant’s commuting area. The salary range for the surveillance system monitor 

position was from $9.50 to $10.75 per hour and the salary range for the call-out operator was 

from $9.75 to $10.80 per hour. 

By decision dated January 13, 2015, OWCP reduced appellant’s compensation effective 

January 13, 2015 based on her capacity to earn wages in the constructed position of surveillance 

 4 See supra note 2. Under case number xxxxxx366, OWCP accepted that on January 2, 1998 appellant sustained 

temporary aggravation of bilateral basal joint arthrosis. 
5

system monitor. It found that the evidence established that she was vocationally and physically 

capable of working as a surveillance system monitor and was capable of earning $402.60 per 

week. 

LEGAL PRECEDENT 

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

modification of compensation benefits.5 An injured employee who is either unable to return to 

the position held at the time of injury or unable to earn equivalent wages, but who is not totally 

disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.6

 

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 the employee’s 

wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is 

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

employee’s usual employment, age, qualifications for other employment, the availability of 

suitable employment, and other factors and circumstances which may affect his or her wageearning 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 counselor or 

specialist for selection of a position, listed in the Department of Labor, Dictionary of 

Occupational Titles or otherwise available in the open market, that fit the employee’s capabilities 

with regard to his or her physical limitations, education, age, and prior experience. Once this 

selection is made, a determination of wage rate and availability in the 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. Shadrick8 and codified by regulations at 

20 C.F.R. § 10.4039

 should be applied. Subsection(d) of the regulations provide that the 

employee’s wage-earning capacity in terms of percentage is obtained by dividing the employee’s 

actual earnings or the pay rate of the position selected by OWCP, by the current pay rate for the 

job held at the time of the injury.10 

 5 H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 

197 (2005). 

6

 20 C.F.R. §§ 10.402, 10.403. 

7

 5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 

584 (1996). 

8

 5 ECAB 376 (1953). 

9

 20 C.F.R. § 10.403. 

10 Id. at § 10.403(d). 
6

In determining an employee’s wage-earning capacity based on a position deemed suitable 

but not actually held, OWCP must consider the degree of physical impairment, including 

impairments resulting from both injury-related and preexisting conditions, but not impairments 

resulting from post injury or subsequently acquired conditions.11 Any incapacity to perform the 

duties of the selected position resulting from subsequently acquired conditions is immaterial to 

the loss of wage-earning capacity that can be attributed to the accepted employment injury and 

for which appellant may receive compensation. Additionally, 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 

ANALYSIS 

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome, contusion of right 

elbow, and lesion of the right ulnar nerve and paid compensation benefits and for surgical 

releases. Appellant was placed on the periodic compensation rolls for total disability resulting 

from this injury and subsequently referred for vocational rehabilitation services and direct 

placement as the employing establishment did not have a position available within her 

restrictions. 

On February 15 and May 16, 2013 Dr. Sfakianos opined that appellant could return to 

modified work with restrictions of no repetitious motion of the right elbow. In a July 15, 2013 

Form CA-17 duty status report, he stated that appellant was able to do modified work and needed 

to avoid repetitive motion of the right elbow. Dr. Sfakianos opined that appellant could work 

with the following restrictions: work 8.5 hours per day with sitting intermittent 5 hours; walking 

intermittent 4 hours; standing intermittent 4 hours; climbing intermittent 4 hours; kneeling 

intermittent 4 hours; bending/stooping intermittent 4 hours; twisting intermittent 4 hours; 

pushing/pulling 25 pounds 1 hour intermittent; simple grasping 4 hours intermittent; fine 

manipulation 4 hours intermittent; reaching above shoulder 4 hours intermittent; driving vehicle 

4 hours intermittent; and operating machinery 4 hours intermittent. 

OWCP’s vocational rehabilitation specialist determined that she was able to perform the 

position of surveillance system monitor 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 surveillance system monitor would monitor public transportation terminals to detect 

crimes or disturbances using closed circuit television monitors, and notify authorities by 

telephone of need for corrective action. The monitor would observe television screens that 

transmitted in sequence views of transportation facility sites, push a hold button to maintain 

surveillance of a location where an incident was developing, and telephone police or other 

designated agency to notify authorities of the location of disruptive activity. Adjustments would 

be made to monitor controls when required to improve reception, and repair service would be 

notified of equipment malfunctions. The position was classified as a sedentary position which 

entailed exertion of up to 10 pounds of force occasionally and/or a negligible amount of force 

frequently to lift, carry, push, pull, or otherwise move objects, including the human body. 

 11 James Henderson, Jr., 51 ECAB 268 (2000). 

12 Id. 
7

Sedentary work involved sitting most of the time, but may also require walking or standing for 

brief periods of time. 

Appellant’s vocational rehabilitation counselor and specialists are experts in the field of 

vocational rehabilitation and OWCP may rely on his opinion regarding reasonable availability 

and vocational suitability of the surveillance system monitor position.13 In addition, a review of 

the medical evidence of record reveals that appellant was physically capable of performing the 

position. Appellant’s physician agreed that appellant could perform modified work, but could 

not perform any tasks which involved repetitive motion of the right elbow. The Board finds that 

the work restrictions recommended by Dr. Sfakianos would allow appellant to work as a 

surveillance system monitor, a position which is essentially sedentary in nature. While appellant 

argued that she could not physically perform the surveillance system monitor position, she did 

not submit any medical evidence to support her allegation. 

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 surveillance system monitor represented her wage-earning 

capacity.14 While she also argued before OWCP and on appeal that her other medical conditions 

were not taken into account. The evidence of record establishes that appellant had the requisite 

physical ability, skill, and experience to perform the position of surveillance system monitor and 

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

area. 

The Board finds however that OWCP did not properly calculate appellant’s 

compensation effective January 13, 2015 based on her capacity to earn wages as a surveillance 

system monitor. The vocational rehabilitation specialist determined that an entry-level salary of 

$9.50 per hour ($9.50 x 40 = $380.00) be used to calculate appellant’s wage-earning capacity as 

a surveillance system monitor, but OWCP used a weekly wage of $402.60, based upon the 

earlier July 26, 2013 OWCP Form 66 for a call-out operator, in determining her wage-earning 

capacity. OWCP made no findings as to why the recommendation regarding the surveillance 

system monitor wage rate was disregarded.15 The Board will, therefore, remand the case to 

OWCP for a recalculation of appellant’s wage-earning capacity based upon the entry-level salary 

for the surveillance system monitor position. 

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

14 Clayton Varner, 37 ECAB 248, 256 (1985). 

15 See 20 C.F.R. § 10.126. 
8

CONCLUSION 

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

January 13, 2015 based on her capacity to earn wages in the constructed position of surveillance 

system monitor; however, it did not properly calculate her wage-earning capacity based on the 

recent weekly wages for surveillance system monitor position. 

ORDER 

IT IS HEREBY ORDERED THAT the January 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision. 

Issued: June 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board