United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.R., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CITIZENSHIP & IMMIGRATION SERVICES, 

Anaheim, CA, Employer 

__________________________________________ 

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Docket No. 17-0085 

Issued: April 20, 2017 

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 18, 2016 appellant, through counsel, filed a timely appeal from a May 4, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA), and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly reduced appellant’s wage-loss compensation based 

on her wage-earning capacity in the selected position of customer complaint clerk. 

FACTUAL HISTORY 

On May 30, 2006 appellant, then a 42-year-old asylum officer, filed an occupational 

disease claim (Form CA-2) alleging that she sustained left carpal tunnel syndrome (CTS) as a 

result of using office equipment on a daily basis (OWCP File No. xxxxxx136). The record 

indicates that appellant underwent left carpal tunnel release surgery on December 12, 2005. 

OWCP accepted the claim for left CTS and left trigger finger on July 31, 2006. She received 

intermittent wage-loss compensation through July 11, 2006. 

On July 31, 2006 appellant filed a (Form CA-2) claiming that she had sustained 

additional injuries, including right CTS, as a result of using office equipment (OWCP File No. 

xxxxxx762). OWCP accepted the claim for right CTS, right wrist sprain, and right elbow and 

forearm sprains. It administratively combined the two claims, with the right arm claim, OWCP 

File No. xxxxxx762, serving as the master file. 

Appellant worked light duty with no repetitive hand movement, and no pushing or 

pulling. OWCP further developed the medical record with respect to whether appellant 

continued to have employment-related residuals or disability. A second opinion physician, 

Dr. J. Pierce Conaty, a Board-certified orthopedic surgeon, opined in a June 15, 2011 report that 

appellant did not have any employment-related residuals and could return to regular duty. The 

attending physician, Dr. Badi Jeffers, an osteopath, opined in a July 12, 2011 report that he 

disagreed with Dr. Conaty, and indicated that appellant had permanent work restrictions. 

OWCP found a conflict in medical opinion between Drs. Conaty and Jeffers, pursuant to 

5 U.S.C. § 8123(a), and selected Dr. Alan Roberts, a Board-certified orthopedic surgeon, as a 

referee physician to resolve the conflict. In a report dated November 8, 2011, Dr. Roberts opined 

that she continued to have employment-related residuals. With respect to work restrictions, 

Dr. Roberts opined that appellant could work as an asylum officer, if she did not exceed 30 

minutes of typing without a 5-minute break. 

The record indicates that on December 14, 2012, the employing establishment terminated 

appellant’s employment due to an inability to perform her employment duties as a result of a 

medical condition.3

 Appellant began receiving wage-loss compensation as of 

December 15, 2012. 

OWCP referred appellant for vocational rehabilitation services in June 2013. In an 

August 26, 2013 letter, the rehabilitation counselor indicated the plan was to have appellant 

complete a training course to update her computer software skills. She noted that appellant 

wanted more training with the Dragon voice recognition software, which would be provided in 

 3

 The employing establishment indicated that it had made accommodations, including providing Dragon voice 

recognition software used with word processing and other programs. 
3

the training course. According to the counselor, two selected positions would be suitable after 

completing training: customer complaint clerk and administrative assistant. In a job 

classification (Form CA-66) dated August 22, 2013, she identified the customer complaint clerk 

position as Department of Labor, Dictionary of Occupational Titles, No. 241.367-014.4

 The 

position was sedentary, with 10 pounds lifting, and occasional reaching, handling, and fingering. 

The rehabilitation counselor indicated that the position was available in appellant’s area with 

wages from $360.00 to $560.00 per week. 

Appellant completed the training course as of January 30, 2014. The rehabilitation 

counselor indicated in a May 23, 2014 memorandum that the position of customer complaint 

clerk remained suitable for appellant. 

OWCP referred appellant for a second opinion examination with Dr. Michael Einbund, a 

Board-certified orthopedic surgeon. In a report dated February 17, 2015, Dr. Einbund provided a 

history, results on examination, and review of medical records. He opined that appellant could 

perform the customer complaint clerk position. Dr. Einbund noted that it involved only 

occasional reaching, handling, and fingering. 

In a report dated February 27, 2015, Dr. Jeffers provided results on examination and 

indicated that x-rays were ordered. He noted in a May 29, 2015 report that he had a copy of 

Dr. Einbund’s report, and he was “essentially in agreement with” Dr. Einbund with respect to 

residuals, treatment, and work restrictions. 

In a letter dated May 15, 2015, OWCP advised appellant that it proposed to reduce her 

compensation because she had the capacity to earn wages of $360.00 per week as a customer 

complaint clerk. It advised appellant that she had 30 days to submit additional evidence if she 

disagreed with the proposed action. 

By decision dated June 19, 2015, OWCP reduced appellant’s wage-loss compensation, 

finding she had the capacity to earn $360.00 per week. It provided a worksheet indicating that 

appellant’s net compensation every 28 days would be $3,891.92, based on a loss of wage-earning 

capacity of $1,493.57 per week. 

 4

 The duties of the customer complaint clerk (DOT No. 241.367-014) were described in the Department of 

Labor’s Dictionary of Occupational Titles as: Investigates customer complaints about merchandise, service, billing, 

or credit rating: Examines records, such as bills, computer printouts, microfilm, meter readings, bills of lading, and 

related documents and correspondence, and converses or corresponds with customer and other company personnel, 

such as billing, credit, sales, service, or shipping, to obtain facts regarding customer complaint. Examines pertinent 

information to determine accuracy of customer complaint and to determine responsibility for errors. Notifies 

customer and designated personnel of findings, adjustments, and recommendations, such as exchange of 

merchandise, refund of money, credit of customer’s account, or adjustment of customer’s bill. May recommend to 

management improvements in product, packaging, shipping methods, service, or billing methods and procedures to 

prevent future complaints of similar nature. May examine merchandise to determine accuracy of complaint. May 

follow up on recommended adjustments to ensure customer satisfaction. May key information into computer to 

obtain computerized records. May trace missing merchandise and be designated tracer clerk (clerical). May 

investigate overdue and damaged shipments or shortages in shipments for common carrier and be designated overshort-and-damage clerk (clerical). May be designated according to type of complaint adjusted as bill adjuster 

(clerical); merchandise-adjustment clerk (retail trade); service investigator (utilities, tel. & tel.) 
4

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on July 10, 2015. A hearing was held on February 17, 2016. Counsel contended that there was 

no evidence in the record establishing that employers could accommodate someone whose 

medical restrictions required the use of Dragon voice recognition software. She further argued 

that there was no evidence in the record that in the market survey the VA rehabilitation counselor 

asked potential employers if they could accommodate the case of the software. 

In a February 11, 2016 report, Dr. Jeffers provided results on examination. He reported 

appellant had permanent modified work restrictions, without discussing specific restrictions. 

By decision dated May 4, 2016, the hearing representative affirmed the June 19, 2015 

decision. She found appellant’s compensation was properly reduced to reflect her wage-earning 

capacity as a customer complaint clerk. 

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 in such benefits.5

Under 5 U.S.C. § 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 wage-earning 

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 his disabled condition.6

OWCP must initially determine a claimant’s medical condition and work restrictions before 

selecting an appropriate position that reflects his or her wage-earning capacity. The medical 

evidence upon which OWCP relies must provide a detailed description of the condition.7 

Additionally, the Board has held that a wage-earning capacity determination must be based on a 

reasonably current medical evaluation.8

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. Once this selection is made, a 

determination of wage rate and availability in the labor market should be made through contact 

 5 Carla Letcher, 46 ECAB 452, (1995). 

6 See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a). 

7 William H. Woods, 51 ECAB 619 (2000). 

8 John D. Jackson, 55 ECAB 465 (2004). 
5

with the state employment service or other applicable service.9

 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.10

ANALYSIS 

OWCP based its June 19, 2015 wage-earning capacity decision on appellant’s capacity to 

earn wages as a customer complaint clerk. It must initially determine a claimant’s medical 

condition and work restrictions before selecting an appropriate position that reflects his or her 

wage-earning capacity.11 In a February 17, 2015 report, Dr. Einbund provided a complete report 

and noted his review of the position description for the customer complaint clerk position. He 

opined that appellant could perform the job duties described. Dr. Einbund noted that it was a 

sedentary position with limited reaching, handling, and fingering. There is no probative 

evidence of record to establish that appellant was unable to perform the selected position. 

Dr. Jeffers indicated in his May 29, 2015 report that he was essentially in agreement with 

Dr. Einbund regarding work restrictions. In a February 27, 2016 report, he briefly referred to 

permanent work restrictions, but he did not identify specific restrictions. The Board finds the 

weight of the medical evidence establishes appellant had the physical capacity to perform the 

duties of the selected position.12

The Board also finds that appellant had the necessary vocational and educational 

preparation for the selected position of customer complaint clerk. Appellant successfully 

completed computer training in January 2014, and the rehabilitation counselor indicated the 

position was vocationally suitable. In addition, the rehabilitation counselor advised that the 

position of customer complaint clerk was reasonably available in the local labor market with an 

entry-level weekly wage of $360.00. 

The Board finds that OWCP considered the appropriate factors in determining that the 

customer complaint clerk position represented appellant’s wage-earning capacity. These factors 

included availability of suitable employment and her physical limitations, usual employment, 

age, and employment qualifications. The evidence established that appellant had the requisite 

physical ability, skill, and experience to perform the position and that such a position was 

reasonably available within the general labor market of her commuting area.13

The application of the Shadrick formula was then made to determine the reduction in 

compensation. OWCP uses the pay rate for compensation purposes, which in this case was the 

 9 See Dennis D. Owen, 44 ECAB 475 (1993). 

10 5 ECAB 376 (1953); see also 20 C.F.R. § 10.403. 

11 See J.E., Docket No. 16-0006 (issued November 16, 2016). 

12 Id. 

13 Id.; see also supra note 8. 
6

date disability began on December 15, 2012.14 It found the weekly pay rate when disability 

began on December 15, 2012 was $1,866.96 per week. The wage-earning capacity in terms of 

percentage is determined by dividing the earnings of $360.00 by the current pay rate for the date 

of injury job, resulting in a 20 percent wage-earning capacity.15 Appellant’s loss of wageearning capacity in terms of dollars is determined by multiplying the pay rate for compensation 

purposes by the percentage of wage-earning capacity, and the resulting dollar amount is 

subtracted from the pay rate for compensation purposes to obtain the loss of wage-earning 

capacity.16 The Board finds that OWCP properly reduced appellant’s compensation in this case. 

On appeal, counsel reiterates the argument that OWCP failed to identify a suitable 

position, because employers were not asked about use of the Dragon software. She cites K.S.17

in support of her argument. However, the instant case is distinguishable from K.S. in that it 

involved a selected position that was not within the physical restrictions as established by the 

medical evidence.18 In the present case, the use of the voice recognition software was never a 

medical restriction. The medical evidence showed that appellant could perform the duties of the 

position, without reference to use of any voice recognition software. For the reasons discussed 

above, the Board finds that OWCP properly reduced appellant’s compensation to reflect her 

wage-earning capacity under 5 U.S.C. § 8115(a). 

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s wage-loss compensation based 

on her wage-earning capacity in the selected position of customer complaint clerk. 

 14 See 20 C.F.R. § 10.5(s), which provides the pay rate for compensation is the pay at time of injury, time 

disability begins or the time disability recurs, if the recurrence begins more than six months after return to regular 

full-time work, whichever is greater. 

15 Id. at § 10.403(d). 

16 Id. at § 10.403(e). 

17 Docket No. 14-0752 (issued July 24, 2014). 

18 The selected position of cashier required lifting of 20 pounds occasionally, which was beyond the claimant’s 

established work restrictions. The assertion of the rehabilitation counselor that special accommodations could be 

made was not sufficient to make the position medically suitable. 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 4, 2016 is affirmed. 

Issued: April 20, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board