United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL

BUREAU OF PRISONS-METROPOLITAN 

DETENTION CENTER, Los Angeles, CA, 

Employer

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Docket No. 17-1777

Issued: January 16, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 17, 2017 appellant, through counsel, filed a timely appeal from a June 2, 2017 

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 determined that the selected position of a customer 

complaint clerk represented appellant’s wage-earning capacity as of July 24, 2016.

FACTUAL HISTORY

On January 25, 2006 appellant, then a 39-year-old communications specialist, filed a

traumatic injury claim (Form CA-1), alleging that, on January 13, 2006, he was ascending stairs 

while carrying boxes of equipment when he tripped and hit his right knee on the stairs while in the 

performance of his job duties. OWCP initially accepted the claim for a right knee contusion and

right knee patella chondromalacia. It subsequently expanded acceptance to the claim to include:

right knee derangement; right venous embolism and thrombosis of deep vessels of lower extremity 

not otherwise specified; tear of the medial meniscus of the right knee; derangement of the right 

meniscus, not elsewhere classified; and acromioclavicular sprain of the right shoulder and upper 

arm.3 As appellant was unable to return to his date-of-injury position, OWCP paid wage-loss 

compensation benefits. 

Appellant underwent a right knee arthroscopy on July 7, 2009. He was totally disabled 

from work from June 1, 2007 to January 13, 2008. Appellant returned to work on 

January 14, 2008. He remained off work until December 29, 2008. Appellant stopped work again 

on January 19, 2009 because the employing establishment could no longer accommodate his work 

restrictions.

In response to a November 23, 2015 request from OWCP for a medical opinion regarding 

appellant’s ability to work, on December 11, 2015 Dr. Kourosh Shamlou, a Board-certified 

orthopedic surgeon and treating physician, opined that appellant was not capable of performing 

his usual job. However, Dr. Shamlou advised that appellant was capable of performing modified 

duties. He advised permanent restrictions of no more than four hours of sitting, no more than one 

hour of walking, standing, reaching, reaching above the shoulder, twisting, bending and stooping, 

operating a motor vehicle to and from work and no more than two hours of operating motor 

vehicles at work. Additionally, Dr. Shamlou recommended no more than one hour of pushing, 

pulling, and lifting and no more than 10 pounds.

On December 23, 2015 OWCP referred appellant for vocational rehabilitation as the 

employing establishment was unable to accommodate the restrictions. 

On December 29, 2015 OWCP noted that the current medical evidence documented 

appellant’s work abilities. It advised appellant that he was being referred for vocational 

 

3 The present claim was assigned OWCP File No. xxxxxx937. Appellant also has other claims before OWCP, 

including one wherein he alleged injury to his left knee on May 11, 1999 when restraining an inmate in this thencapacity as a correctional officer. OWCP assigned that claim File No. xxxxxx870 and accepted it for left knee strain. 

It has administratively combined File Nos. xxxxxx937 and xxxxxx870, with File No. xxxxxx937 serving as the master 

file. 
3

rehabilitation as Dr. Shamlou opined that he was capable of performing modified duties with 

imposed restrictions. 

By letter dated January 28, 2016, OWCP requested that Dr. Shamlou clarify appellant’s 

work restrictions. In particular, it requested that he clarify whether appellant was limited to four 

hours of continuous sitting and whether he could work only six hours per day. OWCP also 

explained that they were trying to determine if appellant was capable of performing sedentary 

work, noting that the physical requirements required occasional lifting of up to 10 pounds, on an 

intermittent basis. Furthermore, appellant must be able to sit, stand and walk up to two and a half 

hours on an intermittent basis; however, he would be able to change positions (sit, stand, and walk 

as needed) during the workday. OWCP also asked Dr. Shamlou if based upon the definition of 

sedentary work, would appellant be able to work eight hours per day, if not, how many hours could 

he work.

In a letter dated February 16, 2016, appellant indicated that he could not participate in the 

vocational rehabilitation program as he had fallen on the weekend of February 12, 2016 when his 

left leg gave out and he injured his knee, back, and shoulders. He noted that he may have to have 

surgery and he was currently in a leg immobilizer. Appellant provided a copy of the hospital 

records and a work excuse note. 

By letter dated February 22, 2016, Jeanine Metildi, the vocational rehabilitation counselor,

advised that she was submitting appellant’s vocational rehabilitation plan and supporting 

documentation without his signature because he cancelled their meeting on February 16, 2016 and 

asserted that he had an accident and could not meet with her. She further noted that he indicated 

he did not want the suggested plan and wanted to attend paralegal training. 

In her report dated March 6, 2016, Ms. Metildi documented that she had spoken with

Dr. Shamlou’s office on February 5, 2016 and was informed that appellant could return to his usual 

and customary occupation with the exception that he could have no contact with inmates and would 

need to change positions as necessary.

In a March 21, 2016 letter advising her plan justification, Ms. Metildi noted that a job 

placement plan had been developed for appellant due to his education background and skills. She 

recommended job placement for information clerk and customer complaint clerk. Ms. Metildi

noted that appellant had a B.S. degree in computer systems security and an A.S. degree in computer

and electronic engineering, and his most recent work experience as a computer specialist with the

employing establishment. She explained that both of the selected jobs were appropriate for 

appellant since they were sedentary and would not require lifting over 10 pounds. Ms. Metildi

also indicated that the treating physician, Dr. Shamlou recommended no prolonged standing and 

walking, no kneeling and squatting, no lifting, pushing, pulling or carrying more than 10 to 15 

pounds, no at or above the shoulder work with the right arm, and no repetitive bending, twisting 

or stooping.

On June 1, 2016 OWCP notified appellant that it proposed to reduce his compensation for 

wage loss to $2,759.00 “each four weeks” as the medical and factual evidence established that he 

was no longer totally disabled, but rather partially disabled and had the capacity to earn wages as 

customer complaint clerk, Department of Labor’s Dictionary of Occupational Titles (DOT)
4

#237.367-0-22 at the rate of $600.00 per week. It noted that his wage-earning capacity was “less 

than the current pay” of his date-of-injury position. OWCP explained that the physical 

requirements of the customer complaint clerk did not exceed the restrictions imposed by

Dr. Shamlou in his December 11, 2015 report or conversation with Ms. Metildi on 

February 5, 2016. Appellant was advised that the rehabilitation counselor had reported that based 

upon his experience, education, medical restrictions, and a labor market survey, he was employable 

as a customer complaint clerk. OWCP informed appellant that his vocational rehabilitation 

counselor had documented that the customer complaint clerk position was reasonably available in 

his commuting area and that the entry pay level for the position was $400.00 per week; however,

as noted above, he was capable of earning $600.00 per week. It advised him that the physical 

requirements of the position were deemed to be vocationally suitable and consistent with the 

accepted work tolerance limitations. OWCP provided a calculation sheet indicating that 

appellant’s pay rate when his disability recurred on January 18, 2009 was $1,406.32 per week; the 

current adjusted pay rate for his job on the date of injury was $1,441.64 per week, effective 

March 15, 2016. It determined that he was currently capable of earning $600.00 per week, the pay 

rate for a customer complaint clerk. OWCP determined that appellant had 42 percent wageearning capacity, which resulted in an adjusted wage-earning capacity of $590.60 per week. It

determined that he had a loss of wage-earning capacity of $815.67 per week. OWCP concluded 

that, based upon a three-fourths compensation rate, appellant’s compensation would be $611.75

per week, increased by cost-of-living adjustments to $611.75 or $2,759.00 every four weeks. It

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

to the proposed reduction. No response was received.

By decision dated July 11, 2016, OWCP reduced appellant’s compensation, effective 

July 24, 2016, based on his ability to work as a full-time customer complaint clerk, which was 

found to be medically and vocationally suitable. 

In a letter dated August 25, 2016, appellant noted that the decision to reduce his 

compensation was based on the December 11, 2015 report of Dr. Shamlou. However, he explained 

that he had sustained a new injury, which was directly related to his employment injuries and a 

report was issued on February 14, 2016 that outlined his condition. Appellant argued that this 

omission was a direct violation and the medical evidence supported that he was totally disabled 

and did not have the capacity to earn wages. Subsequently, OWCP referred him for a second 

opinion examination on October 31, 2016 to Dr. Joseph S. Klemek, a Board-certified orthopedic 

surgeon to determine his ability to work.

In a November 15, 2016 report, Dr. Klemek noted appellant’s history of injury and 

treatment, examined appellant and provided findings. He determined that for the right knee, 

appellant reported right knee pain that was present all the time and weakness in the right knee with

a feeling of instability. Dr. Klemek found appellant had a scar from surgery with corresponding 

operative report and limited range of motion. He found atrophy of the right quadriceps and no 

evidence of laxity.

Regarding the right shoulder, Dr. Klemek found that subjectively, appellant reported pain 

and grinding in the shoulder. However, objectively, there are no findings. Dr. Klemek opined that 

appellant had a fair prognosis and no need for active ongoing medical treatment. He recommended 

access to symptomatic medication, performing home exercises and explained that during flare ups, 
5

he may benefit from cortisone injections. However, Dr. Klemek advised that appellant was not a 

candidate for surgical intervention. He advised that appellant continued to suffer some residuals; 

however, appellant’s subjective complaints outweighed his objective findings. Dr. Klemek

explained that there was evidence of residuals, and atrophy of the right quadriceps and some 

limited motion of the right knee and right shoulder. He explained that this was “more so due to 

guarding secondary to reported pain. I find no objective evidence of residuals for the right 

shoulder.”

On July 21, 2016 counsel requested a telephonic hearing, which was held before an OWCP 

hearing representative on March 20, 2017. During the hearing, counsel argued that the job title of 

a customer complaint clerk was outdated. He noted that, despite living in an expansive job market 

area and having the intellectual capacity to perform the position, the issue was whether appellant 

had the physical capability to perform the position. Appellant testified that he had ongoing 

swelling and pain on a daily basis. He noted that both knees and arms were affected and his hips 

were also involved. Appellant explained that he still received medical treatment on both knees 

and was under the care of Dr. Shamlou. Additionally, he noted that he received periodic cortisone 

injections and required prescription medication on a daily basis. 

By decision dated June 2, 2017, OWCP’s hearing representative affirmed the July 11, 2016 

decision.4

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.5

Section 8115(a) of FECA,

6 provides in determining compensation for partial disability, the 

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

fairly and reasonably represent 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 wage-earning capacity, must be accepted 

as such measure.7 If the actual earnings do not fairly and reasonably represent wage-earning 

capacity, or if the employee has no actual earnings, his/her wage-earning capacity is determined 

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

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

and other factors and circumstances which may affect his/her wage-earning capacity in the

disabled condition.8 Wage-earning capacity is a measure of the employee’s ability to earn wages 

 

4 Although a reference is made to a customer service representative in the June 2, 2017 decision, this appears to be 

a mistake, as the rest of the decision indicates customer complaint clerk.

5 Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984). See Pope D. Cox, 39 

ECAB 143, 148 (1988); 5 U.S.C. § 8115(a). 

6 5 U.S.C. § 8115. 

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

8 See Pope D. Cox, supra note 5. 5 U.S.C. § 8115(a).
6

in the open labor market under normal employment conditions.9 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.10 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.11

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 his/her 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.12 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.13

ANALYSIS

The Board finds that Dr. Shamlou, the treating physician, provided an opinion that 

established that appellant could perform the customer complaint clerk position. Dr. Shamlou

provided a December 11, 2015 report recommending that appellant could not perform his usual 

job, but advised that appellant was capable of performing modified duties. He recommended 

permanent restrictions of no more than four hours of sitting, no more than, one hour of walking, 

standing, reaching, reaching above the shoulder, twisting, bending and stooping, operating a motor 

vehicle to and from work and no more than two hours of operating motor vehicles at work. 

Additionally, Dr. Shamlou recommended no more than one hour of pushing, pulling, and lifting 

and no more than 10 pounds. Ms. Metildi also contacted Dr. Shamlou and determined that 

appellant could not engage in prolonged standing and walking, no kneeling and squatting, no 

lifting, pushing, pulling or carrying more than 10 to 15 pounds, no at or above the shoulder work 

with the right arm, and no repetitive bending, twisting or stooping. 

Additionally, as the employing establishment could not accommodate appellant’s 

restrictions, Ms. Metildi, the vocational rehabilitation counselor, identified two positions that were 

suitable and in accordance with appellant’s restrictions. Ms. Metildi explained that both of the 

selected jobs were appropriate for appellant since they were sedentary and would not require lifting 

over 10 pounds. She reiterated that the treating physician, Dr. Shamlou recommended no 

prolonged standing and walking, no kneeling and squatting, no lifting, pushing, pulling or carrying 

 

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

10 Id.

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

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

13 Id. See Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403(c)-(e). 
7

more than 10 to 15 pounds, no at or above the shoulder work with the right arm, and no repetitive 

bending, twisting or stooping. 

Ms. Metildi proceeded to identify an appropriate position that fit appellant’s capabilities.14 

She identified a customer complaint clerk position as being sedentary with occasional lifting of up 

to 10 pounds as within his physical limitations. Ms. Metildi indicated that the position fell within 

appellant’s work restrictions and was reasonably available in appellant’s commuting area. She

noted that the position was available in sufficient numbers so as to make it reasonably available 

within appellant’s commuting area and that the wage of the position was equal to $600.00 per 

week. Evidence from the rehabilitation counselor also establishes that appellant has the 

appropriate knowledge, training and background to perform the selected position. The Board finds 

that the customer complaint clerk position conforms to work restrictions set forth by Dr. Shamlou. 

The weight of the evidence of record establishes that appellant had the requisite physical ability, 

skill and experience to perform the position of customer complaint clerk. 

The Board also notes that during the hearing, counsel for appellant mentioned that the 

position was somewhat old fashioned or outdated, however, he did not dispute that the positions 

were not reasonably available. 

Consequently, OWCP met its burden of proof to establish that the constructed position of 

customer complaint clerk represented his wage-earning capacity effective July 24, 2016.

On appeal counsel argues that the decision references a customer service representative, 

which is not what the vocational rehabilitation counselor recommended. However, the Board notes 

that the decision indicates customer complaint clerk. Although a reference is made in the body of 

the hearing representative’s June 2, 2017 decision to a customer service representative, this 

appears to be a mistake, as the rest of the decision and the June 2, 2016 proposed notice refer to 

the customer complaint clerk position.

CONCLUSION

The Board finds that OWCP properly determined that the selected position of a customer 

complaint clerk represented appellant’s wage-earning capacity as of July 24, 2016.

 

14 See supra note 10.
8

ORDER

IT IS HEREBY ORDERED THAT the June 2, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 16, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board