United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-1611 

Issued: May 12, 2017 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 4, 2016 appellant, through counsel, filed a timely appeal from a July 27, 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 the 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 met its burden of proof to reduce appellant’s compensation 

benefits based on his capacity to earn wages in the selected position of dispatcher, radio, 

Department of Labor’s Dictionary of Occupational Titles (DOT) No. 379.362-010. 

On appeal counsel asserts that OWCP procedures prohibit using a state or government 

position as a basis for a constructed wage-earning capacity decision. 

FACTUAL HISTORY 

On July 17, 2014 appellant, then a 44-year-old supervisory federal air marshal, filed an 

occupational disease claim (Form CA-2) alleging that, due to a prior accepted knee injury, he 

had continued knee pain caused by employment duties.3

 On October 15, 2014 OWCP accepted 

traumatic arthropathy of the left lower leg, old disruption of the left anterior cruciate ligament, 

and derangement of the left medial meniscus. Dr. Marko F. Krpan, an attending Board-certified 

osteopath specializing in orthopedic surgery, recommended a total left knee arthroplasty, which 

he performed on December 29, 2014.4

 Appellant accepted modified duty on March 2, 2015. 

The employing establishment determined that appellant was unable to perform the 

essential duties of the federal air marshal jobs, and/or that he no longer met its medical standards. 

Appellant stopped work on May 11, 2015 and filed a recurrence claim (Form CA-2a). He began 

receiving FECA wage-loss compensation, effective that day. A May 19, 2015 functional 

capacity evaluation, signed by Dr. Krpan on May 20, 2015, demonstrated that appellant could 

function at the medium physical demand level. 

In July 2015 OWCP referred appellant to a vocational rehabilitation specialist, for 

vocational rehabilitation services. On July 30, 2015 Dr. Krpan advised that appellant could stand 

or walk a maximum of two to three hours in an eight-hour workday. Appellant had vocational 

testing and the rehabilitation specialist completed a transferable skills analysis. In an August 18, 

2015 rehabilitation report, the specialist indicated that a labor market survey had been completed 

on August 11, 2015 and the positions of surveillance systems monitor, check cashier, radio 

dispatcher, maintenance service dispatcher, and security guard were identified. She documented 

several job opportunities and completed job classification forms for each position on 

September 3, 2015. These included a job description with physical demands for each position, 

indicating that each had a sedentary strength level. The vocational rehabilitation specialist 

indicated that each position was available in the local commuting area. She submitted a 

vocational placement plan. 

 3

 Appellant noted that he had initially filed a recurrence claim (Form CA-2a) for a September 6, 2006 traumatic 

injury, accepted for traumatic bilateral sprain of the lateral collateral ligament. OWCP adjudicated the 2006 claim 

under File No. xxxxxx107 and the instant claim under File No. xxxxxx771. 

4

 The procedure was authorized by OWCP on March 25, 2015. The record does not indicate that appellant 

received wage-loss compensation before, during, or immediately after this procedure. 
3

On November 13, 2015 OWCP informed appellant that it had approved the employment 

plan prepared by the vocational rehabilitation specialist. 

In January 2016 appellant relocated from the Chicago, Illinois, area to Cartersville, 

Georgia. Rehabilitation services were closed on February 22, 2016. In her closure 

memorandum, the vocational rehabilitation specialist indicated that the first targeted position was 

surveillance system monitor, and the second targeted position was radio dispatcher, noting that 

both positions were sedentary, both were vocationally and medically appropriate and, based on 

the September 3, 2015 labor market surveys, both existed in sufficient numbers within the local 

(Chicago) commuting area. 

On April 1, 2016 OWCP obtained employment and wage estimates from May 2014 in the 

Chicago metropolitan area for the positions of dispatcher, radio DOT No. 379.362-010, with a 

median hourly wage of $23.63; system surveillance monitor, DOT No. 379.367-010, with a 

median hourly wage of $9.18; and dispatcher, maintenance service, DOT No. 239.367-014, with 

a median hourly wage of $20.65. 

In an amended notice of proposed reduction dated May 27, 2016,5

 OWCP proposed to 

reduce appellant’s compensation, based on his capacity to earn wages as a radio dispatcher, DOT 

No. 379.362-010. It noted that Dr. Krpan confirmed on July 8, 2015 that appellant had reached 

maximum medical improvement with permanent restrictions at a light demand level, based on a 

May 19, 2015 functional capacity evaluation, and that the physician had provided permanent 

restrictions of sitting for eight hours, walking and standing for one hour, twisting for 15 minutes 

with no bending, stooping, squatting, kneeling, or climbing. OWCP noted that appellant had 

been referred for vocational rehabilitation services, and the radio dispatcher position was 

selected as being the most appropriate, based upon the rehabilitation counselor’s review of 

appellant’s work history and transferrable skills analysis. It described the physical requirements 

of the radio dispatcher position as sedentary and within the restrictions provided by Dr. Krpan.6 

OWCP indicated that, based on recent wage and position information, the radio dispatcher 

position was reasonably available at an entry pay level of $945.20 per week. 

On July 18, 2016 counsel maintained that the constructed position was improper. He 

noted that OWCP procedures prohibit use of this type of job in which the claimant was not 

 5

 An original notice was prepared on April 1, 2016. 

6

 The complete title for the position is (government ser.) alternate titles: dispatcher; police radio dispatcher; 

station operator the Department of Labor’s Dictionary of Occupational Titles job description for dispatcher, radio, 

DOT No. 379.362-010, is as follows: Receives complaints from public concerning crimes and police emergencies, 

broadcasts orders to police radio patrol units in vicinity to investigate complaint, and relays instructions or questions 

from remote units. Records calls broadcast and complaints received. In some municipalities coordinates all police, 

fire, ambulance, and other emergency requests, relaying instructions to radio unit concerned. May make operating 

adjustments to transmitting equipment where station is not automatic and be required to hold federal license. May 

transmit and receive messages between divisions of own agency and other law enforcement agencies. May monitor 

silent alarm system to detect illegal entry into business establishments. May contact police officers (government 

ser.) I-375.263-014 and guards, school-crossing (government ser.) 371.567-010 to verify assignment locations. The 

strength level is sedentary. 
4

actually employed and also asserted that the pay rate for the constructed position was not 

sufficiently explained.7

By decision dated July 27, 2016, OWCP reduced appellant’s wage-loss compensation 

based on his capacity to earn wages as a radio dispatcher, effective July 24, 2016. By utilizing 

the Shadrick formula,8

 it found that appellant had a 60 percent loss of wage-earning capacity.9 

LEGAL PRECEDENT 

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

modification of compensation benefits.10 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.11 

Section 8115 of FECA and section 10.520 of OWCP regulations provide that wageearning 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 the employee has no actual earnings, 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 or circumstances which 

may affect his or her wage-earning capacity in the disabled condition.12 

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.13 Additionally, the Board has held that a wage-earning capacity determination must 

be based on a reasonably current medical evaluation.14 

 7

 On July 27, 2016 OWCP granted appellant a schedule award for 59 percent permanent impairment of the left 

lower extremity, for 169.92 weeks, to run from July 24, 2016 to October 26, 2019. Appellant elected federal 

retirement benefits, effective July 24, 2016, and did not file an appeal with the Board from the schedule award 

decision. 

8 Albert C. Shadrick, 5 ECAB 376 (1953). See discussion infra. 

9

 The Board notes that the July 27, 2016 decision includes typographic errors indicating that the weekly pay rate 

for the dispatcher, radio position is $4,296.48. This, however, is the four-week compensation rate before 

deductions. The correct weekly pay rate of $945.20 was used in the Shadrick calculation. 

10 James M. Frasher, 53 ECAB 794 (2002). 

11 20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004). 

12 5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id. 

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

14 John D. Jackson, supra note 11. 
5

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 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 that 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 open labor 

market should be made through contact with the state employment service, local Chamber of 

Commerce, employer contacts, and actual job postings.15 Finally, application of the principles 

set forth in Albert C. Shadrick,

16 as codified in section 10.403 of OWCP regulations,17 will result 

in the percentage of the employee’s loss of wage-earning capacity.18 

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. 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.19 

OWCP procedures also provide that 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 claimant lives.20 The availability of the employment is usually evaluated with respect 

to the area where the claimant resides at the time the determination is made, rather than the area 

of residence at the time of injury.21 The procedures also indicate that, if a labor market survey is 

more than one year old, the case should be returned to the rehabilitation specialist so that a 

current survey can be obtained.22 The procedures further provide that a Federal or other civil 

service position in which the claimant is not actually employed may not be considered 

reasonable and may not be used to make a wage-earning capacity decision.23

 15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.6 (June 2013). 

16 Supra note 9. 

17 20 C.F.R. § 10.403. 

18 James M. Frasher, supra note 10. 

19 John D. Jackson, supra note 11. 

20 Federal (FECA) Procedure Manual, supra note 15 at Chapter 2.816.6.a.; see Joyce W. Thurman, Docket No. 

05-1537 (issued December 7, 2005). 

21 Id. at Chapter 2.816.7.b. 

22 Id. at Chapter 2.816.6.a. 

23 Id. at Chapter 2.816.7.a. 
6

ANALYSIS 

The Board finds the July 27, 2016 wage-earning capacity decision must be reversed. 

While the medical evidence establishes that appellant can perform the duties of the selected 

position, the record indicates that in January 2016, the Department of Labor’s Dictionary of 

Occupational Titles description of the selected position of radio dispatcher describes a position 

that is a government civil service position. An alternate title is police radio dispatcher, and the 

Department of Labor’s Dictionary of Occupational Titles description includes job duties of 

receiving complaints from the public concerning crimes and police emergencies and relaying 

instructions to police, fire, ambulance, etc.24 OWCP procedures are clear that federal or other 

civil service positions in which a claimant had not actually been employed could not be used for 

a loss of wage-earning capacity determination.25 There is no evidence of record as to whether 

the radio dispatcher position was available in the general labor market. It was, therefore, 

inappropriate for OWCP to base appellant’s wage-earning capacity on the constructed position of 

radio dispatcher.26

The Boards finds that for these reasons the record does not establish that the selected 

position of radio dispatcher, was reasonably available or otherwise an appropriate position. 

Thus, OWCP failed to meet its burden of proof to justify reducing his wage-loss compensation. 

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s 

compensation benefits based on his capacity to earn wages in the selected position of radio 

dispatcher, DOT No. 379.362-010. 

 24 Supra note 7. 

25 Supra note 24. 

26 See J.E., Docket No. 08-1582 (issued March 3, 2009). 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: May 12, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board