United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.W.

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Tampa, FL, Employer

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Docket No. 20-0111

Issued: September 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 17, 2019 appellant filed a timely appeal from an August 23, 2019 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that OWCP received additional evidence following the August 23, 2019 decision. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for 

the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence 

for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss 

compensation, effective September 15, 2019, based on her capacity to earn wages in the constructed 

position of appointment clerk.

FACTUAL HISTORY

On October 23, 2014 appellant, then a 30-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on October 17, 2014 she heard something pop in the middle part 

of her right leg when she stood up too fast after bending down to empty a foley bag while in the 

performance of duty. She was placed on sedentary modified work. OWCP accepted the claim for 

right knee unspecified site sprain, and subsequently expanded acceptance of the claim to include

deep vein thrombosis of right leg popliteal vein. It paid appellant wage-loss compensation on the 

supplemental rolls as of December 3, 2014 and on the periodic rolls as of January 8, 2017.3

In a February 22, 2017 work capacity evaluation (Form OWCP-5c), Dr. Babatola Durojaiye, 

a physician specializing in internal medicine, indicated that appellant was permanently disabled 

from any type of work.

On September 5, 2017 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), medical records, and list of questions, to Dr. Eniola Owi, a Board-certified occupational 

medicine physician, for a second opinion evaluation to determine the extent of appellant’s accepted 

employment injury and work capacity.

In an October 12, 2017 report, Dr. Owi, based on a review of the SOAF, history of injury,

and medical treatment and physical examination, concluded that appellant was capable of working 

with restrictions. She diagnosed resolved right knee unspecified site sprain and right leg deep vein 

thrombosis of the popliteal vein. On examination Dr. Owi found appellant had right leg swelling 

when compared with the left leg, nontender right knee and thigh, no effusion, tender distal foreleg 

half, 1+ pitting edema in the distal foreleg, hyperpigmentation, and tenderness above right medial 

malleolus, normal bilateral knee strength. A review of a March 29, 2017 popliteal vein ultrasound 

showed right common femoral vein to right popliteal vein nonocclusive thrombosis. Dr. Owi 

concluded that, due to swelling of appellant’s right leg, prolonged standing, and walking should be 

avoided. In an attached Form OWCP-5c, she found appellant capable of working with restrictions 

that included up to 6 hours of sitting, up to 1 hour of walking, standing, bending/stooping, and 

operating a motor vehicle at work, up to 40 pounds of pushing for 1 hour, up to 20 pounds of pulling 

for 1 hour, up to 20 pounds of lifting for 6 hours, no squatting, kneeling, or climbing, and 5-minute 

breaks every 30 minutes.

On March 12, 2018 OWCP, based on Dr. Owi’s report, referred appellant for vocational 

rehabilitation services.

 

3 Appellant was a probationary employee at the time of the accepted October 17, 2014 employment injury. The 

employing establishment terminated appellant’s employment, effective July 8, 2015, due to her failure to maintain a 

regular work schedule.
3

On October 29, 2018 appellant’s vocational rehabilitation counselor determined that she was 

capable of working as a customer service representative or customer (order) clerk or appointment 

clerk and that state labor market surveys on that date showed that these positions were reasonably 

available in appellant’s commuting area. The appointment clerk position, under the Department of 

Labor, Director of Occupational Titles (DOT) #237.367-010, was characterized as sedentary in 

nature and involved such duties as scheduling appointments with employer or other employees for 

customers or clients by telephone, mail, or in person, recording time and date of appointment in an 

appointment book, noting when appointments have been filled or cancelled, operating a 

switchboard, receiving payments for services performed and recording them in a ledger, and writing

or telephoning clients to remind them of appointments.4 The vocational rehabilitation counselor 

indicated that appellant met the specific vocational preparation (SVP) for the position based on 

reported work experiences and transferrable work skill. On November 5, 2018 she recommended 

online computer courses for further training in administrative assistant fundamentals and Microsoft 

Word 2016 at the University of Georgia.

Appellant took short-term online training in basic Windows, Microsoft Office, and Word to 

update her computer and typing skills from November 14, 2018 through January 4, 2019. Shortly 

thereafter, OWCP provided her with 90 days of job placement assistance from January 7 through 

April 7, 2019.

On March 14, 2019 OWCP referred appellant, together with a SOAF, medical record, and 

list of questions, to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for an assessment 

of her employment-related conditions, extent of disability, and appropriate treatment. In an April 5, 

2019 report, Dr. Dinenberg provided examination findings and reviewed appellant’s medical record. 

He opined that appellant’s right knee condition had resolved, but that her deep venous thrombosis 

had not resolved, and had resulted in chronic right lower extremity venous insufficiency with 

intermittent pain, swelling, and ulceration. Dr. Dinenberg found appellant was capable of working 

in a sedentary position requiring sitting for up to six hours in an eight-hour day. In an attached Form 

OWCP-5c, he listed permanent work restrictions of up to one hour of walking and standing and up 

to 20 pounds of squatting, kneeling, and climbing for one hour.

On April 15, 2019 OWCP closed vocational rehabilitation services following an 

unsuccessful placement effort. It noted the customer service representative, appointment clerk and 

other similar positions identified by the vocational rehabilitation counselor were performed in 

sufficient numbers within her commuting area with weekly wages of $511.20 to $580.00.

In progress notes covering the period March 15 through May 9, 2019, Dr. Loan Kim Lam, a 

podiatrist, noted appellant’s history of injury, and treatment provided. He diagnosed right leg pain, 

chronic venous insufficiency, right medial ankle venous stasis wound, right leg cellulitis, leg 

swelling, secondary lymphedema, and right leg venous stasis ulcer and inflammation.

On June 24, 2019 OWCP proposed to reduce appellant’s wage-loss compensation to $483.00 

every four weeks based on her capacity to earn wages in the constructed appointment clerk position 

 

4 Sedentary work, according to the DOT, involves occasionally exerting up to 10 pounds of force and sitting most of 

the time, but may involve walking or standing for brief periods of time. See C.M., Docket No. 18-0742 (issued 

March 12, 2020); G.E., Docket No. 18-0663 (issued December 21, 2018); P.J., Docket No. 15-0295 (issued May 20, 

2015)
4

at the rate of $511.20 per week. It found that the position was medically and vocationally suitable 

and represented her wage-earning capacity. OWCP provided its application of the Shadrick formula 

finding that the weekly pay rate on the date of injury, October 17, 2014, was $629.31 and that the 

current pay rate for job and step when injured was $675.49, effective May 6, 2019. It afforded 

appellant 30 days to respond to the proposed reduction in her compensation.5

By decision dated August 23, 2019, OWCP reduced appellant’s wage-loss compensation, 

effective September 15, 2019, based on her capacity to earn wages as an appointment clerk.

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.

6

 OWCP’s burden 

of proof includes the necessity of furnishing rationalized medical opinion evidence based on a 

proper factual and medical background.7

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 wage-earning 

capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if 

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 usual employment, age, 

qualifications for other employment, the availability of suitable employment and other factors and 

circumstances which may affect the wage-earning capacity in his or her disabled condition.8 Wageearning capacity is a measure of the employee’s ability to earn wages 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 The fact that an employee has been unsuccessful in obtaining work in the selected position 

does not establish that the work is not reasonably available in his or her commuting area.11

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.12 

 

5 Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.

6 C.F., Docket No. 19-0595 (issued September 9, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005).

7 S.N., Docket No. 17-1589 (issued January 3, 2018); Del K. Rykert, 40 ECAB 284 (1988).

8 5 U.S.C. § 8115(a); K.S., Docket No. 19-0678 (issued October 25, 2019); E.W., Docket No. 14-0584 (issued July 29, 

2014); 5 U.S.C. § 8115(a).

9 See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).

10 C.M., Docket No. 18-1326 (issued January 4, 2019).

11 Id.; see also Leo A. Chartier, 32 ECAB 652 (1981).

12 Z.W., Docket No. 18-1000 (issued June 24, 2019); see William H. Woods, 51 ECAB 619 (2000).
5

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

reasonably current medical evaluation.13

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 

DOT or otherwise available in the open labor market, that fits that employee’s capabilities with 

regard to 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.14 Lastly, OWCP applies the principles set forth in Albert C. Shadrick15 as 

codified in section 10.403 of OWCP’s regulations,16 to determine the percentage of the employee’s 

LWEC.

ANALYSIS

The Board finds that OWCP met its burden of proof to reduce appellant’s wage-loss 

compensation benefits, effective September 15, 2019, based on her capacity to earn wages in the 

constructed position of appointment clerk.

Dr. Durojaiye, in a February 22, 2017 Form OWCP-5c, opined that appellant was 

permanently disabled. However, he offered no medical rationale supporting his opinion. Where no 

such rationale is present, the medical opinion is of diminished probative value.17

In a report dated October 17, 2017, Dr. Owi, an OWCP second opinion physician, found that 

appellant was capable of working a sedentary position with restrictions including no more than six 

hours of sitting, no more than one hour of walking, standing, bending/stooping, and operating a 

motor vehicle at work, pushing no more than 40 pounds for up to 1 hour, pulling no more than 20 

pounds for up to 1 hour, lifting nor more than 20 pounds for up to 6 hours, no squatting, kneeling, 

or climbing, and 5-minute rest breaks every 30 minutes. The Board, thus, finds that OWCP properly 

referred appellant for vocational rehabilitation as the medical evidence established that she was no 

longer totally disabled due to residuals of her employment injury based on the report of Dr. Owi.18

Following appellant’s referral for vocational rehabilitation services, on March 14, 2019 

OWCP referred appellant to Dr. Dinenberg for an assessment of her employment-related conditions

and extent of disability. In an April 5, 2019 report, Dr. Dinenberg opined that appellant’s right 

knee condition had resolved, but that her deep venous thrombosis had not resolved, and had resulted 

 

13 See Z.W., id. 

14 Supra note 9 at Chapter 2.816.6(a) (June 2013).

15 Supra note 5.

16 20 C.F.R. § 10.403.

17 See J.M., Docket No. 19-1169 (February 7, 2020). 

18 C.M., Docket No. 18-0742 (issued March 12, 2020).
6

in chronic right lower extremity venous insufficiency with intermittent pain, swelling, and 

ulceration. He determined that appellant was capable of working in a sedentary position requiring 

sitting for up to six hours in an eight-hour day. Appellant’s restrictions included up to one hour of 

walking and standing and up to 20 pounds of squatting, kneeling, and climbing for one hour. 

The Board finds that the selected position of appointment clerk is within the physical work 

restrictions as detailed by Dr. Dinenberg. As noted, the appointment clerk is defined as sedentary 

in nature, meaning that appellant would primarily sit and could walk or stand for brief periods of 

time. Dr. Dinenberg determined that appellant could perform sedentary work for up to eight hours 

a day, while sitting six hours a day, walking and standing for one hour each, a day. The Board finds 

that the opinion of Dr. Dinenberg was reasoned and based on a complete and accurate history and, 

thus, constitutes the weight of the evidence and establishes that appellant had the physical ability to 

earn wages as an appointment clerk.19

In progress notes covering the period March 15 through May 9, 2019, Dr. Lam, a podiatrist, 

noted treating appellant for right leg pain, chronic venous insufficiency, right medial ankle venous 

stasis wound, right leg cellulitis, leg swelling, secondary lymphedema, and right leg venous stasis 

ulcer and inflammation. He did not, however, address the relevant issue of whether she could 

perform the constructed position of appointment clerk and, thus, his opinion is of diminished 

probative value.20

In assessing the employee’s ability to perform the selected position, the vocational 

rehabilitation counselor considered not only appellant’s physical limitations, but also considered her 

work experience, age, mental capacity, and educational background.21 In her October 29, 2018 

report, she described appellant’s transferable skills and completed labor market surveys for the 

position of appointment clerk. The vocational rehabilitation counselor noted that the appointment 

clerk position was sedentary in nature and available for full-time and/or part-time work in 

appellant’s commuting area. As the rehabilitation counselor is an expert in the field of vocational 

rehabilitation, OWCP may rely on his or her opinion in determining whether a job is vocationally 

suitable and reasonably available.22

The Board finds that OWCP considered the proper factors, including the availability of 

suitable employment, appellant’s physical limitations, and employment qualifications in 

determining that she had the capacity to perform the position of appointment clerk.23 OWCP also 

properly applied the Shadrick formula, as codified in section 10.403 of its regulations,24 in 

determining her LWEC.

 

19 C.M., id.; C.M., supra note 10

20 See C.M., id; M.K., Docket No. 18-0907 (issued February 7, 2019).

21 C.M., supra note 18.

22 C.H., Docket No. 19-0136 (issued May 23, 2019).

23 T.B., Docket No. 17-1777 (issued January 16, 2019).

24 5 ECAB 376 (1953); supra note 9 at Chapter 2.816.6(b) (June 2013).
7

Appellant may request modification of the LWEC determination, supported by new evidence 

or argument, at any time before OWCP.

CONCLUSION

The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss 

compensation, effective September 15, 2019, based on her capacity to earn wages in the constructed 

position of appointment clerk.

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 21, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board