United States Department of Labor

Employees’ Compensation Appeals Board

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W.S., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, METROPOLITAN 

CORRECTIONAL CENTER, San Diego, CA, 

Employer

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Docket No. 21-1118

Issued: April 28, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 14, 2021 appellant filed a timely appeal from an April 8, 2021 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 wage-loss compensation, 

effective April 8, 2021, based upon his wage-earning capacity in the constructed position of 

customer service representative.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 10, 2014 appellant, then a 46-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on September 9, 2014 he sustained a right knee injury 

when he lost his footing as he was descending stairs and fell on his right knee while in the 

performance of duty. He stopped work on September 10, 2014. OWCP accepted the claim for 

right knee meniscal tear. It authorized right knee arthroscopic surgery, which was performed on 

February 10, 2015. OWCP paid appellant wage-loss compensation on the supplemental rolls 

commencing February 10, 2015, and on the periodic rolls commencing October 18, 2015. 

In a progress report dated August 28, 2015, Dr. Dayang Kim Mariena Jaya, Board-certified 

in internal medicine and occupational medicine, diagnosed right knee meniscal tear and right knee 

osteoarthritis. She provided permanent work restrictions of no climbing more than five stairs at a 

time, no use of scaffolds or work at height, no climbing ladders, no walking or standing more than 

three hours per day, and no knee bending, squatting, or kneeling. 

On September 23, 2015 OWCP referred appellant for vocational rehabilitation to find a 

position within the restrictions provided by Dr. Jaya. Appellant began a paralegal training program 

on January 12, 2016 as part of his vocational rehabilitation program. 

By decision dated September 22, 2016, OWCP expanded the acceptance of the claim to 

include right knee traumatic arthropathy and permanent aggravation of right knee osteoarthritis. 

On December 13, 2016 OWCP noted that appellant would complete his training program 

that day and that he would be undergoing surgery on January 17, 2017. It indicated that the 

rehabilitation counselor was directed to close the case and appellant would be rereferred for 

vocational rehabilitation services once it was determined that he was capable of sedentary work. 

Appellant underwent a right total knee replacement on January 27, 2017. 

In an August 4, 2017 work capacity evaluation (Form OWCP-5c), Dr. Jaya noted that 

appellant had undergone a total right knee replacement. She related that he had limitations 

regarding lifting and squatting, but that he could perform medium level work. 

An August 25, 2017 OWCP vocational rehabilitation report related that appellant was 

being referred for plan development. It noted that he had completed an extensive training program, 

but that he did not receive placement services because he underwent surgery. OWCP also noted 

that appellant had been released by his treating physician on August 4, 2017 for sedentary, light, 

or medium level work. 

In a September 20, 2017 vocational rehabilitation plan, the vocational rehabilitation 

counselor described completed job classification forms (Form OWCP-66) for the positions of 

paralegal, Department of Labor’s Dictionary of Occupational Titles (DOT) No. 239.362-026, and 

customer service representative, DOT No. 239.362-014. She indicated that the paralegal position 

was classified as light work, the customer service representative position was classified as 

sedentary, and both of these positions were available in appellant’s commuting area. 
3

On December 21, 2017 OWCP approved a 30-day extension of placement services with a 

new end date of January 23, 2018. It on January 24, 2018 approved a second 30-day extension of 

placement services with a new end date of February 24, 2018. On February 22, 2018 OWCP 

approved a third and final 30-day extension of placement services with an end date of 

March 24, 2018. 

By letter dated June 12, 2018, appellant was offered a limited light-duty temporary position 

at the employing establishment, at the medium strength level. He rejected the job offer on 

June 24, 2018. 

In a June 18, 2018 form report, Dr. Jaya detailed examination findings and provided 

permanent work restrictions no more than 50 pounds of occasional exertion of force and up to 25

pounds of frequent exertion of force. 

On July 17, 2018 OWCP requested that the vocational rehabilitation counselor close the 

case as rehabilitation services were unsuccessful. 

On July 14, 2020 OWCP referred appellant for a second opinion evaluation with

Dr. Laura N. Sciaroni, a Board-certified orthopedic surgeon, to determine the nature of his

condition, extent of disability, and appropriate treatment. 

In a report dated September 3, 2020, Dr. Sciaroni noted appellant’s history of injury and 

reviewed his prior medical treatment and the statement of accepted facts. She examined him and 

provided physical examination findings. Dr. Sciaroni noted that appellant’s work-related 

conditions had not resolved, finding that he walked normally, but that he had decreased right knee 

extension. She opined that his underlying right knee osteoarthritis had been permanently 

aggravated by fall on the stairs and need for knee replacement surgery. Regarding return to work,

Dr. Sciaroni advised that appellant was unable to return to his previous job as a correctional officer,

however, she opined that he could work at a sedentary or light-duty job. She noted that he was not 

capable of running, jumping, or subduing an inmate. Dr. Sciaroni completed a Form OWCP-5c 

and provided permanent restrictions limiting appellant to sedentary or light work. 

On November 30, 2020 OWCP again referred appellant for vocational rehabilitation for 

plan development within the restrictions noted by Dr. Sciaroni in her September 3, 2020 report. It 

requested an updated labor market survey for the positions of paralegal and customer service 

representative, previously identified as within his work restrictions. 

In December 2, 2020 report, the vocational rehabilitation counselor updated Form 

OWCP-66 for the positions of paralegal, DOT No. 239.362-026, and customer service 

representative, DOT No. 239.362-014. The vocational rehabilitation counselor advised that the 

customer service representative position was reasonably available within appellant’s commuting 

area and the wage range for the position was from $604.00 to $954.00 per week, based on 

December 2, 2020 state employment data. 

On January 28, 2021 OWCP notified appellant that it proposed to reduce his wage-loss 

compensation based on his capacity to earn wages in the constructed position of customer service 

representative, DOT No. 239.362-014, at the weekly pay rate of $604.00. It noted the physical 

requirement of the position, which was sedentary, did not exceed his medical restrictions as found 
4

by Dr. Sciaroni. OWCP also found that the position was vocationally suitable, based on the 

rehabilitation counselor’s report. Based on the weekly pay rate of $604.00, it calculated 42 percent 

wage-earning capacity using the Shadrick formula and specified a new periodic compensation rate 

of $2,125.00. OWCP afforded appellant 30 days to submit evidence and argument regarding the 

proposed reduction of his compensation and attached the job classification for the constructed 

position of customer service representative position completed by the vocational rehabilitation 

counselor on December 2, 2020 and Dr. Sciaroni’s September 3, 2020 work restrictions. 

On March 8, 2021 appellant disagreed with the proposal to reduce his wages based on a 

nongovernment position. He stated that he would not give up his Federal Government work status 

and benefits for a job in the private sector. 

By decision dated April 8, 2021, OWCP reduced appellant’s wage-loss compensation, 

effective that day, consistent with its finding that the constructed position of customer service 

representative, DOT No. 239.362-014 with weekly earnings of $604.00, represented his wageearning capacity. 

LEGAL PRECEDENT

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

modification of the compensation benefits.2 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 wage-earning 

capacity (LWEC).

3

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.4 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.

5

 

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor 

market under normal employment conditions. 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. The fact that an employee has been unsuccessful in obtaining work in 

2

See S.F., Docket No, 20-0869 (issued October 14, 2021); S.C., Docket No. 19-1381 (issued November 24, 

2020); C.H., Docket No. 19-0136 (issued May 23, 2019).

3 B.H., Docket No 20-0729 (issued March 10, 2021); J.F., Docket No. 19-0864 (issued October 25, 2019).

4

5 U.S.C. § 8115(a).

5 B.H., supra note 3; C.M., Docket No. 18-1326 (issued January 4, 2019).
5

the selected position does not establish that the work is not reasonably available in his or her 

commuting area.6

OWCP must initially determine an employee’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 employee’s medical 

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 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 DOT 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 open 

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

of Commerce, employing establishment contacts, and actual job postings.9 Lastly, OWCP applies 

the principles set forth in Albert C. Shadrick,

10 as codified in section 10.403 of OWCP’s 

regulations,11 to determine the percentage of the employee’s LWEC.

ANALYSIS

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

compensation, effective April 8, 2021, based upon his wage-earning capacity in the constructed 

position of customer service representative.

OWCP determined that appellant’s wage-earning capacity was represented by the 

constructed position of customer service representative, as it was within the medical restrictions 

provided by Dr. Jaya, a treating physician, as well as OWCP’s second opinion physician,

Dr. Sciaroni. Following his total knee replacement on January 27, 2017 Dr. Jaya opined on 

June 18, 2018 that he was partially disabled as a result of the employment injury and unable to 

return to his correctional officer position. She provided permanent work restrictions of no exertion 

of force over 50 pounds occasionally, or 25 pounds occasionally. Dr. Sciaroni, in a September 3, 

2020 report, also found appellant disabled from performing his duties as a correctional officer, but

was capable of performing sedentary and light work duties. 

6

Id.

7

S.F., supra note 2; J.H., Docket No. 18-1319 (issued June 26, 2019).

8

Id.

9 C.M., supra note 5; Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, 

Chapter 2.813.7(a)(3) (February 2011).

10 5 ECAB 376 (1953).

11 20 C.F.R. § 10.403.
6

OWCP, therefore, reopened vocational rehabilitation services on November 30, 2020 as 

the medical opinion evidence established that appellant was no longer disabled from work due to 

residuals of his accepted employment injury.12

On November 30, 2020 OWCP requested that the vocational rehabilitation counselor 

provide an updated labor market survey for the positions of paralegal and customer service 

representative, previously identified as within appellant’s work restrictions identified by

Dr. Sciaroni and Dr. Jaya. 

The Board finds that OWCP properly determined that appellant had the physical capacity 

to perform the duties of a customer service representative. The vocational rehabilitation counselor 

noted that the position of customer service representative was within the medical restrictions as 

provided by Drs. Jaya and Sciaroni. The Board, therefore, finds that the weight of the medical 

evidence establishes that appellant had the physical capacity to perform the duties of the selected 

position.13

In assessing the employee’s ability to perform the selected position, OWCP must consider 

not only physical limitations, but also consider work experience, age, mental capac ity, and 

educational background.14 In December 2, 2020 report, the rehabilitation counselor indicated that 

the customer service representative position was vocationally suitable for appellant and available 

in appellant’s commuting area. The report noted that the source of wage data was information 

from the state dated December 2, 2020, which revealed a wage of $604.00 per week for the 

customer service representative position. As the rehabilitation counselor is an expert in the field 

of vocational rehabilitation, OWCP may rely on their opinion in determining whether a job is 

vocationally suitable and reasonably available.15

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 he had the capacity to perform the position of customer service representative.16 

It properly applied the Shadrick formula, as codified in section 10.403 of its regulations,17 in 

determining appellant’s LWEC and reducing his compensation. The Board thus finds that OWCP 

properly determined that the position of customer service representative reflected appellant’s 

wage-earning capacity.18

12 S.F., supra note 2; C.M., Docket No. 19-0360 (issued February 25, 2020).

13 Id.

14 S.F., supra note 2; C.M., supranote 5.

15 C.H., supra note 2; supra note 9 at Chapter 2.816.6(b) (June 2013).

16 S.F., supra note 2; T.B., Docket No. 17-1777 (issued January 16, 2019).

17 20 C.F.R. § 10.403.

18 S.F., supra note 2; C.M., supranote 5.
7

Appellant objected to the proposed reduction of his wage-loss compensation and argued 

that he did not want to leave the Federal Government sector for a position in the private sector. 

However, as previously noted, a determination that he has a wage-earning capacity based upon a 

constructed position does not actually involve job placement in the position, but rather is a 

selection of a position listed in the DOT or otherwise available in the open market, which reflects 

his wage-earning capacity.19

Appellant may request modification of the wage-earning capacity 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 April 8, 2021, based upon his capacity in the constructed position of 

customer service representative.

ORDER

IT IS HEREBY ORDERED THAT April 8, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 28, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

19 Supra note 11.