United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

PROVIDENCE VA MEDICAL CENTER, 

Providence, RI, Employer

__________________________________________

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Docket No. 22-0258

Issued: February 10, 2023

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 November 15, 2021 appellant filed a timely appeal from an October 19, 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.2

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 19, 2021 decision, OWCP received additional evidence. 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 properly reduced appellant’s wage-loss compensation 

effective October 19, 2021 based on her capacity to earn wages in the constructed position of an 

administrative assistant.

FACTUAL HISTORY

On December 16, 2015 appellant, then a 60-year-old advance medical support assistant, 

filed a traumatic injury claim (Form CA-1) alleging that on December 14, 2015 she experienced 

heart palpitations, trauma, and a loss of focus when she was threatened by a patient while in the 

performance of duty. She stopped work on December 15, 2015. OWCP accepted the claim for 

acute post-traumatic stress disorder (PTSD). It paid appellant wage-loss compensation for total 

disability on the supplemental rolls effective February 1, 2016 and on the periodic rolls effective 

August 21, 2016. 

In a report dated February 21, 2019, Dr. Louis Turchetta, a psychologist, indicated that he 

had treated appellant since February 2016 for trauma related to a patient threatening her at work 

on December 14, 2015. He diagnosed PTSD due to the December 14, 2015 employment incident 

and advised that she continued to have recurrent thoughts and memories of the event. 

Dr. Turchetta advised that appellant “would have significant difficulty reentering the work force 

in the same job in which [appellant] has to interact with potentially aggressive psychiatric patients. 

It is my recommendation that she be reassigned to a position which does not require dealing 

directly with patients.” He found that she might be able to participate in vocational rehabilitation

if there was no interaction with patients. Dr. Turchetta related, “It is my recommendation that 

whatever job is suggested be reviewed by this office for appropriateness.”

On March 12, 2019 the employing establishment requested that OWCP provide appellant 

with vocational rehabilitation services. It indicated that its positions required working with the 

public.

In February 26, 2020 and February 25, 2021 reports, Dr. Turchetta discussed his treatment 

of appellant for PTSD due to the accepted employment injury. He found that she could participate 

in vocational rehabilitation, but that she could not work in a position dealing with patients directly. 

Dr. Turchetta again advised that his office should review any job offer to determine whether it was 

appropriate. 

A physician assistant noted that appellant was under care of Dr. James D. Kang, a Boardcertified orthopedic surgeon, for lumbar stenosis with neurogenic claudication. The physician 

assistant provided work restrictions. 

On December 7, 2020 OWCP referred appellant to a vocational rehabilitation counselor 

for vocational rehabilitation. 

In an initial vocational rehabilitation report dated January 15, 2021, the vocational 

rehabilitation counselor noted that appellant had graduated from college and had worked in data 

processing handling admission and billing issues, and had also worked as a freelance sports 
3

reporter, administrative manager, compensation and claim clerk, and administrative assistant. He 

advised that a position in human resources or as an administrative manager was within her 

restrictions.

In a March 2, 2021 rehabilitation plan and award (Form OWCP-15), OWCP approved 90 

days of job placement services for the positions of administrative assistant, office manager, and 

human resources adviser. 

On April 20, 2021 OWCP received an unsigned report from Dr. Kang, who advised that 

he was treating appellant for lumbar spinal stenosis with neurogenic claudication. Dr. Kang found 

that she could not lift over 5 to 10 pounds or sit or stand more than 10 minutes at a time.

On April 23, 2021 Dr. Turchetta diagnosed PTSD due to the December 14, 2015 

employment injury. He discussed appellant’s continued symptoms of psychological distress and 

a rapid heartbeat when reminded of the event. Dr. Turchetta advised that she could not perform a 

position interacting with “potentially aggressive psychiatric patients” and recommended that she 

“be reassigned to a position which does not require dealing directly with patients.”

In a rehabilitation action report (Form OWCP-44) dated July 16, 2021, the vocational 

rehabilitation counselor advised that appellant had accepted a part-time position as an 

administrative assistant at a hospital. 

In a report dated July 28, 2021, Dr. Turchetta asserted that he had treated appellant since 

she was assaulted by a patient at the employing establishment and “developed a post-traumatic 

reaction.” He related, “[Appellant’s] recent job offer at [a hospital] resulted in a flashback to her 

original trauma.” Dr. Turchetta opined that appellant could work, but in “a setting that does not 

put [appellant] in constant contact with the public and not in a hospital setting.” He again asked 

that he review any offer for appropriateness.

In a closure report dated August 6, 2021, the vocational rehabilitation counselor noted that 

appellant had experience working as an administrative manager, office manager, and in human 

resources, and found that these positions were within the restrictions set forth by Dr. Turchetta. 

The vocational rehabilitation counselor completed a job classification (Form CA-66) on 

August 16, 2021 for the position of administrative assistant. The duties included coordinating 

office services such as personnel, and could include interviewing job applicants and orienting new 

employees. The vocational rehabilitation counselor advised that appellant met the specific 

vocational preparation for the position through her college degree in communications/public 

relations and office administration experience. He specially determined that the job of 

administrative assistant was performed in sufficient geographical numbers in her area according 

to state employment data.

On August 16, 2021 OWCP’s vocational rehabilitation specialist recommended 

preparation of a loss of wage-earning capacity (LWEC) determination. The rehabilitation 

specialist noted that the constructed position of administrative assistant was sedentary and found 

that appellant could earn $562.80 per week in that position. 
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By a September 16, 2021 notice, OWCP advised appellant of its proposed reduction of her

wage-loss compensation as the evidence established that she could earn wages in the selected 

position of administrative assistant, Department of Labor, Dictionary of Occupational Titles 

(DOT) #169.167-010. It afforded her 30 days to submit evidence or argument regarding the 

proposed reduction of her compensation. No response was received.

By decision dated October 19, 2021, OWCP reduced appellant’s wage-loss compensation 

effective that date as she had the capacity to earn wages of $562.80 per week as an administrative 

assistant. It found that the April 23, 2021 report from Dr. Turchetta represented the weight of the 

evidence and established that she could perform the duties of the selected position. OWCP applied 

the formula set forth in Albert C. Shadrick3as codified in section 10.403 of OWCP’s regulations, 

to determine appellant’s LWEC.

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.4 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 based on his or her LWEC.5 An employee’s actual earnings generally 

best reflect his or her wage-earning capacity.6 Absent evidence that actual earnings do not fairly 

and reasonably represent the employee’s wage-earning capacity, such earnings must be accepted 

as representative of the individual’s wage-earning capacity.7 But if actual earnings do not fairly 

and reasonably represent the employee’s wage-earning capacity or the employee has no actual 

earnings, then 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 and circumstances that 

may affect wage-earning capacity in his or her disabled condition.8

OWCP must initially determine the employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her vocational wage-earning capacity.9 

The medical evidence OWCP relies upon must provide a detailed description of the employee’s 

3 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.

4 See L.M., Docket No. 20-1038 (issued March 10, 2021); E.D., Docket No. 17-1064 (issued March 22, 2018).

5 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

6 See T.D., Docket No. 20-1088 (issued June 14, 2021); Hayden C. Ross, 55 ECAB 455, 460 (2004).

7

Id.

8 5 U.S.C. § 8115(a); S.F., Docket No. 20-0869 (issued October 14, 2021); Mary Jo Colvert, 45 ECAB 575 (1994); 

Keith Hanselman, 42 ECAB 680 (1991).

9 See M.H., Docket No. 21-1055 (issued March 30, 2022); M.A., 59 ECAB 624, 631 (2008).
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condition and the evaluation must be reasonably current.10 Where suitability is to be determined 

based on a position not actually held, the selected position must accommodate the employee’s 

limitations from both injury-related and preexisting conditions, but not limitations attributable to 

post-injury or subsequently acquired conditions.11

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 Department of Labor, DOT or otherwise available in the open 

market, that fits the employee’s capabilities with regard to his physical limitations, education, age, 

and prior experience.12 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.13 Lastly, OWCP applies the principles set forth in Shadrick14 as codified 

in section 10.403 of OWCP’s regulations,15 to determine the percentage of the employee’s LWEC.

ANALYSIS

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

effective October 19, 2021 based on her capacity to earn wages in the constructed position of an 

administrative assistant.

The issue of whether appellant has the physical capacity to perform a selected position is 

primarily a medical question that must be resolved by the medical evidence of record.16 

In a February 26, 2020 report, Dr. Turchetta diagnosed PTSD due to appellant’s 

December 14, 2015 employment injury. He found that she could not work in a position dealing 

directly with patients. In an April 23, 2021 report, Dr. Turchetta advised that appellant 

experienced psychological distress and a rapid heartbeat when reminded of the employment injury. 

He recommended that she not work in a position dealing with patients. On July 28, 2021

Dr. Turchetta related that a recent job offer extended to appellant by a hospital had caused her to 

flashback to her original trauma. He found that she was unable to work in a position that required 

“constant contact” with the public or in a hospital setting. 

OWCP procedures provide that, in assessing an employee’s ability to perform a constructed 

position, if the evidence is unclear, equivocal, or old enough to be considered stale, the claims 

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

Constructed Position, Chapter 2.816.4d (June 2013); see also J.H., Docket No. 18-1319 (issued June 26, 2019).

11 Id. at Chapter 2.816.4c; see also N.J., 59 ECAB 171 (2007).

12 Id. at Chapter 2.813.7b (February 2011).

13 Id. at Chapter 2.816.6.a (June 2013); see also C.M., Docket No. 18-1326 (issued January 4, 2019).

14 Supra note 3.

15 20 C.F.R. § 10.403.

16 G.F., Docket No. 20-1031 (issued December 31, 2020); G.E., Docket No. 18-0663 (issued December 20, 2018); 

Dennis D. Owen, 44 ECAB 475 (1993).
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examiner should seek clarification from a physician regarding the suitability of the position.

Dr. Turchetta’s finding that appellant should not work in a position with “constant contact” with 

the public is unclear.

17

 OWCP failed to obtain a clear opinion from Dr. Turchetta as to whether 

she had the capacity to work in the selected position prior to reducing her wage-loss 

compensation.18 It consequently failed to meet its burden of proof to reduce appellant’s 

compensation effective October 19, 2021 based on its finding that she had the capacity to earn 

wages as an administrative assistant.

CONCLUSION

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

effective October 19, 2021 based on her capacity to earn wages in the constructed position of an 

administrative assistant.

ORDER

IT IS HEREBY ORDERED THAT the October 19, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: February 10, 2023

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

17 See S.B., Docket No. 19-0781 (issued February 2, 2022); G.E., Docket No. 18-0663 (issued December 21, 2018).

18 See G.E., id.; W.C., Docket No. 17-0562 (issued November 17, 2017).