United States Department of Labor

Employees’ Compensation Appeals Board

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S.M., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION-OAKDALE, Oakdale, LA, 

Employer

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Docket No. 23-0353

Issued: July 13, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 13, 2023 appellant, through counsel, filed a timely appeal from a December 8, 

2022 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 reduced appellant’s wage-loss compensation 

effective April 6, 2022 based on his capacity to earn wages in the constructed position of a legal 

investigator.

FACTUAL HISTORY

On September 22, 2010 appellant, then a 38-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he felt a pop and experienced left hip pain 

walking up the stairs while in the performance of duty. OWCP accepted the claim for enthesopathy 

of the left hip region. It paid him for total disability on the supplemental rolls effective 

November 7, 2010, and on the periodic rolls effective December 19, 2010. On November 17, 2010 

appellant underwent left hip surgery. On March 23, 2011 he returned to work with restrictions. 

On March 7, 2019 appellant stopped work due to the withdrawal of his limited-duty 

position. OWCP paid him wage-loss compensation from March 6 through June 2, 2019, when he 

resumed work. Appellant again stopped work on December 4, 2019 and did not return. OWCP 

paid him wage-loss compensation for total disability on the supplemental rolls from December 4, 

2019 through January 4, 2020 and on the periodic rolls effective January 5, 2020. 

On January 3, 2020 OWCP referred appellant to Dr. James Elmer Butler, III, a Boardcertified orthopedic surgeon, for a second opinion examination. 

In a report dated February 6, 2020, Dr. Butler provided his review of the medical evidence 

of record, including the results of diagnostic testing. On examination he found full strength of the 

lower extremities and tenderness to palpation of the left hip. Dr. Butler diagnosed enthesopathy 

of the left hip, a left hip labral tear, left hip femoroacetabular impingement, and left hip 

osteoarthritis. He attributed the diagnosed conditions to the September 22, 2010 employment 

injury. Dr. Butler recommended a total hip replacement. He advised that a functional capacity 

evaluation (FCE) performed on February 6, 2020 demonstrated that appellant was unable to 

resume his usual employment but could work in a light-duty capacity.3 In a work capacity 

evaluation (Form OWCP-5c) of even date, Dr. Butler advised that he could perform light-duty 

employment with restrictions on pushing, pulling, and lifting up to 20 pounds for two hours per 

day and kneeling for two hours per day.

Based on Dr. Butler’s report, on March 31, 2020, OWCP expanded its acceptance of 

appellant’s claim to include specific joint derangements of the left hip, left hip sprain, and 

unilateral primary osteoarthritis of the left hip. 

On March 31, 2020 OWCP referred appellant to a vocational rehabilitation counselor for 

vocational rehabilitation.

3 A February 6, 2020 FCE indicated that appellant had put forth reliable effort and that he could perform at a light 

physical demand level. 
3

In an initial vocational rehabilitation report dated April 30, 2020, the vocational 

rehabilitation counselor noted that appellant had graduated high school and had attended a 

university from 1991 to 1993 with a major in nursing. Appellant was employed as a correctional 

officer performing duties such as passing and clearing food trays, and searching, cuffing, escorting, 

and moving inmates. Prior to that, he worked as a boilermaker, dog trainer, and pipefitter. The 

vocational rehabilitation counselor indicated that the positions of pipefitter, boilermaker, and dog 

trainer were skilled positions and that the position of correctional officer was a semi-skilled 

position. She identified the positions of cardiac monitor technician, security officer, and 

warehouse manager as suitable for appellant based on a transferrable skills analysis. 

On June 9, 2020 the vocational rehabilitation counselor completed a job classification 

(Form CA-66) for the position of legal investigator. The duties included researching and preparing 

cases related to administrative appeals, examining government, personnel, college, and university 

rules and regulations, answering questions on rights and benefits, advising how to apply rules to 

individual situations, presenting arguments and evidence at appeal hearings, and calling upon 

witnesses to testify at hearings. The vocational rehabilitation counselor advised that the position 

had a specific vocational preparation (SVP) of seven and required two to four years of training. 

She found that appellant met the SVP because it was a skilled position and he had “held skilled 

positions in his past work history.” The vocational rehabilitation counselor determined that the 

job was performed in sufficient geographical numbers in appellant’s area at a weekly wage of 

$13.03 per hour according to employment data.

In a vocational rehabilitation plan dated June 9, 2020, an unidentified individual found that 

the position of legal investigator was medically suitable. The plan noted that appellant had worked 

in a position where he monitored persons and equipment and noticed details, which would aid him 

as a legal investigator.

A rehabilitation plan and award dated June 9, 2020 provided appellant with 90 days of job 

placements services with a goal to obtaining a position as a legal investigator or lock assembler. 

OWCP subsequently approved extensions of job placement services through March 25, 2021.

In a Form CA-66, for the position of legal investigator, dated July 3, 2021, the vocational 

rehabilitation counselor found that the position was reasonably available within appellant’s 

commuting area based on federal employment data at a weekly wage of $17.18 per hour.

In a closure report dated July 3, 2021, the vocational rehabilitation counselor identified the 

jobs of security officer, lock assembler, and legal investigator as suitable for appellant. 

On March 2, 2022 OWCP advised appellant of its proposed reduction of his wage-loss 

compensation as the evidence established that he could earn wages in the selected position of legal 

investigator earning wages of $687.20 per week. It afforded him 30 days to submit evidence or 

argument regarding the proposed reduction of his compensation. No response was received.

By decision dated April 6, 2022, OWCP reduced appellant’s wage-loss compensation 

effective that date as he had the capacity to earn wages of $687.20 per week as a legal investigator, 

Department of Labor, Dictionary of Occupational Titles (DOT) No. 119.267-022. It found that 

the February 6, 2020 report from Dr. Butler represented the weight of the medical evidence and 
4

established that appellant could perform the selected position. OWCP applied the formula set forth 

in Albert C. Shadrick4 as codified in section 10.403 of OWCP’s regulations (20 C.F.R. § 10.403),

to determine appellant’s loss of wage-earning capacity (LWEC).

On April 27, 2022 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on September 23, 2022. Counsel noted that the duties of a 

legal investigator included researching and preparing cases, answering questions about rights and 

benefits, and present arguments at appeal hearings. Appellant related that he had one year of 

college and that his duties as a correctional officer consisted of escorting and securing inmates. 

He indicated that he was unfamiliar with researching rules and regulations. Appellant advised that 

he had worked as a pipefitter for 8 years and as a correctional officer for 17 years. Counsel asserted 

that the job was not within appellant’s vocational capabilities as it required an entirely different 

skill set. 

By decision dated December 8, 2022, OWCP’s hearing representative affirmed the April 6, 

2022 decision.

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 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.6 An employee’s actual earnings generally 

best reflect his or her wage-earning capacity.7 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.8 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.9

4

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

5

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

6

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

7

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

8

Id.

9

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).
5

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.10 

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

condition and the evaluation must be reasonably current.11 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.12

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’s, Dictionary of Occupational Titles or 

otherwise available in the open market, that fits the employee’s capabilities with regard to his 

physical limitations, education, age, and prior experience. 13 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.14 Lastly, OWCP applies the 

principles set forth in 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 improperly reduced appellant’s wage-loss compensation 

effective April 6, 2022 based on his capacity to earn wages in the constructed position of a legal 

investigator.

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. 17 

In a report dated February 6, 2020, Dr. Butler, an OWCP referral physician, diagnosed 

enthesopathy of the left hip, a left hip labral tear, left hip femoroacetabular impingement, and left 

hip osteoarthritis causally related to the September 22, 2010 employment injury. He opined that 

an FCE performed on that date indicated that appellant could work in a light-duty capacity. In an 

10 See M.H., Docket No. 21-1055 (issued March 30, 2022); M.A., 59 ECAB 624, 631 (2008).

11 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).

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

13 Id. at Vocational Rehabilitation Services, Chapter 2.813.7b (February 2011).

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

15 Supra note 4.

16 20 C.F.R. § 10.403.

17 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).
6

accompanying Form OWCP-5c, Dr. Butler provided work restrictions of pushing, pulling, and 

lifting up to 20 pounds for two hours per day and kneeling for two hours per day.

OWCP relied upon Dr. Butler’s opinion in finding that appellant could perform the duties 

of the selected position of legal investigator. Its procedures, however, provide that medical 

suitability of an offered position must be based on a reasonably current medical evaluation. 18 

OWCP’s procedures further provide that, if the medical evidence is unclear, equivocal, or old 

enough to be considered stale, which is generally greater than 18 months, the claims examiner 

should seek clarification from a physician regarding the suitability of the position.19 

The Board finds that Dr. Butler’s report is more than two years earlier than OWCP’s 

reduction of appellant’s compensation and thus not reasonably current.20 OWCP, therefore, failed 

to establish that he had the capacity to earn wages in the selected position.

Additionally, the Board finds that OWCP has not established that appellant had the specific 

vocational preparation required for the position of legal investigator. The position requires two to 

four years of vocational preparation, with duties that include researching and preparing cases 

related to administrative appeals, examining government, personnel, college, and university rules 

and regulations, answering questions on rights and benefits, advising how to apply rules to 

individual situations, presenting arguments and evidence at appeal hearings, and ca lling upon 

witnesses to testify at hearings. The rehabilitation counselor indicated that appellant met the SVP 

for the position as he had performed other skilled positions. She noted in a report dated 

April 30, 2020 that he had performed the skilled positions of dog trainer and pipefitter and the 

semi-skilled position as a correctional officer. The rehabilitation counselor, however, did not 

explain how appellant’s work in the skilled positions of pipefitter or dog trainer qualified him to 

perform the duties of a legal investigator.21 The burden of proof is on OWCP to establish that 

appellant has the wage-earning capacity of a legal investigator. This requires it to establish how 

he met the specific vocational preparation for the selected position. There is nothing in the record 

to indicate that appellant had the necessary background and experience to perform the selected 

position.22

18 Supra note 11 at Chapter 2.816.4(d) (June 2013). See also G.F., Docket No. 20-1031 (issued December 31, 

2020) (the Board found that the medical evidence relied upon by OWCP was over two years old and thus not 

reasonably current); M.A., 59 ECAB 624 (2008);CarlC. Green, Jr., 47 ECAB 737, 746 (1996); Anthony Pestana, 39 

ECAB 980 (1988) (where the Board found that a three-year-old medical evaluation is not reasonably current for a 

wage-earning capacity determination).

19 Supra note 11 at Chapter 2.816.4 (June 2013); P.B., Docket No. 22-0199 (issued September 6, 2022); G.F., 

Docket No. 20-1031 (issued December 31, 2020).

20 G.F., id.

21 See M.D., Docket No. 09-0514 (issued October 9, 2009); Luis R. Flores, 54 ECAB250(2002); HaroldD. Snyder, 

38 ECAB 763 (1987).

22 See Robert W. Carlisle, Docket No. 97-1299 (issued December 3, 1998).
7

As OWCP has not met its burden of proof to establish that the selected position was 

medically or vocational suitable, the Board will reverse OWCP’s December 8, 2022 decision.

CONCLUSION

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

effective April 6, 2022 based on his capacity to earn wages in the constructed position of a legal 

investigator.

ORDER

IT IS HEREBY ORDERED THAT the December 8, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 13, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board