United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.L., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

87th FORCE SUPPORT SQUADRON, 

McGUIRE AIR FORCE BASE, NJ, Employer

__________________________________________

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Docket No. 23-0060

Issued: June 26, 2023

Appearances: Case Submitted on the Record

Russell Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 21, 2022 appellant, through counsel, filed a timely appeal from an April 27, 

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.3

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.

3 The Board notes that following the April27, 2022 decision, appellant submitted additional evidence to OWCP.

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 appellant has met his burden of proof to modify OWCP’s October 15, 

2021 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On June 10, 2009 appellant, then a 52-year-old aircraft engine mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on June 4, 2009 he sustained an injury when he lost control 

of his motorcycle during a training exercise, causing him to fall to the ground and slide, while in 

the performance of duty. He stopped work on that date. On June 5, 2009 appellant underwent left 

leg surgery, including open reduction internal fixation and lateral meniscus repair. OWCP 

accepted the claim for closed fractures of the left ribs and left tibia. It paid him wage-loss 

compensation on the supplemental rolls, effective August 3, 2009.4 On January 6, 2010 appellant

underwent total left knee replacement surgery. On July 11, 2014 he underwent total left knee 

revision surgery. Both procedures were authorized by OWCP.

In March 2015, appellant began to participate in an OWCP-sponsored vocational 

rehabilitation program designed to return him to work.

On July 7, 2020 OWCP referred appellant, along with the case record, a statement of 

accepted facts (SOAF) and a series of questions, to Dr. John Bannon, a Board-certified orthopedic 

surgeon, for a second opinion examination and evaluation. It requested that Dr. Bannon evaluate 

appellant’s injury-related condition and assess his ability to work.

In a July 23, 2020 report, Dr. Bannon discussed appellant’s factual and medical history, 

noting that appellant presently complained of pain in the medial area of his left knee. He reported 

physical examination findings, including mild varus instability upon flexion of the left knee with 

no effusion or joint line tenderness. Dr. Bannon advised that anterior and posterior drawer signs 

were negative in the left knee and he could not detect any mechanical symptoms with passive or 

active motion of the knee. He noted that an August 10, 2020 x-ray of the left knee revealed a wellpositioned total knee replacement. Dr. Bannon indicated that appellant could not return to his 

date-of-injury job as an aircraft engine mechanic due to the stress that the duties of such a job 

would place on his left knee. However, he determined that appellant could perform light work 

with no restriction on the amount of time engaged in sitting. Dr. Bannon further described 

appellant’s work restrictions in a work capacity evaluation (Form OWCP-5c) dated 

August 17, 2020. He advised that appellant could perform sedentary-duty work for eight hours 

per day and was capable of lifting, pushing and pulling up to 20 pounds for eight hours per day. 

Appellant could stand and walk for up two hours per day, but he could not engage in squatting, 

kneeling, or climbing. 

In a December 3, 2020 report, Dr. Alvin C. Ong, a Board-certified orthopedic surgeon, 

noted that appellant reported some discomfort around his left knee joint with activities such as 

mowing his lawn, but denied any instability or significant discomfort or pain. He detailed physical 

examination findings and diagnosed presence of left artificial knee. Dr. Ong noted that the left 

4 OWCP paid appellant wage-loss compensation on the periodic rolls, effective August 24, 2014.
3

knee appeared, from a mechanical standpoint, to be in overall good condition. In an attached form 

report of even date, he indicated that appellant could lift up to 50 pounds.

In March 2021, appellant’s rehabilitation counselor determined that appellant was capable 

of earning wages in the selected position of receptionist (Department of Labor’s Dictionary of 

Occupational Titles(DOT) No. 237.367-038). The rehabilitation counselor found that a state labor 

survey showed that the receptionist position was reasonably available within appellant’s 

commuting area with an average wage of $628.40 per week. The receptionist position involved 

receiving visitors in an office setting, answering telephone calls, and performing some clerical 

duties such as typing correspondence on a computer. The receptionist position constituted 

sedentary-duty work and its physical requirements included occasionally lifting up to 20 pounds

and frequently/constantly lifting up to 10 pounds.

In a notice dated August 25, 2021, OWCP advised appellant that, under 5 U.S.C. § 8106 

and 5 U.S.C. § 8115, it proposed to adjust his wage-loss compensation based on his ability to earn 

wages in the constructed position of receptionist. It noted that position had been selected by 

appellant’s vocational rehabilitation counselor and that a state labor market survey demonstrated 

that it was reasonably available in appellant’s commuting area with an average weekly wage of 

$628.40. OWCP informed appellant that the duties of the position were within the work 

restrictions recommended by Dr. Bannon, OWCP’s referral physician. It afforded him 30 days to 

submit evidence and argument challenging the proposed reduction. 

By decision dated October 15, 2021, OWCP reduced appellant’s wage-loss compensation, 

effective that date, based on its determination that he was capable of earning wages in the 

constructed position of receptionist. It found that the constructed position of receptionist had 

wages of $628.40 per week and had been shown by a labor market survey to have been reasonably 

available in appellant’s commuting area. OWCP applied the principles set forth in the Albert C. 

Shadrick,

5 decision to determine the percentage of appellant’s LWEC.

On October 21, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. He requested modification of the 

October 15, 2021 LWEC determination. During the February 17, 2021 hearing, counsel argued 

that the October 15, 2021 LWEC determination should be modified because appellant was not 

physically capable of working in the constructed position of receptionist and because his 

“mediocre” computer skills prevented him from performing the position. By decision dated 

April 27, 2022, OWCP’s hearing representative affirmed OWCP’s October 15, 2021 LWEC 

determination, finding that appellant had not met his burden of proof to modify the original

October 15, 2021 LWEC determination.

LEGAL PRECEDENT

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

modification of compensation benefits.6 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 

5

5 ECAB 376 (1953). See also 20 C.F.R. § 10.403(d).

6 T.D., Docket No. 20-1088 (issued June 14, 2021); James B. Christenson, 47 ECAB 775, 778 (1996); WilsonL. 

Clow, Jr., 44 ECAB 157 (1992).
4

disabled for all gainful employment, is entitled to compensation computed based on his or her 

LWEC.7 An employee’s actual earnings generally best reflect his or her wage-earning capacity.8 

Absent evidence that actual earnings do not fairly and reasonably represent the employee’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity.9

 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 disabled condition.10 

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.11 

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

condition and the evaluation must be reasonably current.12 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.13 When OWCP makes a medical determination 

of partial disability and of specific work restrictions, it may refer the employee’s case to an OWCP 

wage-earning capacity specialist for selection of a position listed in the Department of Labor’s 

Dictionary of Occupational Titles or otherwise available in the open labor market that fits the 

employee’s capabilities with regard to his or her physical limitations, education, age, and prior 

experience.14 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.15 Finally, application of the principles set forth in the Shadrick decision will result in the 

percentage of the employee’s LWEC.16

7

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

8 T.D., id.; Hayden C. Ross, 55 ECAB 455, 460 (2004).

9

S.J., Docket No. 19-0186 (issued August 2, 2019); Hayden C. Ross, id.

10 5 U.S.C. § 8115(a);L.M., Docket No. 20-1038 (issued March 10, 2021); Mary Jo Colvert, 45 ECAB 575 (1994); 

Keith Hanselman, 42 ECAB 680 (1991).

11 L.M., id.; M.A., 59 ECAB 624, 631 (2008).

12 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.4d (June 2013).

13 L.M., supra note 10; N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, id. at Chapter 2.816.4c 

(June 2013).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b 

(February 2011).

15 The job selected for determining wage-earning capacity must be a position that is reasonably available in the 

general labor market in the commuting area in which the employee resides. L.M., supra note 10; DavidL. Scott, 55 

ECAB 330, 335 n.9 (2004); Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.816.6 (June 2013).

16 20 C.F.R. § 10.403(d); see Albert C. Shadrick, 5 ECAB 376 (1953).
5

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless there is a material change in the nature and extent of 

the injury-related condition, the employee has been retrained or otherwise vocationally 

rehabilitated, or the original determination was, in fact, erroneous.17 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.18

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify OWCP’s

October 15, 2021 LWEC determination.

In March 2021, appellant’s rehabilitation counselor determined that appellant was capable 

vocational of earning wages in the selected position of receptionist (DOT No. 237.367-038). The 

rehabilitation counselor found that a state labor survey showed that the receptionist position was 

reasonably available within appellant’s commuting area with an average wage of $628.40 per 

week. The receptionist position involved receiving visitors in an office setting, answering 

telephone calls, and performing some clerical duties such as typing correspondence. The 

receptionist position constituted sedentary-duty work and its physical requirements included 

occasionally lifting up to 20 pounds and frequently/constantly lifting up to 10 pounds. The Board 

finds that OWCP properly relied on the rehabilitation counselor’s opinion that appellant was 

vocationally capable of working as a receptionist and that the position was reasonably available. 19 

The Board further finds that the evidence of record shows that the physical requirements 

of the position were within the best measure of appellant’s work capability at the time as 

represented by the evaluation of Dr. Bannon, the OWCP referral physician. In his July 23, 2020 

report, Dr. Bannon indicated that appellant could not return to his date-of-injury job as an aircraft 

engine mechanic due to the stress that the duties of such a job would place on his left knee. 

However, he determined that appellant could perform sedentary-duty work with no restriction on 

the amount of time engaged in sitting. Dr. Bannon further described appellant’s work restrictions 

in a work capacity evaluation dated August 17, 2020. He advised that appellant could perform 

sedentary-duty work for eight hours per day and was capable of lifting, pushing and pulling up to 

20 pounds eight hours per day. Appellant could stand/walk for up two hours per day, but he could 

not engage in squatting, kneeling, or climbing. The Board finds that these work restrictions are 

within the physical requirements of the constructed position of receptionist.

The Board further finds that OWCP properly applied the principles set forth in the Shadrick

decision to calculate the percentage of appellant’s LWEC.20 For these reasons, appellant has not 

shown that the original October 15, 2021 LWEC determination was erroneous.

17 C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

18 See T.M., Docket No. 08-975 (issued February 6, 2009).

19 See M.P., Docket No. 18-0094 (issued June26, 2018) (finding that the vocationalrehabilitation counselor is an 

expert in the field of vocationalrehabilitation and that OWCP may rely on his or her opinion in determining whether 

the job is vocationally suitable and reasonably available).

20 See supra note 5. See also 20 C.F.R. § 10.403(d).
6

Appellant argued that a modification of the October 15, 2021 LWEC determination was 

warranted because there was a material change in the nature and extent of the injury -related 

condition such that he could not perform the receptionist position.21 However, he did not establish 

such a material change because he did not submit medical evidence, dating from after the 

October 15, 2021 LWEC determination, to support this argument. Therefore, the Board finds that 

appellant has not established that modification of the October 15, 2021 LWEC determination was 

warranted under this basis.

Appellant has not argued, and the case record does not support, that modification of the 

October 15, 2021 LWEC determination was warranted because he has been retrained or otherwise 

vocationally rehabilitated.

22

 The Board finds that he has not established entitlement to such 

modification on this basis. For these reasons, appellant has not met his burden of proof to modify 

the October 15, 2021 LWEC determination.

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

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met his burden of proof to modify OWCP’s

October 15, 2021 LWEC determination.

21 See supra note 17.

22 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the April 27, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 26, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board