United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.G., Appellant 

and 

U.S. MARINE CORPS, AIR STATION, 

Cherry Point, NC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-386 

Issued: May 27, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 6, 2013 appellant filed a timely appeal from a July 25, 2013 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

ISSUE 

The issue is whether appellant has established that modification of an April 17, 2013 

wage-earning capacity determination was warranted. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted evidence on appeal. The Board has reviewed the evidence that was before OWCP at the 

time of the July 25, 2013 decision, but cannot review any new evidence. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On March 11, 2009 appellant, then a 44-year-old boiler plant operator, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a right knee injury from a slip and fall in the 

performance of duty on March 5, 2009. OWCP accepted the claim for right knee torn medial 

meniscus, right knee internal derangement and right leg joint derangement. Appellant underwent 

right knee surgeries on January 12 and July 29, 2010, and May 12, 2011. He received 

compensation for wage loss commencing April 24, 2009. 

The record indicates that the employing establishment offered appellant a position as a 

motor vehicle dispatcher. The position was described as mostly sedentary, with some walking 

carrying, bending or lifting up to 25 pounds. In a report dated October 26, 2012, Dr. Robert 

Alex Creighton, a Board-certified orthopedic surgeon, indicated that appellant had received a job 

offer that required lifting up to 25 pounds. He stated that appellant wanted to try the position. 

Dr. Creighton indicated that appellant continued to have right knee discomfort and diagnosed 

right knee early arthritis. 

Appellant accepted the position on December 4, 2012, and began working on 

December 17, 2012. A memorandum of telephone call with the employing establishment 

indicated that appellant’s current pay rate was $36,384.00 annually. By letter dated January 23, 

2013, OWCP advised appellant that it was reducing his wage-loss compensation based on actual 

earnings. The accompanying worksheet indicated the current pay rate for the date-of-injury job 

was $1.081.63 per week, and his current actual earnings were $699.69 per week. 

In a report dated February 15, 2013, Dr. Creighton stated that appellant was complaining 

of increased knee pain. He reported that appellant “appears [to be] doing more than his 

restrictions guidelines stated.” Dr. Creighton provided results on examination and diagnosed 

right knee early arthritis. 

By decision dated April 17, 2013, OWCP determined that actual earnings as a motor 

vehicle dispatcher of $699.69 per week fairly and reasonably represented his wage-earning 

capacity. It stated that pursuant to 5 U.S.C. § 8115(a) it was reducing appellant’s wage-loss 

compensation based on an earning capacity of 65 percent of his date-of-injury position. 

On May 2, 2013 appellant filed a recurrence claim (Form CA-2a) indicating that he had 

stopped working as of April 22, 2013. He asserted that the new position he had taken “did not 

meet the restrictions” provided by his physician and “what was supposed to be a sedentary 

position was not.” Appellant stated that, as a result of being placed in the new job, he suffered 

increased pain and swelling. He also asserted that he had to see a physician for stress associated 

with “the entire ordeal that he had to endure during the last four years.” 

In a report dated April 19, 2013, Dr. Creighton stated that appellant was seen for 

continuing right knee issues and difficulty with his current work placement. He reported that 

appellant suffered from knee arthritis and received periodic steroid injections. According to 

Dr. Creighton, appellant was unable to do stairs or any type of manual labor such as washing 

buses, which appellant was currently performing. He diagnosed continued arthritis. 
3

By report dated June 20, 2013, Dr. Creighton responded to specific questions from 

OWCP regarding appellant’s condition. He diagnosed “osteoarthritis postinjury and surgeries,” 

stated “yes” there was a material worsening of appellant’s condition on April 22, 2013 from 

“increased pain due to activity beyond his work restrictions as prescribed.” Dr. Creighton 

indicated that appellant had positive effusion and swelling with decreased range of motion, and 

walked with a limp. In a note dated July 17, 2013, he stated that appellant had been 

“lifting/walking beyond what a sedentary job entails.” 

In a decision dated July 25, 2013, OWCP denied modification of the April 17, 2013 

wage-earning capacity determination. It found that the evidence was insufficient to warrant 

modification. 

LEGAL PRECEDENT 

Under 5 U.S.C. § 8115(a), 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. Generally, wages actually earned are the best measure of a wage-earning capacity and, 

in the absence of evidence showing that they do not fairly and reasonably represent the injured 

employee’s wage-earning capacity, must be accepted as such measure.3

 

OWCP procedures state that, after a claimant has been working for 60 days, it will make 

a determination as to whether actual earnings fairly and reasonably represent wage-earning 

capacity.4 The formula for determining loss of wage-earning capacity based on actual earnings, 

developed in the Albert C. Shadrick decision,5

 has been codified at 20 C.F.R. § 10.403. OWCP 

first calculates an employee’s wage-earning capacity in terms of percentage by dividing the 

employee’s earnings by the current pay rate for the date-of-injury position.6 

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.7

 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.8 

 3 Dennis E. Maddy, 47 ECAB 259 (1995). 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.814.7(c) (February 2013). 

5

 5 ECAB 376 (1953). 

6

 20 C.F.R. § 10.403(d). 

7 Sue A. Sedgwick, 45 ECAB 211 (1993). 

8 Id.
4

ANALYSIS 

In the present case, appellant had begun work in the position of motor vehicle dispatcher 

as of December 17, 2012. By decision dated April 17, 2013, OWCP found that the actual 

earnings of $699.69 a week fairly and reasonably represented his wage-earning capacity. When 

appellant stopped working on April 22, 2013, the issue was whether the wage-earning capacity 

determination should be modified. 

A modification of the wage-earning capacity determination is warranted, as noted above, 

if there is a material change in the nature and extent of the employment-related condition. 

Although the attending physician, Dr. Creighton, stated in his June 20, 2013 report that “yes” 

there was a material change on April 22, 2013, this is not itself sufficient to establish a 

modification of the wage-earning capacity determination. The Board notes that Dr. Creighton 

continued to diagnose right knee arthritis. The accepted conditions in this case are right knee 

torn medial meniscus, right knee internal derangement and right leg joint derangement. Since 

the material change must be established in an employment-related condition, an arthritis 

condition must first be established as employment related. Dr. Creighton made no reference to 

the causal relationship between right knee arthritis and the March 5, 2009 employment injury. 

The issue presented on this appeal is whether there was a material change in a condition causally 

related to the March 5, 2009 employment injury. Dr. Creighton does not provide a medical 

report, with an opinion based on sound medical reasoning and an accurate background, 

establishing right knee arthritis as causally related to the March 5, 2009 employment injury.9

 

The Board accordingly finds that appellant has not established a modification of the April 17, 

2013 wage-earning capacity determination based on a material change in an employment-related 

condition as of April 22, 2013. 

Another basis for modification of the April 17, 2013 wage-earning capacity 

determination is evidence that the original determination was erroneous. Appellant did not 

provide specific arguments with respect to error in the original wage-earning capacity 

determination. As noted above, wages actually earned are generally the best measure of wageearning capacity and appellant did work in the position for more than 60 days. Appellant has 

stated that he felt the job was not a sedentary job, but the job description indicated that the 

position was not completely sedentary but did have physical demands that included bending and 

lifting. Dr. Creighton stated in a February 15, 2013 report that appellant appeared to be doing 

more than his “restriction guidelines,” but it is unclear what specific restrictions he was referring 

to, or how the job exceeded these restrictions. Based on the evidence of record, appellant did not 

establish that the original wage-earning capacity determination was erroneous. 

It is appellant’s burden of proof to establish that a modification of the April 17, 2013 

wage-earning capacity determination was warranted. Based on the evidence of record, appellant 

did not meet his burden of proof. Appellant may request modification of the wage-earning 

capacity determination, supported by new evidence or argument, at any time before OWCP. 

 9

 Probative medical evidence is evidence from a physician who, on the basis of a complete and accurate factual 

and medical history, concludes that the condition is causally related to the employment injury and supports that 

conclusion with sound medical reasoning. See D.E., Docket No. 13-2104 (issued March 7, 2014); S.S., 59 ECAB 

315 (2008). 
5

CONCLUSION 

The Board finds appellant has not established that a modification of the April 17, 2013 

wage-earning capacity determination was warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 25, 2013 is affirmed. 

Issued: May 27, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board