United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kahului, HI, Employer 

__________________________________________ 

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Docket No. 13-1342 

Issued: May 27, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 14, 2013 appellant, through her attorney, filed a timely appeal from the 

April 3, 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. 

ISSUE 

The issue is whether modification of OWCP’s October 27, 2006 loss of wage-earning 

capacity (LWEC) determination is warranted. 

FACTUAL HISTORY 

On the prior appeal,2

 the Board set aside OWCP’s October 25, 2011 decision denying 

modification of its October 27, 2006 LWEC determination. OWCP had analyzed appellant’s 

claim for wage-loss compensation under the customary criteria for modifying a LWEC 

 1

 5 U.S.C. § 8101 et seq.

2

 Docket No. 12-0316 (issued July 24, 2012). 
2

determination without acknowledging FECA Bulletin No. 09-05 or following the procedures 

outlined therein for claims, such as this, in which a limited-duty position is withdrawn pursuant 

to the national reassessment process (NRP). The Board remanded the case to OWCP with 

instructions to comply with the bulletin.3

 

On August 22, 2012 OWCP asked the employing establishment to notify in writing 

whether the position on which the LWEC determination was based was an actual bona fide

position at the time of the rating. It added: “Please review your files for contemporaneous 

evidence concerning the position.” 

On November 14, 2012 OWCP received the following reply: 

“Nov[ember] 16, 2012 

“[Claims examiner] 

“[Appellant’s] position was an actual bona fide position at the time of the rating. 

“Thanks,” 

In a decision dated December 11, 2012, OWCP denied modification of its 

October 27, 2006 LWEC determination. It noted that the employing establishment had verified 

in writing that the rated position was an actual bona fide position at the time of the rating and 

that this was supported by the job offer in the record. Further, appellant’s current restrictions 

remained the same since she was rated and were listed as permanent, indicating no material 

worsening of her condition. “As such, the medical evidence indicates there has been no material 

change in the nature and extent of the injury-related condition and that the reason for the loss of 

work hours is the U.S. Postal Service’s NRP.” OWCP noted that the unavailability of full-time 

work due to the NRP was not one of the criteria for modifying a formal LWEC determination. 

On April 3, 2013 an OWCP hearing representative affirmed. He found that the July 2006 

job offer contained a specific occupational title and a written description of duties. Appellant 

testified that she performed the duties described, which were normal functions of a postal clerk, 

and the evidence established a bona fide position. Further, the medical evidence showed no 

material change in the accepted condition or prescribed work limitations. Consequently, there 

was no basis for modification of the October 27, 2006 LWEC determination. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.4

 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to 

alternative employment with an actual wage loss, OWCP must determine whether the earnings in 

 3

 On February 1, 2005 appellant, a 33-year-old mail carrier, filed an occupational disease claim alleging that her 

carpal tunnel syndrome, right rotator cuff syndrome and neck and low back pain were the result of performing the 

duties of her position. OWCP accepted her claim for right supraspinatus tendinitis, right carpal tunnel syndrome and 

cervical, thoracic and lumbosacral subluxations. 

4

 5 U.S.C. § 8102(a). 
3

the alternative employment fairly and reasonably represent the employee’s wage-earning 

capacity (WEC).5

Once a LWEC 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. These are the customary criteria for modification, and the burden of 

proof is on the party attempting to show that modification of the determination is warranted.6

FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty 

positions are withdrawn pursuant to NRP. If, as in the present case, a formal WEC decision has 

been issued, OWCP must develop the evidence to determine whether a modification of that 

decision is appropriate.7

ANALYSIS 

As the Board noted on the prior appeal, FECA Bulletin No. 09-05 requires OWCP to 

develop the evidence to determine whether a modification of a WEC determination is 

appropriate. It shifts the burden onto OWCP to determine, among other things, whether the 

LWEC determination was based on a bona fide position. The Board finds that OWCP did not 

adequately develop the evidence under FECA Bulletin No. 09-05. 

The response OWCP received to its August 22, 2012 request for information was 

inadequate. The response consisted of a single sentence from someone identified as Lori, who 

stated that the position offered in 2006 was a bona fide position. OWCP did not discharge its 

responsibility under FECA Bulletin No. 09-05 with such a perfunctory response. 

OWCP’s hearing representative attempted to rehabilitate its decision by pointing to such 

things as a specific occupational title and a written description of duties, which were found the 

normal functions of a postal clerk. There is evidence that the position was both sheltered and 

odd-lot. The July 7, 2006 job offer stated that the position was “for incumbent only.” The labor 

distribution code8

 indicated that the position was one of miscellaneous customer service and 

administrative duties. The offer listed 21 such duties, from assisting at the will-call window 

when needed, to assisting customers standing in line to ensure the article is properly prepared for 

mailing, to rubberstamping nixie mail, to answering telephones and handling routine inquiries, to 

filling vending machines with stamps. The offer noted that while all of these duties fell within 

appellant’s restrictions, it did not mean that she would perform them all on a daily basis. 

 5

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

Chapter 2.814.7 (October 2009). 

6 Daniel J. Boesen, 38 ECAB 556 (1987). 

7

 FECA Bulletin No. 09-05 (issued August 18, 2009). 

8

 A labor distribution code is a two-digit number that describes the major work assignments within a postal 

facility. The first digit represents the functional area (e.g., mail processing) and the second digit identifies the type 

of activity (e.g., supervision). Glossary of Postal Terms, Publication 32 (USPS, Washington, DC), July 2013 at 

p. 112. 
4

As FECA Bulletin No. 09-05 points out, wage-earning capacity is a measure of the 

employee’s ability to earn wages in the open labor market under normal employment conditions. 

It remains unclear how appellant’s ability to perform the miscellaneous and sundry duties of the 

July 7, 2006 job offer demonstrated that she has the capacity, with her physical limitations, to 

earn the same wages ($46,331.00 annually) performing the same or similar duties in the open 

labor market. It is necessary, therefore, that OWCP establish that it based the LWEC 

determination on an actual bona fide position, one that demonstrates the employee’s capacity to 

earn wages in the open labor market. 

The Board finds that OWCP did not discharge its responsibility under FECA Bulletin 

No. 09-05 and has not complied with the Board’s July 24, 2012 order. Accordingly, the Board 

will set aside OWCP’s April 3, 2013 decision and remand the case for further development of 

the evidence and a de novo decision on whether the October 27, 2006 LWEC determination 

should be modified. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further development of the 

evidence is warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the April 3, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action. 

Issued: May 27, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board