United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 14-1426 

Issued: April 20, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 2, 2014 appellant, through counsel, filed a timely appeal of a March 25, 2014 

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 appellant met her burden of proof to modify a February 1, 2000 loss 

of wage-earning capacity (LWEC) decision. 

FACTUAL HISTORY 

This is the second appeal before the Board. Appellant, a 41-year-old letter carrier, slipped 

on a patch of ice on January 5, 1994 and injured her neck and back. She filed a claim for benefits, 

which OWCP accepted for cervical and thoracic sprain and occipital contusion. On August 27, 

 1

 5 U.S.C. § 8101 et seq. 
2

1996 appellant filed a claim for benefits after she sustained a twisting injury to her back. OWCP 

accepted the claim for parathoracic muscle strain. On July 2, 1998 appellant filed a Form CA-2a 

claim for benefits, alleging that she sustained a recurrence of disability causally related to her 

accepted conditions. OWCP accepted the claim for exacerbation of cervical, thoracic, and lumbar 

myofascitis, and aggravation of degenerative disc disease of the lumbar spine. 

On March 25, 1999 appellant accepted a job as a modified letter carrier and began work 

on April 10, 1999. The position was tailored to her physical restrictions and allowed her to work 

for eight hours a day, with no pushing, pulling, or lifting over 25 pounds, and no repetitive 

climbing.2

By decision dated February 1, 2000, OWCP issued a wage-earning capacity decision 

finding that appellant had worked more than 60 days in the modified position and the actual 

wages she earned in the position of modified letter carrier, $635.90 per week, fairly and 

reasonably represented her wage-earning capacity. 

Appellant worked at her modified job until May 20, 2010, when the employing 

establishment transferred her to a temporary supervisory position. On May 20, 2011 the 

employing establishment withdrew the job under the National Reassessment Program (NRP). 

On July 18, 2011 appellant filed a Form CA-7, followed by other such forms, for a wage-loss 

compensation claim beginning July 2, 2011 and continuing until September 9, 2011. The 

employing establishment indicated on the forms that it no longer had work available for 

appellant within her medical restrictions. 

By decision dated October 12, 2011, OWCP denied modification of the February 1, 2000 

LWEC decision, finding that appellant failed to submit evidence sufficient to establish one of the 

three criteria required for modification. By decision dated April 16, 2012, an OWCP hearing 

representative affirmed the October 12, 2011 decision. 

In a decision dated December 14, 2012,3

 the Board set aside the April 16, 2012 decision. 

It found that OWCP improperly analyzed the case under the customary criteria for modifying a 

loss of wage-earning capacity determination and did not acknowledge FECA Bulletin No. 09-05, 

which requires OWCP to develop the evidence to determine whether a modification of that 

decision is appropriate when modified-duty positions are withdrawn pursuant to NRP.4

 The 

 2

 The job description stated: “Assigned to the South Euclid Station to case letter and flat mail on routes; check AZ mail against printouts; Delivery Confirmation Scanner A.M. list; DSIS volume input; DSIS hour transfers; balance 

hours on carrier report; deliver late arriving express mail; deliver hold mail; complete accounting period drive out 

forms; AIS Red Books; Mark-over mail; second notices and returns; AVUS; AL ADVANCE; All Quality Assurance 

Audits; Delivery Confirmation Scanner -- option two review against A.M. list and input of any missing numbers; 

P.M. Express or Priority Scanning, updating route books; answering telephones; Aviation Security Audit; man the 

caller window for customer pickup of certifieds, insureds, customs, c.o.d.s, parcels and hold mail; check in carriers 

at cage; weekly gas report. Assist manager with the new OSHA 200 Log requirements.” 

3

 Docket No. 12-1295 (issued December 14, 2012). 

4

 FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these types of cases, may 

undertake further nonmedical development, such as requiring the employing establishment to address in writing 

whether the position on which the loss of wage-earning capacity determination was based was a bona fide position 

at the time of the rating and to direct a review of its files for contemporaneous evidence concerning the position. 
3

Board found that OWCP was required to review whether a current medical report supported 

work-related disability and to further develop the evidence from appellant and the employing 

establishment if the case lacked current medical evidence. It therefore remanded the case for 

OWCP to further consider the case in conformance with FECA Bulletin No. 09-05 guidelines 

and to issue a de novo decision on appellant’s entitlement to wage-loss compensation beginning 

July 2, 2011. The complete facts of this case are set forth in the Board’s December 14, 2012 

decision and are herein incorporated by reference. 

In an August 2010 report, received by OWCP on January 22, 2013, Dr. David Hochman, 

Board-certified in internal medicine, stated that appellant was experiencing low back pain which 

radiated into the left lower extremity. He stated that appellant was reassigned to a letter carrier 

204B supervisor in August 2010 and that, apparently, her job duties as a 204B supervisor 

required her to push cages, push up tubs of mail, twist, and bend on a regular basis. This caused 

an exacerbation of her condition. Dr. Hochman diagnosed a permanent aggravation of the 

lumbar/thoracic degenerative disc disease stemming from her work activities, which remained 

symptomatic. He advised that appellant underwent a magnetic resonance imaging (MRI) scan in 

May 2011, which showed facet pathology at the L3-5 levels. Dr. Hochman opined that, within a 

reasonable degree of medical probability, there was a permanent aggravation of lumbar/thoracic 

degenerative disc disease as a result of her work activities while working as a 204B supervisor. 

Following the Board’s decision, the employing establishment submitted several 

documents to OWCP. These included: a Postal Service Form 50, effective April 10, 1999, 

which reassigned appellant from a carrier technician job to a modified rehabilitation job offer; a 

February 23, 1999 rehabilitation job offer, signed by appellant on March 25, 1999; limited-duty 

job offers dated November 23, 2007 and April 10, 2009; an assignment order, Postal Service 

Form 1723, temporary assignment order, starting May 24, 2010 and ending December 31, 2010; 

assignment orders, Postal Service Form 1723, starting May 27, 2010 ending December 31, 2011. 

The employing establishment indicated on the form that the rehabilitation job offer 

appellant signed on March 25, 1999 was in fact a bona fide position at the time of the LWEC 

rating. It stated that the temporary assignment order forms (Postal Service 1723 forms) were 

used as a written agreement between management and employees when an employee performed 

duties other than those in employee’s official job description, including higher level and training 

assignments. 

In order to determine appellant’s current condition, OWCP referred the case to 

Dr. Manhal Ghanma, Board-certified in orthopedic surgery. In a March 8, 2013 report, after 

reviewing the medical history and statement of accepted facts and stating findings on 

examination, he opined that the record indicated that she did not develop any radiculopathy as a 

result of her work injuries, as evidenced by the multiple records presented in her medical file. 

Dr. Ghanma advised that the imaging studies did not reveal any evidence of nerve root 

compression to support radiculopathy based on her work injuries. He stated that, while appellant 

had continued complaints of global left leg and foot numbness, these symptoms were attributable 

to nonaccepted conditions and not to her work injuries. Dr. Ghanma opined that the objective 

evidence in the file did not support evidence of radiculopathy either in the upper or the lower 

extremities. He advised that, in light of the lack of objective evidence to support radiculopathy, 

with her imaging studies revealing no evidence of nerve root compression, there was nothing in 
4

the record which supported a diagnosis of radiculopathy. Dr. Ghanma further advised that none 

of her accepted conditions would have resulted in radiculopathy, including cervical sprain, 

thoracic sprain, occipital contusion, parathoracic muscle strain, cervical, thoracic, and lumbar 

myofascitis, or aggravation of degenerative disc disease of the lumbar spine. 

In a decision dated April 16, 2013, OWCP denied modification of the original 

February 1, 2000 LWEC decision, finding that appellant had failed to establish any of the three 

elements required for modification; i.e., that the original LWEC rating was in error, that her 

accepted employment-related medical condition had materially changed, or that she had been 

retrained or otherwise been vocationally rehabilitated. It also reviewed the evidence of record in 

accordance with the procedures outlined in FECA Bulletin No. 09-05. OWCP stated that the 

evidence submitted by the employing establishment, consisting of the rehabilitation job offer and 

the Postal Service Form 50, Notice of Personnel Action form, clearly documented that at the 

time the rehabilitation job offer was issued and accepted on March 25, 1999, all parties involved 

understood that the job offer was a permanent, bona fide job offer and that it was not make shift 

nor odd lot. OWCP stated that this understanding was clearly supported by the fact that the 

employing establishment issued a Postal Service Form 50, Notice of Personnel Action, 

documenting that she was formally reassigned from the Carrier Tech Level-05 with routes to the 

modified rehabilitation job offer, effective April 10, 1999. 

OWCP further found that appellant had not submitted sufficient medical evidence to 

indicate or support a material change in her accepted conditions, as she had failed to provide any 

current medical evidence supporting that her accepted work-related condition had materially 

changed to the extent that she was unable to perform any work, either full time or part time, with 

or without restrictions. It found that there was no medical evidence from her treating physician 

addressing and explaining whether any residuals continued to disable her from her date-of-injury 

position. OWCP stated that it had referred her to Dr. Ghanma, whose March 8, 2013 report 

indicated that she did not develop any radiculopathy as a result of her work injuries, that the 

imaging studies did not reveal any evidence of nerve root compression to support radiculopathy 

based on her work injuries. It advised that, while appellant had continued complaints of left leg 

and foot numbness, Dr. Ghanma found that these symptoms were attributable to nonaccepted 

conditions and not to her accepted employment conditions, including cervical sprain, thoracic 

sprain, occipital contusion, parathoracic muscle strain, cervical, thoracic, and lumbar 

myofascitis, or aggravation of degenerative disc disease of the lumbar spine. Lastly, OWCP 

found that there was no evidence that she had been retrained or had otherwise been vocationally 

rehabilitated. 

By letter dated April 18, 2013, appellant, through her attorney, requested an oral hearing, 

which was held on August 14, 2013. At the hearing, appellant’s attorney argued that the LWEC 

decision was incorrect for two reasons, contending that appellant was not working in the job that 

was used for the 2000 LWEC decision when her job was withdrawn and that the job used for the 

LWEC decision was not a bona fide job offer. He asserted that since there was no hiring or 

firing hierarchy involved with that job, by definition, it could not be considered bona fide. 

Appellant stated that she was not working in that job when her position was withdrawn in 

May 2011. Counsel advised that she had been working in a supervisory capacity for a year after 

leaving her modified letter carrier, light-duty position. He noted that the supervisory job was not 

a light-duty position, but appeared to be within the claimant’s physical restrictions; however, due 
5

to NRP, the supervisory job was withdrawn. Counsel noted that when appellant tried to return to 

work in her prior light-duty position, there was no job available for her, as the position had been 

filled. He stated that appellant therefore filed for retirement, effective September 2, 2011. 

Appellant testified that the supervisory job she held was a 204B position. She stated that 

before she worked as a supervisor, she had been working as a modified letter carrier from 1999 

to 2010; this was a clerical job, the duties of which included sitting down, answering the 

telephone, changing addresses, casing mail for about an hour in the morning, and doing anything 

else her superiors asked her to do. Appellant asserted that, after about a year after she began 

working this job, her condition worsened. She stated that she stopped casing mail because it was 

aggravating her symptoms and that her manager at the time told her to stop this activity if it hurt, 

although she continued to do the other clerical work in this position and continued to perform the 

modified job for about 10 years, before becoming a supervisor in 2010. 

Appellant stated that a co-worker at a higher level noticed that many of her assigned 

duties were consistent with supervisory activities, and that she performed these duties well. As a 

result, management sent her to another station to work as a supervisor. Appellant advised that 

the job duties of the supervisory position were generally within her restrictions although it 

required a little more lifting, bending, and standing. She stated that she performed this position 

until a manager called her at home and told her the supervisory position was no longer available 

to her. Appellant tried to return to her regular-duty station and perform her old position there, 

but the position had been filled. She stated that her last day of work was May 7, 2011 and that 

she remained in a pay status through May 20, 2011, due to vacation time. When she returned to 

work from her vacation, appellant received NRP paperwork and was told she no longer had a 

job. She filed a union grievance, which she won, and in an August 6, 2012 prearbitration 

settlement it was stipulated that she was entitled to back wages for all time lost between May 20, 

2011 through the date of her retirement. 

Appellant submitted a copy of the August 6, 2012 settlement agreement which indicated 

that she had won her grievance against management when it failed to provide her with eight 

hours of work as of May 20, 2011. The agreement awarded her all lost wages and benefits from 

May 20, 2011 to the date of her retirement that she would have otherwise received as if she had 

worked an eight-hour day, including all wages, annual leave, sick leave, and retirement benefits. 

In a decision dated March 25, 2014, an OWCP hearing representative affirmed the 

April 16, 2013 decision. 

LEGAL PRECEDENT 

A wage-earning capacity decision is a determination that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.5 Section 8115(a) of FECA provides that, in 

determining compensation for partial disability, the wage-earning capacity of an employee is 

determined by his or her actual earnings if his or her actual earnings fairly and reasonably 

 5 See Katherine T. Kreger, 55 ECAB 633 (2004). See 5 U.S.C. § 8115 (determination of wage-earning capacity). 
6

represent his or her wage-earning capacity.6

 Compensation payments are based on the wageearning capacity determination and it remains undisturbed until properly modified.7

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.8

 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.9

 

FECA’s procedure manual states that when the employing establishment has withdrawn a 

light-duty position which accommodated the claimant’s work restrictions and a formal wageearning capacity decision has been issued, the wage-earning capacity decision will remain in 

place.10 The claims examiner should, however, consult FECA Bulletin No. 09-05 (United States 

Postal National Reassessment Program Guidance) issued August 18, 2009 if the circumstances in 

the case indicate that the position in question may have been withdrawn (in whole or in part) as a 

result of NRP.11

ANALYSIS 

In its April 16, 2013 and March 25, 2014 decisions, OWCP denied modification of the 

February 1, 2000 LWEC determination. It found that the duties of the modified city letter carrier 

fairly and reasonably represented the claimant’s wage-earning capacity, and that appellant had 

no loss in wage-earning capacity. OWCP stated that she had worked in this full-time position 

over 60 days and had demonstrated her ability to perform the duties of the position. The record 

shows that appellant returned to work as a modified city letter carrier on or around April 10, 

1999 and worked at this position until May 24, 2010, when she was granted a temporary 

assignment as a 204B supervisor. Appellant worked in that position until May 2011, when the 

employing establishment advised her that there was no work available to her as a 204B 

supervisor and the job was withdrawn under NRP. 

Appellant subsequently filed a Form CA-2a notice of recurrence on May 20, 2011, 

requesting compensation for wage loss as of the date when the employing establishment advised 

her that there was no work available within her restrictions. OWCP properly found that 

appellant was not entitled to wage-loss compensation when she stopped work, as her wageearning capacity had previously been established. As noted above, when the employing 

establishment has withdrawn a light-duty assignment, which accommodated appellant’s work 

 6 See id. at § 8115. 

7 Id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000). 

8 Sharon C. Clement, 55 ECAB 552 (2004). 

9 T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity 

Decisions, Chapter 2.1501.7 (June 2013). 

11Id. 
7

restrictions and a formal wage-earning capacity decision has been issued, the decision will 

remain in place, 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 erroneous.12 

Appellant argued that the LWEC decision should be set aside because it was based on a 

position that was not bona fide and was therefore not suitable for an LWEC determination, 

pursuant to FECA Bulletin No. 09-05. This bulletin provides that the determination of whether a 

loss of wage-earning capacity was based on an actual bona fide position may be evinced by a job 

offer, SF-50, a classified position or formal position description, or the documentary evidence.13 

Based on these guidelines, OWCP properly found that the modified letter carrier job was bona 

fide and not a makeshift or odd-lot position. The March 25, 1999 job offer which appellant 

accepted contained a clear position description, identified the title of the job, a set schedule, and 

the duties of the position. The duties of the modified letter carrier were clearly outlined in the 

job offer. It was not a temporary position, as indicated on an SF-50 that officially reassigned 

appellant to work as a modified letter carrier as a permanent position. Appellant has provided no 

evidence that there was insufficient work for her to perform. There is no indication that she 

needed assistance from her supervisor or her coworkers to fulfill the assigned duties of her 

position, or that she worked in a self-directed manner or schedule. Appellant testified at the 

hearing that she performed the duties of modified letter carrier job for approximately 10 years, 

before she accepted a job as a 204B temporary supervisor. Although she testified that her 

manager allowed her to cease casing mail when she complained that particular activity 

aggravated her lower back, she provided no evidence to support this assertion and did not 

attempt to switch jobs until management offered her a supervisory position after 10 years. She 

continued to work in the same position until 2000, when the LWEC decision was put in place, 

and she continued to work in this position until 2010, when she accepted the assignment as a 

204B supervisor. OWCP has established that the position was a bona fide position. As the 

position had been filled after appellant left the position for the supervisory position, this evidence 

further corroborates that it was a bona fide position. 

Further, appellant has not provided sufficient medical evidence to establish that her 

condition worsened such that the LWEC should be modified. As noted above, she demonstrated 

the physical ability to perform the functions of the modified letter carrier position for 10 years. 

Appellant also demonstrated the ability to perform the duties of a temporary supervisory position 

for one year. The medical evidence in the record consists of reports from Dr. Ghanma and 

Dr. Hochman. 

Dr. Ghanma indicated in his March 8, 2013 report that appellant had not developed any 

radiculopathy as a result of her work injuries and opined that imaging studies failed to 

demonstrate nerve root compression to support radiculopathy based on her work injuries. He 

found that her symptoms of left leg and foot numbness were attributable to nonaccepted 

conditions, including cervical sprain, thoracic sprain, occipital contusion, parathoracic muscle 

 12 See supra note 8.

13 See also P.P., Docket No. 14-656 (issued December 18, 2014); T.P., Docket No. 14-1207 (issued 

November 7, 2014). 
8

strain, cervical, thoracic, and lumbar myofascitis, or aggravation of degenerative disc disease of 

the lumbar spine. 

In his August 2010 report, Dr. Hochman stated that appellant’s job duties as a 204B 

supervisor required her to push cages, push up tubs of mail, twist, and bend on a regular basis. 

This caused an exacerbation of her low back condition. He stated that a May 2011 MRI scan 

showed facet pathology at the L3-5 levels and opined that appellant sustained a permanent 

aggravation of lumbar/thoracic degenerative disc disease as a result of her work activities while 

working as a 204B supervisor. Dr. Hochman’s opinion on causal relationship is of limited 

probative value in that he did not provide adequate medical rationale in support of his 

conclusions.14 He did not describe how appellant’s work duties as a supervisor would have been 

competent to cause the alleged aggravation of her low back conditions. It is unclear if 

Dr. Hochman had an accurate history as he did not indicate an awareness that appellant had 

stopped working in that supervisory position as a result of NRP.15 Appellant therefore failed to 

show that she sustained a material change in her accepted work-related conditions and, as noted 

above, the evidence does not support that her May 2010 transfer to supervisor or her May 2011 

work stoppage was due to a worsening of her physical condition or an increase of disability 

related to an accepted work-related condition. 

Accordingly, the Board finds that modification of the February 1, 2000 LWEC decision 

is not warranted. The evidence of record fails to support that the LWEC was in error, the 

claimant was vocationally rehabilitated, or that there was material change in the nature and 

extent of an accepted, work-related condition. Appellant is not entitled to wage-loss 

compensation effective May 20, 2011, or thereafter, when the employing establishment withdrew 

her job. For these reasons, she has not shown that OWCP’s February 1, 2000 wage-earning 

capacity determination should be modified. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to modify OWCP’s 

February 1, 2000 wage-earning capacity determination. 

 14 William C. Thomas, 45 ECAB 591 (1994). 

15 See Geraldine H. Johnson, 44 ECAB 745 (1993). 
9

ORDER 

IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board