United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer 

__________________________________________ 

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Docket No. 14-348 

Issued: May 2, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 2, 2013 appellant filed a timely appeal of a June 18, 2013 decision of the 

Office of Workers’ Compensation Programs (OWCP), finding that her request for 

reconsideration was untimely and failed to show clear evidence of error. Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA), the Board has jurisdiction over the June 18, 2013 

decision. The Board does not have jurisdiction over a decision on the merits of the claim.2

 

ISSUE 

The issue is whether OWCP properly found appellant had filed an untimely application 

for reconsideration that did not show clear evidence of error by OWCP. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The last merit decision was an OWCP decision dated May 19, 1999 with respect to a claim for total disability 

commencing May 16, 1998. For OWCP decisions issued prior to November 19, 2008, a claimant had one year to 

file an appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after November 19, 

2008, a claimant has 180 days to file an appeal with the Board. 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

On June 1, 1992 appellant, then a 39-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on May 27, 1992 she sustained back and leg injuries when she was 

struck by a cart while in the performance of duty. OWCP accepted a low back strain and a 

herniated L4-5 disc. By decision dated April 25, 1996, it determined that actual earnings in a 

part-time mail handler position effective January 20, 1996 represented appellant’s wage-earning 

capacity. Appellant’s compensation was reduced to reflect her wage-earning capacity. 

In a decision dated July 9, 1996, OWCP denied appellant’s claim for a recurrence of 

disability commencing March 31, 1996. By decision dated December 31, 1998, it denied her 

claim for a recurrence of disability commencing May 16, 1998. In a decision dated May 19, 

1999, OWCP denied modification of the December 31, 1998 decision. By decision dated 

February 25, 2000, it denied merit review of the claim. The record also contains an August 26, 

2008 decision denying a claim for a hearing. 

According to the evidence of record, appellant continued to receive compensation based 

on a loss of wage-earning capacity through January 29, 2009. She then began to receive 

compensation on the periodic rolls for total disability. 

By letter dated September 13, 2011, appellant indicated that she was confused as to how 

her wage-earning capacity had been calculated. She stated that her condition had worsened since 

1997 and she continued to have problems in the back, legs, neck, shoulders and arms. Appellant 

asked for assistance in retracing her work history, comparing it with the physician’s notes and 

being reimbursed for time she did not receive proper compensation. By letter dated April 19, 

2012, OWCP advised her that the April 25, 1996 wage-earning capacity determination explained 

the reduction in compensation. 

In a letter to OWCP dated June 18, 2012, appellant again discussed her claim and stated 

that from 2000 to 2007 her case was “in limbo” with OWCP. She stated that she did not 

understand how her compensation was computed. Appellant discussed the medical evidence 

with respect to disability for work. In a CA-110 (memorandum of telephone call) dated 

October 19, 2012, OWCP indicated that she was trying to appeal the April 25, 1996 decision. 

By letter dated February 18, 2013, appellant again discussed her claim and stated that she had not 

been properly compensated from 2000 to 2007. A CA-110 from an April 9, 2013 telephone call 

stated that appellant was “appealing the loss of wage-earning capacity decision.” 

By letter dated April 17, 2013, appellant stated, “I am appealing the decision from 1996.” 

In a decision dated June 18, 2013, OWCP found that appellant had submitted an untimely 

application for reconsideration of either the April 25 or July 9, 1996 OWCP decisions. It found 

that her statement failed to indicate which decision she was appealing and failed to show how 

OWCP’s decisions were incorrect. 
3

LEGAL PRECEDENT 

It is well established that either a claimant or OWCP may seek to modify a formal loss of 

wage-earning capacity determination. A request for modification of the loss of wage-earning 

capacity is not a request for a review under 5 U.S.C. § 8128(a), even if the term reconsideration 

may be used.3

 There is no time limitation to request a modification of a wage-earning capacity 

determination.4

ANALYSIS 

In the present case, appellant submitted a letter dated April 17, 2013 stating that she was 

appealing a 1996 decision. Although the June 18, 2013 OWCP decision refers to a failure to 

indicate which 1996 decision, it is evident from the record that she was referring to the April 25, 

1996 wage-earning capacity decision. The record contains correspondence from appellant as 

well as telephone memorandum that specifically indicated that OWCP was aware that she 

intended to pursue the wage-earning capacity issue. 

Since the April 25, 1996 decision was a wage-earning capacity determination, the issue is 

whether appellant was requesting modification of the determination. As noted above, a request 

for a modification of a wage-earning capacity determination is not subject to a one-year time 

limitation. In reviewing appellant’s correspondence since September 13, 2011, the Board finds 

that she was requesting modification of the April 25, 1996 wage-earning capacity determination.5 

In letters dated September 13, 2011, June 18, 2012, and February 18, 2013, appellant discussed 

the medical evidence prior to 2009 and referred to the medical evidence and periods of total 

disability. This represents new argument on the issue of modification that requires OWCP to 

issue a proper decision on the merits of the modification issue.6

The Board finds the evidence of record establishes that appellant had requested 

modification of an April 25, 1996 OWCP wage-earning capacity determination. OWCP 

improperly characterized her request for modification as an untimely application for 

reconsideration. The case will be remanded for a proper merit decision on the modification 

issue. 

 3 M.M., Docket No. 13-1832 (issued January 10, 2014); Daryl Peoples, Docket No. 05-462 (issued July 19, 

2005); Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004). 

4 Id. 

5

 The wage-earning capacity decision was modified in January 2009, but appellant may seek modification prior to 

that date. 

6

 If a claimant simply reiterates prior arguments considered in a previous merit decision on modification of a 

wage-earning capacity determination, then OWCP may properly determine that an untimely application for 

reconsideration has been submitted. See E.T., Docket No. 13-1299 (issued October 29, 2013). 
4

CONCLUSION 

The Board finds that appellant has requested modification of the April 25, 1996 decision 

prior to January 2009, and the case is remanded for an appropriate decision. 

ORDER 

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

Compensation Programs dated June 18, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: May 2, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board