United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0129 

Issued: December 28, 2015 

Appearances: Case Submitted on the Record

Gregory A. Hall, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 25, 2014 appellant, through counsel, filed a timely appeal from a May 1, 

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 OWCP properly found that appellant’s actual part-time earnings as a 

modified letter carrier beginning July 22, 2004 fairly and reasonably represented his wageearning capacity. 

FACTUAL HISTORY 

OWCP accepted that on January 25, 1991 appellant, then a 34-year-old letter carrier, 

sustained herniated L4-5 and L5-S1 discs. The claim was later expanded to include a 

 1

 5 U.S.C. § 8101 et seq. 
2

consequential pain disorder and major depressive disorder. At the time of his January 25, 1991 

work injury, appellant was working on a full-time basis for the employing establishment.2

In an August 8, 2003 report, Dr. Michael Shrift, a Board-certified psychiatrist serving as 

an OWCP referral physician, opined that appellant could work eight hours per day, five days per 

week. In a December 2, 2003 report, Dr. Jeffrey Hrutkay, a Board-certified orthopedic surgeon 

serving as an impartial medical specialist, opined that appellant could work eight hours per day, 

five days per week. 

On July 22, 2004 appellant returned to a light-duty work as a modified letter carrier for 

the employing establishment, working 4 hours per day for a total of 20 hours per week. He 

stopped work again on May 20, 2010 when the employing establishment withdrew his 

assignment under the National Reassessment Process. 

In an August 6, 2010 decision, OWCP reduced appellant’s compensation based on its 

determination that his actual earnings in the modified letter carrier position fairly and reasonably 

represented his wage-earning capacity.3 Appellant requested a hearing. In a March 16, 2011 

decision, an OWCP hearing representative affirmed OWCP’s August 6, 2010 decision. 

In a June 12, 2012 order,4 the Board reversed the March 16, 2011 hearing 

representative’s decision. The Board found that OWCP impermissibly based its wage-earning 

capacity determination on appellant’s actual wages in the part-time position of modified letter 

carrier despite the fact that he held a full-time position at the time of his injury. 

Beginning June 7, 2013, appellant filed claims for wage-loss benefits for the balance of 

his work schedule not covered under the partial wage-loss payments he was receiving on the 

periodic rolls. 

In an August 7, 2013 decision, OWCP determined that appellant’s wage-earning 

capacity, effective July 22, 2004, was fairly and reasonably represented by his actual wages in 

the part-time position of modified letter carrier. It found that the modified carrier position to 

which he returned on July 22, 2004 was not makeshift work and was within his stable, 

established work restrictions that limited him to part-time work. OWCP noted that, effective 

 2

 Appellant’s regular work schedule was 6:30 a.m. to 3:00 p.m., Tuesday through Saturday. 

3

 In a September 22, 2004 decision, OWCP reduced appellant’s compensation based on its determination that his 

actual earnings as a modified letter carrier fairly and reasonably represented his wage-earning capacity. In a June 8, 

2006 decision, the Board set aside OWCP’s September 22, 2004 decision noting that OWCP had not adequately 

explained the basis for its wage-earning capacity determination. Docket No. 05-1901 (issued June 8, 2006). 

4

 Docket No. 11-2063 (issued June 12, 2012). 
3

June 4, 2013, OWCP changed its procedures to allow, in some circumstances, for basing wageearning capacity on actual wages in a part-time position when the date-of-injury position was a 

full-time position.5

Appellant requested an oral telephonic hearing with an OWCP hearing representative. 

During the March 20, 2014 hearing, counsel argued that OWCP improperly applied the new 

OWCP procedures on a retroactive basis. 

By decision dated May 1, 2014, OWCP’s hearing representative affirmed OWCP’s 

August 7, 2013 wage-earning capacity determination noting that it was appropriate to apply the 

new OWCP procedures on a retroactive basis. The hearing representative stated, “I do not find 

the argument that the recent updates in the [Federal (FECA) Procedure Manual] violate any 

principal of ex post facto, as these changes were explicitly made to clarify interpretation of 

[FECA] -- not to change any law.” 

LEGAL PRECEDENT 

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

injury sustained while in the performance of his or her duty.6 Disability means the incapacity, 

because of an employment injury, to earn the wages the employee was receiving at the time of 

injury. It may be partial or total.7 

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open 

labor market under normal employment conditions.8

 The wage-earning capacity of an employee 

is determined by the employee’s actual earnings if the employee’s actual earnings fairly and 

reasonably represent his or her wage-earning capacity.9

In the case of O.V.,10 the Board found that OWCP abused its discretion when it 

determined that the claimant’s actual earnings in part-time reemployment fairly and reasonably 

 5 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Earnings, Chapter 2.815.5c (June 2013); FECA Transmittal No. 13-09 (issued June 4, 2013). Chapter 

2.815.5c(1)(b)(2) provides: 

“A part-time position may form the basis for a [wage-earning capacity] for an employee who was 

a full-time employee on the [date of injury] if his/her stable, established work restrictions limit 

him/her to part-time work. This policy change is consistent with the statutory purpose of 5 U.S.C. 

§ 8115 which anticipates [loss of wage-earning capacity] determinations for partial disability 

based on actual earnings where those earnings fairly and reasonably represent the injured 

employee’s [wage-earning capacity]. 

6

 5 U.S.C. § 8102(a). 

7

 20 C.F.R. § 10.5(f). 

8 Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982). 

9

 5 U.S.C. § 8115(a). 

10 Docket No. 11-98 (issued September 30, 2011). 
4

represented his capacity to earn wages in the open labor market. The Board explained that 

OWCP procedures prohibited a loss of wage-earning capacity determination based on part-time 

reemployment unless the claimant was a part-time worker at the time of injury. 

ANALYSIS 

In an August 6, 2010 decision, OWCP reduced appellant’s compensation based on its 

determination that his actual earnings in the modified letter carrier position fairly and reasonably 

represented his wage-earning capacity. In a March 16, 2011 decision, an OWCP hearing 

representative affirmed OWCP’s August 6, 2010 decision. In a June 12, 2012 order,11 the Board 

reversed the March 16, 2011 hearing representative’s decision. The Board found that OWCP 

impermissibly based its wage-earning capacity determination on appellant’s actual wages in the 

part-time position of modified letter carrier despite the fact that he held a full-time position at the 

time of his injury. In August 7, 2013 and May 1, 2014 decisions, OWCP determined that 

appellant’s wage-earning capacity effective July 22, 2004 was fairly and reasonably represented 

by his actual wages in the part-time position of modified letter carrier. OWCP noted that, 

effective June 4, 2013, it had changed its procedures to allow for basing wage-earning capacity 

on actual wages in a part-time position when the date-of-injury position was a full-time 

position.12

The Board has final authority to determine questions of fact and law. The Board’s 

determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon 

by the Director of OWCP. Otherwise, there could be no finality of decisions and the whole 

procedure would be nullified and questions would remain moot.13 

Section 501.6(c)-(d) of OWCP’s implementing federal regulations provide that the 

decisions and orders of the Board are final as to the subject matter appealed, and such decisions 

and orders are not subject to review, except by the Board. The decisions and orders of the Board 

will be final upon the expiration of 30 days from the date of issuance unless the Board has fixed 

a different period of time therein. Following the expiration of that time, the Board no longer 

retains jurisdiction over the appeal unless a timely petition for reconsideration is submitted and 

granted.14 Section 501.7 of OWCP’s implementing federal regulations provide that appellant or 

the Director may file a petition for reconsideration of a decision or order issued by the Board 

within 30 days of the date of issuance, unless another time period is specified in the Board’s 

order.15

 11 Docket No. 11-2063 (issued June 12, 2012). 

12 See supra note 5. 

13 See L.C., Docket No. 09-1816 (issued March 17, 2010); Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); 

Anthony Greco, 3 ECAB 84, 85 (1949). 

14 20 C.F.R. § 501.6(c)-(d). 

15 Id. at § 501.7. The Board notes that neither appellant nor the Director of OWCP filed a petition for 

reconsideration in the present case. 
5

Appellant’s wage-earning capacity effective July 22, 2004 has previously been 

considered by the Board in its June 12, 2012 order.16 The assertions advanced by OWCP 

thereafter were previously considered by the Board in its June 12, 2012 order. OWCP 

procedures that were in effect at the time of OWCP’s original wage-earning capacity 

determination prohibited a loss of wage-earning determination based on part-time reemployment 

where the claimant was a full-time worker at the time of injury.17 In OWCP’s August 7, 2013 

and May 1, 2014 decisions, it essentially restated the wage-earning capacity findings of its 

March 16, 2011 decision, i.e., the findings of a decision that the Board had reversed in its 

June 12, 2012 order. OWCP did not submit any additional evidence pertinent to appellant’s 

wage-earning capacity effective July 22, 2004. It noted that, effective June 4, 2013, it changed 

its procedures to allow, in some circumstances, for basing wage-earning capacity on actual 

wages in a part-time position when the date-of-injury position was a full-time position. 

However, OWCP did not explain how the new OWCP procedures or FECA Transmittal No. 13-

09, which explained the new procedures allowed for retroactive application of the procedures.18 

In a May 1, 2014 decision, an OWCP hearing representative wrote, “I do not find the argument 

that the recent updates in the [Federal (FECA) Procedure Manual] violate any principal of ex 

post facto, as these changes were explicitly made to clarify interpretation of [FECA] -- not to 

change any law.” Chapter 2.815.5c(1)(b)(2) of the new procedures provides that OWCP’s policy 

change is consistent with the statutory purpose of 5 U.S.C. § 8115 which anticipates loss of 

wage-earning capacity determinations for partial disability based on actual earnings where those 

earnings fairly and reasonably represent the injured employee’s wage-earning capacity.19 The 

Board notes, however, that OWCP did not make clear its intention to retroactively apply the new 

procedures. Therefore, OWCP may not retroactively apply the new procedures to determine 

appellant’s wage-earning capacity effective July 22, 2014.20

In the present case, the Board issued a June 12, 2012 order finding that OWCP 

impermissibly based its wage-earning capacity determination effective July 22, 2004 on 

appellant’s actual wages in a part-time position. The decision became the law of the case and, 

absent a clear basis for retroactive application of the new OWCP procedures, remains the law of 

the case. As noted above, the Board’s determinations are binding upon OWCP and must, of 

necessity, be accepted and acted upon by the Director of OWCP.21

 16 Docket No. 11-2063 (issued June 12, 2012). 

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

Capacity, Chapter 2.814.7a (July 1997). 

18 See Carlotta J. Quackenbush, Docket No. 83-2034 (issued October 16, 1984) (allowing for retroactive 

application of OWCP procedures when a FECA Bulletin explicitly noted that such procedures should be applied to 

cases already decided in which all benefits were terminated). 

19 See supra note 9. 

20 The facts of the present case can be distinguished from those of Quackenbush, where the Board allowed 

retroactive application of OWCP procedures, because the procedures discussed in Quackenbush explicitly provided 

for retroactive application. See supra note 18. 

21 See supra note 13. 
6

Accordingly, the Board will reverse OWCP’s May 1, 2014 decision and remand the case 

for a proper adjudication of appellant’s claim for wage-loss compensation. 

CONCLUSION 

The Board finds that OWCP improperly found that appellant’s actual part-time earnings 

as a modified letter carrier beginning July 22, 2004 fairly and reasonably represented his wageearning capacity. 

ORDER 

IT IS HEREBY ORDERED THAT the May 1, 2014 decision of the Office of Workers’ 

Compensation Programs is reversed. The case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.22

Issued: December 28, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 22 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.