United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Aumsville, OR, Employer 

__________________________________________ 

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Docket No. 14-999 

Issued: October 27, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 25, 2014 appellant filed a timely appeal from a September 30, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for 

modification of OWCP’s wage-earning capacity determination. 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 establish that modification of 

OWCP’s wage-earning capacity decision was warranted. 

FACTUAL HISTORY 

This case has previous been before the Board. By decision dated July 1, 2013, the Board 

found that OWCP improperly denied appellant’s application for reconsideration without merit 

 1

 5 U.S.C. § 8101 et seq. 
2

review of the claim.2 The Board found that appellant’s March 5, 2012 request for 

reconsideration was a request for modification of OWCP’s May 19, 2011 wage-earning capacity 

decision, which determined that her actual earnings as a limited-duty rural carrier as of 

January 8, 2011 fairly and reasonably represented her wage-earning capacity. The Board set 

aside OWCP’s May 31, 2012 decision and remanded the case for further review. The facts of 

the case as set forth in the Board’s prior decision are incorporated by reference. The relevant 

facts are as follows. 

On February 3, 2003 appellant, then a 41-year-old rural mail carrier, filed an occupational 

disease claim for a right shoulder condition which she attributed to her rural carrier duties. Her 

regular work hours were from 7:00 a.m. to 16:00 p.m. The employing establishment noted that 

appellant was working modified duty of not more than eight hours per day, five days a week. 

OWCP accepted the claim for right shoulder strain and paid all appropriate periods of 

compensation when limited duty within appellant’s restrictions was not available. It also 

accepted a March 1, 2008 recurrence of disability due to a right shoulder strain and impingement 

and a consequential left shoulder adhesive capsulitis. Compensation was paid for total disability 

until November 24, 2008, when appellant returned to a limited-duty position for four hours a 

day. OWCP thereafter paid wage-loss compensation for partial disability. From August 3, 2009 

to February 20, 2010, appellant was on a detailed assignment as an examiner. She returned to a 

limited-duty rural carrier position on March 8, 2010, working four hours a day. Appellant 

stopped work on December 8, 2010 as no work within her restrictions were available. 

On December 30, 2010 the employing establishment offered appellant a modified 

assignment of limited-duty rural carrier, which she accepted under protest. The position required 

appellant to case and associated office duties of city auxiliary route 1, with an average time spent 

of 1:15; and deliver walk out route 1, approximately four to five miles, with an average time 

spent of four hours per day. The physical requirements of the position included reaching up to 

the shoulder level and push/pull/lift up to 20 pounds. Appellant returned to work on January 8, 

2011, but refused to perform the delivery portion of the position, asserting that the use of a utility 

cart exceeded her work restrictions. She filed CA-7 claim forms for time lost from work from 

January 15, 2011 and continuing. Appellant noted on the CA-7 forms the intermittent hours she 

had worked and she also noted that work was unavailable for the remaining hours or that the 

work that was available was not within her medical restrictions. 

In a March 8, 2011 letter, OWCP advised appellant that the position of limited-duty rural 

carrier was suitable to her work capabilities and was available to her. It informed her that, upon 

performance of the position in its entirety, she would be paid compensation based on the 

difference, if any, between the pay of the offered position and the pay of her date-of-injury 

position. OWCP noted that appellant submitted documentation to support that the physical 

requirements of the job offer exceeded her physician’s restrictions; however, the employing 

establishment submitted sufficient documentation refuting her contentions that the push cart 

requirements were not within her permanent restrictions. Appellant was advised of the 

provisions of 5 U.S.C. § 8106(c)(2) with respect to refusal of suitable work and afforded 30 days 

to either accept and perform the position or provide an explanation for refusal. 

 2

 Docket No. 13-338 (issued July 1, 2013). 
3

By decision dated March 8, 2011, OWCP denied payment of wage-loss compensation 

from January 15 to 28, 2011 and ongoing, greater than that previously paid, which was based on 

pay appellant would have received had she worked all the hours available to her in her limitedduty position. It further found that appellant failed to establish that she was medically unable to 

work during the additional hours claimed due to her accepted work injury or provide evidence 

that she exceeded her permanent restrictions. 

On March 14, 2011 appellant began performing the full duties of her limited-duty 

position, but continued to assert that such duties exceeded her work restrictions. 

In a Form CA-7 dated April 18, 2011, appellant noted that an employing establishment 

representative from the National Reassessment Program (NRP) team inspected her work duties 

regarding the push cart. She related that she was told that she would be given a new cart and 

tools to help her deliver her mail above her shoulder level. Appellant had not yet received these 

tools. 

By decision dated May 19, 2011, OWCP found appellant’s employment as a limited-duty 

rural carrier as of January 8, 2011 fairly and reasonably represented her wage-earning capacity. 

It also determined her compensation based on the wage-earning capacity determination. 

On June 2, 2011 appellant requested a review of the written record of the May 19, 2011 

decision. She alleged that the modified rural carrier position was temporary and that she had 

been told that the job offer would be reassessed pursuant to NRP process. Appellant also alleged 

that the position was not a reasonable accommodation and that it was not within her medical 

restrictions. In support of her request, she submitted a statement and several supporting 

documents. 

By decision dated October 3, 2011, OWCP’s hearing representative affirmed the May 19, 

2011 wage-earning capacity decision. The hearing representative found that, while appellant 

contended that the position was temporary, the employing establishment stated that the position 

was part of NRP process and was indefinite in duration. The hearing representative also stated 

the fact that the employing establishment was continuing to work with appellant on the issue of 

reasonable accommodation did not establish that the job was not suitable. 

On March 5, 2012 appellant requested reconsideration of the March 8, 2011 decision 

which denied her compensation for intermittent time loss during the period January 15 through 

28, 2011 and ongoing. In her letter, she argued that her limited-duty position was not suitable 

and exceeded her work restrictions. Appellant argued that she had no choice but to report for 

duty and perform the job in its entirety, even though it was outside her physical restrictions. She 

stated that the position was aggravating her hip condition, which was noted by her physician in 

September 2011. 

In a September 27, 2011 report, Dr. Christopher J. Rae, a Board-certified family 

practitioner, advised that appellant’s current job assignment aggravated a right hip condition. He 

requested that she be accommodated with a position that does not require repetitive bending at 

the waist. 
4

By decision dated May 31, 2012, OWCP denied appellant’s reconsideration request on 

the grounds the evidence submitted was either previously considered or not relevant. 

On remand from the Board, OWCP received additional medical evidence with a 

September 4, 2013 statement from appellant. Appellant contended that the wage-earning 

capacity decision was issued in error as her position exceeded her work restrictions, she had new 

medical conditions that arose since her original injury and she was rated for and performing a 

part-time job but was a full-time employee at the time of injury. 

In a May 20, 2013 report, Dr. John P. Seymour, Board-certified in occupational 

medicine, advised that appellant had pain and tightness in her cervical spine, tenderness and 

tightness in her right trapezial region and full active shoulder range of motion bilaterally. He 

noted that appellant also had right hip and knee arthritis and diabetes and permanent restrictions 

of no commuting over 20 miles, no reaching above shoulder, limit pushing, pulling and lifting to 

20 pounds due to right shoulder injury. 

In a July 12, 2013 report, Dr. Beata Anasz-Kopecka, a Board-certified internist, noted 

that appellant has shoulder pain, major depression, diabetes and female cystocele. She obtained 

a history that appellant’s shoulder pain was worse with sorting the mail and that she had shoulder 

bruising at night. Appellant’s major depression was worsened by work environment, stress pain 

and difficulty managing with work environment and requirements which were a problem due to 

her diabetes, bladder problems and musculoskeletal pain. 

By decision dated September 30, 2013, OWCP found that appellant did not establish that 

the May 19, 2011 wage-earning capacity determination should be modified. Appellant did not 

establish that the original wage-earning capacity determination was in error or submit probative 

medical evidence showing that she could no longer perform the light-duty rural carrier duties due 

to her accepted injury-related conditions. 

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.3

 OWCP’s procedure manual provides that, if a 

formal loss of wage-earning capacity decision has been issued, the rating should be left in place 

unless the claimant requests resumption of compensation for total wage loss. In this instance the 

claims examiner will need to evaluate the request according to the customary criteria for 

modifying a formal loss of wage-earning capacity.4 

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 

 3 Katherine T. Kreger, 55 ECAB 633 (2004). 

4

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

Chapter 2.814.9(a) (December 1995). 
5

the injury-related condition, the employee has been retrained or otherwise vocationally 

rehabilitated, or the original determination was, in fact, erroneous.5

 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.6 The 

Board has held that a new injury does not constitute a material change in the nature and extent of 

the original injury-related condition such that a wage-earning capacity determination should be 

modified.7

 

Chapter 2.814.11 of the procedure manual contains provisions regarding the modification 

of a formal loss of wage-earning capacity. The relevant part provides that a formal loss of wageearning capacity will be modified when: (1) the original rating was in error; (2) the claimant’s 

medical condition has changed; or (3) the claimant has been vocationally rehabilitated. OWCP 

procedures further provide that the party seeking modification of a formal loss of wage-earning 

capacity decision has the burden to prove that one of these criteria has been met.8

 

Section 8115(a) of FECA provides that the wage-earning capacity of an employee is 

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

represent his or her wage-earning capacity.9

 The Board has held, generally, that 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.10 However, a wage-earning capacity may not be based on an 

odd-lot or makeshift position designed for an employee’s particular needs or a position that is 

seasonal in an area where year-round employment is available.11 Wage-earning capacity may 

only be based on a temporary or part-time position if the position held by the employee at the 

time of injury was a temporary or part-time position.12 OWCP procedures direct that a wage-

 5 Stanley B. Plotkin, 51 ECAB 700 (2000). 

6 Id. 

7 M.E., Docket No. 07-2306 (issued March 24, 2008). 

8 See Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.814.11 (June 1996). 

9 Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is 

defined in the implementing federal regulations as the incapacity, because of an employment injury, to earn the 

wages the employee was receiving at the time of injury. (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is 

determined that the actual wages of a given position represent an employee’s wage-earning capacity, OWCP applies 

the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in the 

employee’s compensation. 5 U.S.C. § 8115(a). 

10 See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997). In Jeffery T. Hunter, 52 

ECAB 503 (2001), the Board found that the duties of regular employment are covered by a specific job 

classification and such duties would have been performed by another employee if the employee did not perform 

them. The test is not whether the tasks that the employee performs would have been done by someone else, but 

instead whether he occupied a regular position that would have been performed by another employee. 

11 Federal (FECA) Procedure Manual, supra note 8. 

12 See id. at Chapter 2.814.7c (December 1993). 
6

earning capacity determination based on actual wages be made following 60 days of 

employment.13

ANALYSIS 

OWCP accepted appellant’s claim for right shoulder strain and consequential left 

shoulder adhesive capsulitis condition and paid appropriate benefits. In a May 19, 2011 

decision, OWCP adjusted her monetary compensation finding that her actual earnings as a 

limited-duty rural carrier as of January 8, 2011 fairly and reasonably represented her 

wage-earning capacity. OWCP’s hearing representative affirmed this decision on 

October 3, 2011. Appellant requested modification of OWCP’s May 19, 2011 wage-earning 

capacity determination, but it was denied. 

The record reflects that appellant’s date-of-injury job as a rural carrier was a full-time 

position. However, the actual earnings in this case were based on a part-time job of a light-duty 

rural carrier. Appellant worked approximately five hours per day in this position five days a 

week. OWCP’s procedure manual provides, in situations where an employee is working full 

time when injured and is reemployed in a part-time position, a formal wage-earning capacity 

determination is generally not appropriate.14 The Board has held that OWCP must address the 

issue and address why a part-time position is suitable for a wage-earning capacity determination 

based on the specific circumstances of the case.15

OWCP did not address this issue in the 2011 wage-earning capacity decision. It made a 

finding that appellant’s actual earnings fairly and reasonably represented her wage-earning 

capacity. OWCP did not address the part-time position or the fact that appellant was not a parttime employee when she sustained injury. The Board finds that OWCP failed to meet its burden 

of proof in determining appellant’s wage-earning capacity effective May 19, 2011 based on her 

part-time work as a limited-duty rural carrier. 

OWCP has not shown that appellant’s wages as a limited-duty rural carrier fairly and 

reasonably represent her wage-earning capacity and it improperly adjusted her compensation 

based on this wage-earning capacity determination. Therefore, appellant has shown that 

OWCP’s original determination with regard to her wage-earning capacity was erroneous and that 

modification of the determination is warranted on this basis.16 

 13 Connie L. Potratz-Watson, 56 ECAB 316 (2005); K.N., Docket No. 13-1020 (issued January 30, 2014); see 

also N.C., Docket No. 14-370 (issued May 15, 2014) OWCP failed to follow the procedure manual when it 

erroneously relied on her part-time employment as a basis for finding that her actual earnings fairly and reasonably 

represented her wage-earning capacity. 

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

Chapter 2.814.7a (July 1997). 

15 Connie L. Potratz-Watson, supra note 13. 

16 See Stanley B. Plotkin, 51 ECAB 700 (2000). 
7

CONCLUSION 

The Board finds that appellant met her burden of proof to modify OWCP’s May 19, 2011 

wage-earning capacity determination.17 

ORDER 

IT IS HEREBY ORDERED THAT the September 30, 2013 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: October 27, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Due to the disposition of this case, the remainder of appellant’s arguments before OWCP and on appeal will not 

be addressed.