United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Spokane, WA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-4 

Issued: February 5, 2015 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 1, 2014 appellant, through her representative, filed a timely appeal from the 

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 denied appellant’s request for a hearing under section 

8124 of FECA. 

FACTUAL HISTORY 

On July 9, 1998 appellant, then a 42-year-old distribution clerk, sustained a left hand 

crush injury, left wrist abrasion, right hand laceration, and right hand abrasion when her hands 

were caught in a conveyor belt while clearing a mail jam. OWCP also accepted that she 

 1

 5 U.S.C. §§ 8101-8193. 
2

sustained an anxiety reaction, major depression, and post-traumatic stress syndrome due to the 

July 9, 1998 injury. Appellant stopped work on July 9, 1998 and returned to limited-duty work 

on July 20, 1998; she stopped work again on July 21, 1998.2 She later claimed that she sustained 

a left shoulder condition and a neurological condition of the left upper extremity due to her 

July 9, 1998 employment injury. By decision dated February 4, 2002, OWCP denied appellant’s 

claim due to her failure to submit sufficient medical evidence in support thereof. In a March 7, 

2003 decision,3 the Board affirmed its February 4, 2002 decision. 

On December 23, 2003 appellant returned to full-time work in the position of general 

clerk for the employing establishment. The position involved responding to customer telephone 

calls, engaging in general filing, gathering mail trays, and performing other clerical or 

administrative duties. 

In a March 4, 2004 decision, OWCP reduced appellant’s compensation effective 

December 28, 2003 based on its determination that her wage-earning capacity was represented 

by her actual wages as general clerk. It noted that she had recently been employed as a general 

clerk with wages of $35,374.00 per year. Since appellant had demonstrated the ability to 

perform the duties of a general clerk for 60 days or more, the position was considered suitable to 

her partially disabled condition.4

By decision dated April 20, 2004, OWCP rescinded its March 4, 2004 wage-loss 

determination due to the fact that it used an incorrect pay rate in making this determination. It 

noted that it had improperly based the pay rate on wages of $35,374.00 per year. 

In an August 18, 2004 decision, OWCP reduced appellant’s compensation to zero 

effective that date based on its determination that her wage-earning capacity was represented by 

her actual wages as general clerk. It noted that her actual earnings exceeded the current wages of 

the job she held when injured.5 Since appellant had demonstrated the ability to perform the 

duties of a general clerk for 60 days or more, the position was considered suitable to her partially 

disabled condition and it fairly and reasonably represented her wage-earning capacity. The 

decision did not affect coverage of her medical benefits. 

In a September 8, 2010 Form CA-2, appellant claimed that she sustained a recurrence of 

disability due to her July 9, 1998 work injury. OWCP developed this claim as a request for 

modification of its August 18, 2004 wage-earning capacity determination. In a November 17, 

2010 decision, it found that appellant had not met her burden of proof to modify its August 18, 

2004 wage-earning capacity determination because she had not shown that there was a material 

change in the nature and extent of her injury-related condition, that she has been retrained or 

otherwise vocationally rehabilitated, or that the original determination was, in fact, erroneous. 

 2

 Appellant began to receive compensation on the periodic rolls in June 2002. 

3

 Docket No. 02-874 (issued March 7, 2003). 

4

 OWCP indicated that appellant’s new compensation payment would be $79.00 every four weeks. 

5

 OWCP stated that appellant had wages of $716.15 per week. 
3

In a July 25, 2013 letter, postmarked August 30, 2013 and received by OWCP’s Branch 

of Hearings and Review on September 6, 2013, appellant indicated that she was requesting 

modification of OWCP’s August 18, 2004 wage-earning capacity determination. She argued that 

her request for modification was justified because OWCP’s original wage-earning capacity 

determination was improperly based on an odd-lot or makeshift job. Appellant cited Board 

precedent and argued that the general clerk position she returned to in December 2003 was not a 

bona fide position. She asserted that the position was designed for her particular medical needs 

and was not a regular position of a type readily available to other postal workers.6 Appellant also 

submitted an undated priority for assignment worksheet and medical evidence dated between 

May and August 2013. 

In a May 1, 2014 decision, OWCP denied appellant’s claim by interpreting her July 25, 

2013 letter as a request for a hearing under section 8124(b)(1) of FECA.7 It determined that her 

request was untimely because it was not filed within 30 days of its August 18, 2004 wage-earning 

capacity determination and therefore she was not entitled to a hearing as a matter of right. OWCP 

further considered appellant’s request in its discretion and noted that her claim could be equally 

well addressed by requesting reconsideration and submitting evidence supporting modification of 

its August 18, 2004 wage-earning modification determination. 

LEGAL PRECEDENT 

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

wage-earning capacity determination. 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 modification.9 There is no time limit for 

appellant to submit a request for modification of a wage-earning capacity determination.10

ANALYSIS 

OWCP considered appellant’s July 25, 2013 letter to be a request for a hearing under 

5 U.S.C. § 8124(b)(1) in connection with its prior wage-earning capacity determination dated 

August 18, 2004. It determined that her request was untimely and therefore she was not entitled to 

a hearing as a matter of right.11 In her July 25, 2013 letter, appellant clearly indicated that she 

 6

 Appellant did not specifically indicate in the letter that she wished to have a hearing in connection with 

OWCP’s August 18, 2004 wage-earning capacity determination. 

7 See 5 U.S.C. § 8124(b)(1). 

8 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). 

9 Darletha Coleman, 55 ECAB 143 (2003). 

10 W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003). 

11 OWCP further considered appellant’s request in its discretion and noted that her claim could equally well be 

addressed by requesting reconsideration and submitting evidence supporting modification of its August 18, 2004 

wage-earning modification determination. 
4

was requesting modification of OWCP’s August 18, 2004 wage-earning capacity determination. 

She asserted in her letter that OWCP erred in its August 18, 2004 wage-earning capacity 

determination because the general clerk position she returned to in December 2003 could not 

provide a valid basis for rating her wage-earning capacity. Appellant argued that the general 

clerk position was not a bona fide position, but rather was an odd-lot or makeshift position 

designed for her specific needs.12 

The Board finds that appellant’s July 25, 2013 letter is sufficient to request modification 

of OWCP’s August 18, 2004 wage-earning capacity determination. Appellant’s July 25, 2013 

letter was not a request for a hearing under section 8128(b)(1) of FECA and OWCP improperly 

failed to acknowledge the letter as a request for modification of its prior wage-earning capacity 

determination.13 

As appellant has requested modification of OWCP’s August 18, 2014 wage-earning 

capacity determination, the specific requirements of OWCP’s regulations for requesting a 

hearing or reconsideration do not apply in this case and she is entitled to a merit review on the 

wage-earning capacity issue.14 The case will be remanded to OWCP in order to adjudicate 

appellant’s request for modification of its August 18, 2004 wage-earning capacity determination 

and to issue an appropriate decision in this case. 

CONCLUSION 

 The Board finds that OWCP improperly treated appellant’s request for modification of 

OWCP’s August 18, 2004 wage-earning capacity determination as a request for a hearing. 

Appellant is therefore entitled to a merit review of the wage-earning capacity issue. The case 

will be remanded to OWCP for all necessary development and issuance of an appropriate 

decision. 

 12 Appellant also submitted an undated priority for assignment worksheet and medical evidence dated between 

May and August 2013. 

13 D.E., Docket No. 12-8 (issued June 7, 2012); F.B., Docket No. 10-99 (issued June 21, 2010); M.J., Docket No. 

08-2280 (issued July 7, 2009). 

14 See 20 C.F.R. §§ 10.606, 10.616; D.E., id. 
5

ORDER 

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

Compensation Programs is set aside and the case remanded to OWCP for further action 

consistent with this decision of the Board. 

Issued: February 5, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board