United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pasco, WA, Employer 

__________________________________________ 

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Docket No. 14-1716 

Issued: February 4, 2015 

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On August 4, 2014 appellant, through her attorney, filed a timely appeal from a 

March 25, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 

Pursuant to the Federal Employees’ Compensation Act2

 (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 sustained a recurrence of disability when the employing 

establishment withdrew limited duty. 

 1

 Together with her appeal appellant, through her representative, submitted a timely request for oral argument, 

pursuant to 20 C.F.R. § 501.5(b). The Board exercised its discretion pursuant to 20 C.F.R. § 501.5(a) and denied the 

request by order dated December 23, 2014 on the grounds that appellant’s contention could be fully addressed based 

on a review of the evidence of record. Order Denying Request for Oral Argument, Docket No. 14-1716 (issued 

December 23, 2014). 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 5, 1999 appellant, then a 42-year-old full-time mail processor, sustained a 

traumatic injury in the performance of duty while bending over to put labels in boxes. She 

twisted when her name was called, and she felt a sharp pain in her lower back. OWCP accepted 

appellant’s claim for lumbosacral strain and aggravation of herniated disc at L4-5. Appellant 

underwent a discectomy at L4-5 on March 2, 2000. 

On January 14, 2002 OWCP issued a loss of wage-earning capacity (LWEC) 

determination after appellant was reemployed for four hours a day as a mail processor effective 

January 8, 2001. It found that her wages in this position fairly and reasonably represented her 

wage-earning capacity. OWCP adjusted appellant’s compensation for wage loss accordingly. 

In a decision dated July 31, 2002, however, OWCP rescinded its January 14, 2002 LWEC 

determination. It found that the decision was in error, as earnings in a part-time position cannot 

reasonably represent the wage-earning capacity of an employee whose date-of-injury position 

was full time. 

On December 5, 2012 appellant filed a Form CA-2a, notice of recurrence. She claimed 

that she sustained a recurrence of total disability on June 30, 2012 when her employing 

establishment withdrew her light-duty assignment. 

By letter dated February 7, 2014, OWCP informed appellant that a formal LWEC 

determination had been issued in her case on January 14, 2002. It provided her with a copy of 

that determination. OWCP then notified appellant of the three criteria for obtaining modification 

of an LWEC determination. It advised that an employing establishment withdrawal of a 

light-duty assignment was not considered one of the three reasons to modify “the current LWEC 

decision.” 

In a decision dated March 25, 2014, OWCP denied modification of its January 14, 2002 

LWEC determination. 

Counsel argues that OWCP rescinded the January 14, 2002 LWEC determination, and as 

a result, the issue was not modification of an LWEC determination, but rather was one of 

recurrence. 

LEGAL PRECEDENT 

Once OWCP issues a formal decision on wage-earning capacity, the rating should be left 

in place until the claimant requests resumption of compensation for total wage loss for more than 

a limited period of disability, in which instance OWCP will need to evaluate the request 

according to the customary criteria for modifying a formal wage-earning capacity 

determination.3

 3 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). 
3

FECA specifies that an award for or against payment of compensation may be reviewed 

at any time on the Director’s own motion. Such review may be made without regard to whether 

there is new evidence or information. If the Director determines that a review of the award is 

warranted (including, but not limited to, circumstances indicating a mistake of fact, or law or 

changed conditions), the Director (at any time and on the basis of existing evidence) may 

modify, rescind, decrease, or increase compensation previously awarded, or award compensation 

previously denied.4

ANALYSIS 

After appellant filed her recurrence claim on December 5, 2012, OWCP observed that it 

had issued a formal LWEC determination on January 14, 2002 and that the issue, therefore, was 

whether appellant had established one of the three criteria for modifying the existing LWEC 

determination. Under normal circumstances, this would have been the correct procedure. 

However, OWCP rescinded its January 14, 2002 LWEC determination, approximately 

six months after its issuance. In a decision dated July 31, 2002, it explained that LWEC 

determination was in error. OWCP found that actual earnings in a part-time position could not 

be used to determine the wage-earning capacity of an employee who was a full-time employee at 

the time of injury. 

Thus, when appellant filed her recurrence claim on December 5, 2012, there was no 

longer a formal LWEC determination in place. She was free to pursue her recurrence claim in 

the usual manner without having to meet the criteria for modifying an LWEC determination. 

Counsel correctly argued this issue on appeal. 

Accordingly, the Board will set aside OWCP’s March 25, 2014 decision denying 

modification of the January 14, 2002 LWEC determination. The Board will remand the case to 

OWCP for further development and a de novo decision on appellant’s recurrence claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further action is warranted. 

 4

 20 C.F.R. § 10.610. 
4

ORDER 

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

Workers’ Compensation Programs is set aside and the case remanded for further action. 

Issued: February 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board