United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer 

__________________________________________ 

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Docket No. 13-1598 

Issued: September 22, 2014 

 

Appearances: Case Submitted on the Record

Steve Burt, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On June 27, 2013 appellant, through her representative, filed a timely appeal from a 

March 12, 2013 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 appellant met her burden of proof to establish modification of 

OWCP’s December 11, 1997 loss of wage-earning capacity determination. 

FACTUAL HISTORY 

In March 1997, OWCP accepted that appellant, then a 41-year-old letter carrier, sustained 

bilateral aggravation of osteoarthritis of her knees due to the performance of her work duties 

 1

 5 U.S.C. §§ 8101-8193. 
2

over time.2 Appellant stopped work on December 28, 1995 in order to undergo left knee 

arthroscopy with medial meniscus debridement on December 29, 1995 and she returned to 

limited-duty work for the employing establishment on January 10, 1996. 

In a May 5, 1997 report, Dr. William Higginbotham, an attending Board-certified 

orthopedic surgeon, indicated that appellant had degenerative changes of her knees which were 

worse in her left knee (including changes in the patellofemoral and medial joints). He 

recommended that appellant alternate between sitting and standing during the workday and that 

she not climb ladders, stand for prolonged periods, walk for long distances or walk on 

unprotected heights. 

On May 28, 1997 Dr. William Fitz, an attending Board-certified physical medicine and 

rehabilitation physician, stated that appellant could return to work with restrictions, including 

lifting, carrying, pushing and pulling no more than 15 pounds. 

On June 28, 1997 the employing establishment offered appellant a full-time position 

bearing the title “modified carrier.”3 Appellant accepted the position on July 10, 1997 and began 

working in it on August 2, 1997. The modified carrier position allowed appellant to alternate 

between sitting and standing at will while sorting mail into carrier cases and inputting data on a 

keyboard for the delivery support information system and other programs.4 The physical 

requirements of the position included alternating between sitting and standing and appellant was 

not required to stoop, climb ladders, stand for prolonged periods, walk long distances or walk on 

unprotected heights. 

In a December 11, 1997 decision, OWCP determined that appellant’s actual wages as a 

modified carrier fairly and reasonably represented her wage-earning capacity. It found that she 

had no loss of wage-earning capacity and stated, “Since you returned as a modified carrier with 

retained wages, your wages match the current salary of your date-of-injury job as a carrier.”5 

OWCP indicated that appellant was vocationally and medically suited for the modified carrier 

position. 

 In June 19, 2001 and October 10, 2002 duty status reports (CA-17 forms), Dr. Diane 

Culik, an attending Board-certified family practitioner, indicated that appellant could work for 

eight hours per day with restrictions including lifting up to 20 pounds, walking for up to two 

hours per day and standing for up to one hour per day. Appellant could sit for eight hours daily 

but she could not kneel, bend or stoop. In an April 26, 2005 duty status report, Dr. Culik 

indicated that appellant could work for eight hours per day with restrictions including lifting up 

 2

 Appellant filed an occupational disease claim in January 1997 indicating that she first became aware of her 

claimed condition and its relationship to work factors on September 5, 1995 when she noticed that her left knee 

became inflamed while performing her work duties. Her letter carrier position required her to case and sort mail for 

two to three hours per day and to deliver mail for five hours per day. 

3

 The hours of the position were 8:00 a.m. to 4:40 p.m., five days per week. 

4

 The mail sorting task did not require using more than one hand at a time. 

5

 Appellant’s pay rate when her disability began was $702.90 per week and the current pay rate for the job she 

held when injured was $708.90. 
3

to 20 pounds, walking for up to four hours per day and standing for up to one hour per day. 

Appellant could not engage in kneeling, bending or stooping. 

On March 17, 2007 appellant began working in a full-time position which involved 

casing mail, inputting data and working on undeliverable mail. The position required lifting up 

to 20 pounds, walking for up to four hours per day, standing for up to one hour at a time, 

occasional bending and reaching above the shoulder, and infrequent climbing. 

In a June 21, 2007 duty status form report, Dr. Culik indicated that appellant could work 

for eight hours per day with restrictions including lifting up to 20 pounds, walking for up to two 

hours at a time and standing for up to two hours at a time. Appellant could occasionally bend 

and reach above the shoulder and could climb on rare occasions. In a duty status report dated 

June 23, 2009, Dr. Culik listed appellant’s restrictions as walking for up to two hours at a time 

and standing for up to two hours at a time. Appellant could occasionally bend and reach above 

the shoulder and could climb on rare occasions.6 On January 27, 2010 Dr. Culik found that 

appellant could work for eight hours per day, with restrictions of lifting up to 20 pounds, walking 

for up to 41⁄2 hours per day and standing for up to 41⁄2 hours per day. Appellant could bend, 

stoop, twist, push and pull for up to three hours per day and could occasionally engage in 

climbing. 

Under the National Reassessment Process (NRP), the employing establishment offered 

appellant a modified city carrier position on April 29, 2010, a position which reduced her work 

hours from 8.0 to 5.5 hours per day for five days per week. The position involved delivering 

mail for part of the day and required her to lift up to 20 pounds, walk for up to 41⁄2 hours per day, 

stand for up to 41⁄2 hours per day, and bend, stoop, twist, push and pull for up to three hours per 

day. Appellant accepted the position “with protest” on May 13, 2010.7

On June 25, 2010 appellant filed a claim (Form CA-2a) alleging that she sustained a 

recurrence of disability on June 5, 2010 due to her accepted work injury. She indicated that her 

bilateral knee pain lessened when she worked in a modified position that did not require carrying 

mail but that the pain never completely went away. Appellant noted that on June 5, 2010 she 

was reassigned to the Monroe Post Office and that she had to stop work early that day after 

experiencing increased knee pain while attempting to deliver her mail route.8

Appellant submitted a June 23, 2010 duty status report in which Dr. Culik found that she 

could work for eight hours per day, with restrictions of lifting up to 20 pounds, walking for up to 

 6

 In a September 30, 2009 duty status report, Dr. Culik indicated that appellant could walk for one and a half 

hours at a time. 

7

 On August 13, 2009 the employing establishment offered appellant a modified job for one and a half hours per 

day under NRP. Appellant rejected the offered position and it does not appear that she worked in the position. 

8

 On December 27, 2010 appellant filed a Form CA-2a containing a similar claim that she sustained a recurrence 

of disability on June 5, 2010 due to her accepted work injury. In this form, she indicated that she last worked on 

June 23, 2010 and that the employing establishment told her that it did not have work within her work restrictions. 

In a December 1, 2010 letter, appellant described the work duties she was performing in mid-2010, including 

engaging in repetitive lifting and twisting while casing mail. 
4

one hour per day and standing for up to two hours per day. Appellant could bend, stoop and 

twist for up to one hour per day, push and pull for up to one half hour per day and occasionally 

engage in climbing. On July 15 and September 8, 2010 Dr. Culik provided similar work 

restrictions. On December 1, 2010 she indicated that appellant could engage in pushing and 

pulling for up to eight hours per day. 

In a report dated December 3, 2010, Dr. Culik indicated that appellant had been on work 

restrictions due to severe osteoarthritis in her knees, especially in the left knee, noting that this 

condition was related to chronic wear and tear from standing at work and injuries related to work 

duty. She discussed appellant’s work duties between June and September 2010 and stated: 

“I definitely feel [appellant] has pushed herself to continue working to the best of 

her ability despite prolonged wear and tear and overuse of her knees and chronic 

pain and continuing her recommended medical management, and cooperating 

with the surgical and physical therapy recommendations of her orthopedic 

surgeon. She has reached the point that she can no longer medically continue 

with the required duties of her job position.” 

In a February 1, 2011 duty status report, Dr. Culik stated that appellant could work for 

eight hours per day, with restrictions of lifting up to 20 pounds, walking for up to one hour per 

day and standing for up to two hours per day. Appellant could bend, stoop, twist, push and pull 

for up to one hour per day and could occasionally engage in climbing. 

In a March 28, 2011 letter, OWCP advised appellant that it considered her recurrence of 

disability claim to be a request for modification of its December 11, 1997 wage-earning capacity 

determination. It informed appellant of the criteria for modifying a wage-earning capacity 

determination including showing that the original rating was in error, that her injury-related 

medical condition had worsened such that she could not work in the rated position or that she 

had been retrained or otherwise vocationally rehabilitated. In another March 28, 2011 letter, 

OWCP asked the employing establishment to provide various documents, including copies of 

position descriptions of jobs held by appellant. The employing establishment submitted copies 

of position descriptions of jobs held by appellant, including the modified carrier position on 

which the December 11, 1997 wage-earning capacity determination was based. 

In an April 15, 2011 letter, appellant alleged that OWCP’s December 11, 1997 wageearning capacity determination was made in error because it was based on the modified carrier 

position which did not fairly represent her “previous letter carrier duties.” She argued that much 

of the work of the modified carrier position she began performing in 1997 was “make-work” and 

“not core letter carrier work to begin with.” Appellant felt that the modified carrier position was 

“nothing more than a collection of make-work duties and was never a valid, funded or titled 

position.” She claimed that, if she left the modified carrier position, it would not represent the 

type of position that could be bid upon by her coworkers. 

In a February 22, 2012 duty status report, Dr. Culik recommended work restrictions 

which were similar to those contained in her February 1, 2011 duty status report. 
5

In a March 16, 2012 decision, OWCP found that appellant did not meet her burden of 

proof to modify its December 11, 1997 wage-earning capacity determination. It indicated that 

appellant had not shown that there was a material worsening of her injury-related condition such 

that she was unable to earn wages as a modified carrier position, i.e., the position on which the 

December 11, 1997 determination was based. 

In a decision dated May 30, 2012, an OWCP hearing representative set aside OWCP’s 

March 16, 2012 decision on the grounds that OWCP had not adequately considered appellant’s 

argument that the December 11, 1997 wage-earning capacity determination should be modified 

because the determination was erroneous at the time it was made. Appellant had argued that the 

determination was erroneous because it was based on wages earned in a makeshift or odd-lot 

position. The case was remanded to OWCP for consideration of this argument. 

In an August 3, 2012 decision, OWCP denied appellant’s request for modification of its 

December 11, 1997 wage-earning capacity determination. It found that appellant had not shown 

that the December 11, 1997 determination was erroneous or that her injury-related condition 

worsened such that she was unable to earn wages as a modified carrier. OWCP determined that 

the modified carrier position was not a makeshift or odd-lot position. 

Appellant requested a hearing with an OWCP hearing representative. During the 

December 18, 2012 hearing, she testified that the 1997 job offer involved casing mail and 

entering data into a computer keyboard. Appellant stated that other duties were later assigned, 

including some express mail delivery and pickup, office supply clerk duties, Combined Federal 

Campaign responsibilities and food drive assistance. She indicated that she cased mail from one 

to three hours daily. Appellant continued with these activities until 2009 when her work hours 

were diminished due to NRP. She stated that she was unable to continue working in June 2009 

and that a manager sent her home because no work was available within her work restrictions. 

Appellant’s representative asserted that OWCP’s December 11, 1997 wage-earning capacity 

determination should be modified because the original rating was in error. He argued that the 

1997 job offer was devised to meet appellant’s specific needs, that it had no formal job title or 

position number, and that it could not have been found in the local job market. Appellant’s 

representative discussed FECA Bulletin No. 09-05 and argued that the wage-earning capacity 

determination was not based on a bona fide job offer, i.e., a classified position with a formal 

position description. He also asserted that the evidence showed a change in the injury-related 

condition such that appellant’s medical status actually improved prior to being offered a new job 

in April 2010. For these reasons, OWCP should have modified its December 11, 1997 wageearning capacity determination.9

In a March 12, 2013 decision, an OWCP hearing representative affirmed OWCP’s 

August 3, 2012 decision. He found that appellant had not shown that the December 11, 1997 

determination was erroneous or that her injury-related condition worsened such that she was 

unable to earn wages as a modified carrier. 

 9

 Appellant’s representative submitted a copy of a Merit Systems Protection Board case which he believed 

supported his argument that the modified carrier position represented makeshift of odd-lot work. 
6

LEGAL PRECEDENT 

Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages 

received by an employee if the earnings fairly and reasonably represent his or her wage-earning 

capacity. Generally, wages actually earned are the best measure of 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 A determination 

regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity 

should be made only after an employee has worked in a given position for more than 60 days.11

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.12 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.13 

OWCP procedure manual provides guidelines for determining wage-earning capacity 

based on actual earnings. A job that is part-time (when the claimant was a full-time employee at 

the time of injury), seasonal in an area where year-round employment is available, or temporary 

(when the date-of-injury position was a permanent position) is generally not appropriate for a 

wage-earning capacity determination.14 

In addition, it is well established that a position that is considered an odd-lot or makeshift 

position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity 

determination.15 The Board has discussed several factors that may support a finding that the 

offered position was makeshift in nature. These factors include: (1) the position did not have an 

official title or formal position description; (2) there were strict limitations, such as five-pound 

lifting and no casing of mail, which indicated that the claimant would not be able to secure a 

position in the community at large with such limited duties; (3) the claimant did not perform any 

meaningful tasks in the position; and (4) the job appeared to be temporary in nature.16

FECA Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are 

withdrawn pursuant to NRP. If a formal wage-earning capacity decision has been issued, OWCP 

 10 Dennis E. Maddy, 47 ECAB 259, 262 (1995). 

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

Chapter 2.814.7(c) (October 2009). 

12 See Sharon C. Clement, 55 ECAB 552 (2004). 

13 See T.M., Docket No. 08-975 (issued February 6, 2009). 

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

15 See A.J., Docket No. 10-619 (issued June 29, 2010). 

16 Id.
7

must develop the evidence to determine whether a modification of that decision is appropriate.17 

When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 09-05 

requires OWCP to develop the evidence to determine whether a modification of the decision is 

appropriate.18 To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the file 

contains documentary evidence supporting that the position was an actual bona fide position. It 

requires OWCP to review whether a current medical report supports work-related disability and 

establishes that the current need for limited duty or medical treatment is a result of injury-related 

residuals, and to further develop the evidence from both the claimant and the employing 

establishment if the case lacks current medical evidence.19

ANALYSIS 

OWCP accepted that appellant sustained bilateral aggravation of the osteoarthritis of her 

knees due to the performance of her work duties over time. Appellant stopped work on 

December 28, 1995 in order to undergo left knee surgery on December 29, 1995 and she returned 

to limited-duty work for the employing establishment on January 10, 1996. 

On June 28, 1997 the employing establishment offered appellant a full-time position 

bearing the title “modified carrier.” Appellant began working in the position on August 2, 1997. 

The modified carrier position allowed appellant to alternate between sitting and standing at will 

while sorting mail into carrier cases and inputting data on a keyboard for the delivery support 

information system and other programs. The physical requirements of the position included 

alternating between sitting and standing and appellant was not required to stoop, climb ladders, 

stand for prolonged periods, walk long distances or walk on unprotected heights. In a 

December 11, 1997 decision, OWCP determined that appellant’s actual wages as a modified 

carrier fairly and reasonably represented her wage-earning capacity. It indicated that appellant 

was vocationally and medically suited for the modified carrier position and found that she had no 

loss of wage-earning capacity. On April 29, 2010 OWCP offered appellant a modified position 

under NRP. The modified carrier position reduced appellant’s work hours. 

Appellant stopped work in June 2010 and requested that OWCP modify its December 11, 

1997 wage-earning capacity determination.20 In several decisions, OWCP found that appellant 

had not met her burden of proof to modify the December 11, 1997 determination. 

 17 FECA Bulletin No. 09-05 (issued August 18, 2009). 

18 Id. 

19 Id. at §§ I.A.1-2. 

20 Appellant initially indicated that she was claiming a recurrence of work-related disability, but she later 

indicated that she was requesting modification of OWCP’s December 11, 1997 wage-earning capacity 

determination. 
8

The Board finds that appellant did not meet her burden of proof to modify OWCP’s 

December 11, 1997 wage-earning determination under any of the three criteria discussed 

above.21

Appellant and her representative alleged, both before OWCP and on appeal, that 

OWCP’s original December 11, 1997 wage-earning capacity determination was, in fact, 

erroneous. It was argued that the position upon which the rating was based, i.e., modified 

carrier, was makeshift or odd-lot in nature and therefore could not be used to justify the wageearning capacity determination. 

In the case of A.J.,22 the Board discussed several factors that may support a finding that 

an offered position was makeshift or odd-lot in nature. These factors include: (1) the position 

did not have an official title or formal position description; (2) there were strict limitations, such 

as five-pound lifting and no casing of mail, which indicated that the claimant would not be able 

to secure a position in the community at large with such limited duties; (3) the claimant did not 

perform any meaningful tasks in the position; and (4) the job appeared to be temporary in 

nature.23

The Board finds that the facts of the present case are distinguishable from those of the 

case of A.J. and that the modified carrier position which served as the basis for OWCP’s 

December 11, 1997 wage-earning capacity determination does not constitute a makeshift or oddlot position. Although the position that appellant began performing on August 2, 1997 was not 

classified, it did have the title of modified carrier. The position description for the job listed 

specific work duties and physical requirements. The limitations of the position were not unduly 

strict as the job included the activities of sorting and casing mail and making entries on a 

keyboard. These are meaningful tasks which had been a substantial part of appellant’s date-ofinjury job as a letter carrier. The position was not temporary in nature as appellant performed it 

for a number of years. There was no evidence that the position was created specifically for 

appellant. Thus, the modified carrier position was not makeshift or odd-lot in nature because it 

had a detailed job description, was performed without overly strict physical restrictions and 

involved meaningful tasks correlated to that of a letter carrier.24

The evidence further reveals that the modified carrier position was medically and 

vocationally suitable for appellant. Appellant testified that other duties were added to the 

modified carrier position. However, she did not establish that she was required to exceed her 

 21 See supra note 12. 

22 Supra note 15. 

23 See also V.H., Docket No. 13-2076 (issued March 5, 2014). 

24 See K.A., Docket No. 13-1652 (issued January 6, 2014) (position serving as basis for wage-earning capacity 

determination found to not be makeshift or odd-lot because it had a detailed job description, was performed without 

overly strict physical restrictions and involved meaningful tasks). Appellant’s representative submitted a copy of a 

Merit Systems Protection Board case which he believed supported his argument that the modified carrier position 

represented makeshift of odd-lot work. However, he did not explain how the standards of another federal agency 

were applicable to the present case decided under FECA. 
9

physical limitations or that her assignment was vocationally unsuitable.25 Actual earnings are 

generally the best measure of wage-earning capacity and OWCP properly used appellant’s actual 

wages in the modified carrier position to determine her wage-earning capacity.26 There was no 

clear probative evidence that the December 11, 1997 wage-earning capacity finding was 

erroneous. 

Appellant and her representative also argued that she experienced a worsening of her 

injury-related condition in June 2009 which prevented her from working in the modified carrier 

job from that time forward. The Board finds that the medical evidence does not contain 

probative medical evidence showing such a worsening of appellant’s injury-related condition.27

The Board notes that appellant’s medical restrictions remained fairly consistent over an 

extended period of time. For example, in June 19, 2001 and October 10, 2002 duty status 

reports, Dr. Culik, an attending Board-certified family practitioner, indicated that appellant could 

work for eight hours per day with restrictions including lifting up to 20 pounds, walking for up to 

two hours per day and standing for up to one hour per day. These restrictions would not have 

prevented appellant from performing the modified carrier position as that position was primarily 

a sedentary position which allowed appellant to alternate at will between sitting and standing. 

Dr. Culik later gradually lessened appellant’s work restrictions over time, a circumstance which 

suggests an improvement in her bilateral knee condition rather than a worsening. On January 27, 

2010 she found that appellant could work for eight hours per day, with restrictions of lifting up to 

20 pounds, walking for up to 41⁄2 hours per day, and standing for up to 41⁄2 hours per day. 

Appellant could bend, stoop, twist, push and pull for up to three hours per day and could 

occasionally engage in climbing. 

While Dr. Culik did indicate in December 2010 that appellant could “no longer medically 

continue with the required duties of her job position” she did not provide a clear indication that 

she could not perform the duties of the modified carrier position which served as the basis for 

OWCP’s December 11, 1997 wage-earning capacity determination. Moreover, although 

Dr. Culik suggested that appellant’s accepted work injury from the mid-1990s contributed to her 

inability to work in 2010, she did not provide a clear opinion on this matter. She did not provide 

any significant discussion of appellant’s accepted bilateral knee condition or provide a 

rationalized medical explanation of how it could have contributed to her capacity to work during 

any period after she began working as a modified carrier. Therefore, appellant did not show that 

a worsening of her injury-related condition prevented her from working as a modified carrier. 

The Board further notes that, in denying appellant’s request for modification of the 

December 11, 1997 wage-earning capacity evaluation, OWCP properly complied with the 

requirements of FECA Bulletin No. 09-05. OWCP confirmed that the file contained 

documentary evidence supporting that the modified carrier position was an actual bona fide

 25 See H.S., Docket No. 11-1791 (issued March 23, 2012). 

26 OWCP complied with its procedures by making its December 11, 1997 wage-earning capacity determination 

after appellant worked in the modified carrier position for more than 60 days. See supra note 11. 

27 In addition, appellant has not alleged or otherwise shown that OWCP’s December 11, 1997 determination 

should be modified because she had been retrained or otherwise vocationally rehabilitated. See supra note 12. 
10

position and reviewed the record to determine whether a current medical report supported workrelated disability with respect to the modified carrier position.28 For the above-described 

reasons, appellant did not meet her burden of proof to establish that modification of OWCP’s 

December 11, 1997 loss of wage-earning capacity determination is warranted. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that 

modification of OWCP’s December 11, 1997 loss of wage-earning capacity determination is 

warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the March 12, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed.29

Issued: September 22, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 28 See supra notes 17 through 19. 

29 Richard J. Daschbach, Chief Judge, who participated in the preparation of the opinion, was no longer a member 

of the Board after May 16, 2014.