United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

V.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

East Orange, NJ, Employer 

_________________________________________ 

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Docket No. 13-2076 

Issued: March 5, 2014 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 11, 2013 appellant, through her representative, filed a timely appeal from a 

June 28, 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 OWCP properly denied modification of the July 15, 2010 wageearning capacity determination. 

On appeal, appellant asserts that her current employment is a makeshift or odd-lot 

position. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 28, 2007 appellant, then a 45-year-old food service worker, injured her left 

shoulder due to a fall onto a wet floor. She filed a traumatic injury claim (Form CA-1) on 

December 28, 2007. OWCP accepted her claim for compensation on February 5, 2008 for a left 

rotator cuff tear. In a decision dated January 21, 2010, it granted appellant a schedule award for 

five percent impairment of the right upper extremity. 

In a work capacity evaluation (OWCP-5c) dated December 2, 2009, Dr. Andrew M. 

Hutter, a Board-certified orthopedic surgeon, found that appellant could return to full-time work 

on light duty. He indicated that she had work restrictions of standing and walking for no more 

than five hours per day, lifting of no more than 10 pounds and kneeling no more than one hour 

per day. 

The employing establishment offered appellant a permanent light-duty position on 

May 7, 2010 as a food service worker, noting work restrictions of ability to stand and walk for 

five hours, ability to lift, pull and push up to 10 pounds, ability to kneel for one hour, and no 

reaching above the left shoulder. The duties of the position included working on sections of the 

tray line, described as “starter, vegetable, meat/entrée, bread, margarine, jelly, etc.,” and cleaning 

in the dish room, described as “sort out silvers, bags silvers, mat trays,” and “wipes down 

refrigerators and conveyor belts on tray line.” Appellant accepted this offer on May 10, 2010. 

By decision dated July 15, 2010, OWCP determined that appellant’s actual earnings since 

May 10, 2010 represented her wage-earning capacity. It found that she had no loss of wageearning capacity, as her earnings were equal to or exceeded her earnings on the date of injury. 

On August 18, 2010 appellant, through her representative, requested reconsideration of 

the July 15, 2010 decision. Appellant’s representative argued that there was no reason to set a 

loss of wage-earning capacity except to allow OWCP and the employing establishment to avoid 

paying her if they abolished her limited-duty position. 

By decision dated November 17, 2010, OWCP denied appellant’s request for 

reconsideration. It found that appellant had not submitted any relevant or pertinent new 

evidence, showed that OWCP erroneously applied or interpreted a point of law, or presented a 

legal or factual argument not previously considered. 

On November 23, 2010 appellant, through her representative, again requested 

reconsideration of the July 15, 2010 decision. Appellant’s representative argued that the 

decision was erroneous because it was based on an odd-lot or makeshift job. He stated that 

appellant’s position was not permanent and that no one else had a job like hers. Appellant’s 

representative noted that she assisted in making salads, performing hospitality services and doing 

paperwork. He argued that the position had been specially arranged due to her medical 

restrictions, and that it was not a regular job, but a limited-duty job designed for her. Appellant 

noted that the appeal was not about the creation of her job, but rather attributing a loss of wageearning capacity determination based on the job, because appellant anticipated that the 

employing establishment would eventually eliminate the position. 
3

 By letter dated April 9, 2013, appellant’s representative requested a response from 

OWCP regarding the reconsideration request of November 23, 2010, as OWCP had not yet 

replied. 

 On April 18, 2013 OWCP advised the employing establishment that appellant had filed a 

timely request for reconsideration, enclosed a copy of the application and requested that it submit 

comments within 20 days. 

 By letter dated April 30, 2013, the employing establishment responded. It stated that the 

allegation that appellant’s position was not permanent was incorrect, because it was a full-time, 

regular, permanent position, with clearly defined and limited duties in line with appellant’s 

medical restrictions. The employing establishment noted that the position would not be deemed 

“no longer necessary” and that it was not odd-lot or makeshift. It described her position as a 

permanent limited-duty Food Service Worker WG-7408, Grade 3, Step 5. 

 On May 6, 2013 appellant’s representative responded to the employing establishment’s 

letter dated April 30, 2013. He noted that the author of the letter was the workers’ compensation 

program manager at the employing establishment and not in a position to state that appellant’s 

job was regular, full time and permanent. Appellant’s representative again argued that a loss of 

wage-earning capacity determination was not necessary in this case, and that the only reason it 

was sought was to abolish appellant’s job in the future and reduce the employing establishment’s 

exposure. 

 By decision dated June 28, 2013, OWCP denied modification of the July 15, 2010 

decision regarding her loss of wage-earning capacity. It noted that appellant had worked in the 

limited-duty position for almost three years and that she continued to work in that position. 

OWCP found that the limited-duty food service worker position was not makeshift or odd-lot, 

because it was a classified position, the duties and physical requirements were indicated, and she 

was performing specific duties that correlated with the position of a food service worker. 

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.2

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 

 2 Dennis E. Maddy, 47 ECAB 259, 262 (1995). 
4

rehabilitated or the original determination was, in fact, erroneous.3 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.4

OWCP’s 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.5

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.6

 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 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.7

ANALYSIS 

Appellant’s claim was accepted for a left rotator cuff tear. She began work in a modified 

food service worker position on May 10, 2010 and continued to work for more than 60 days. 

The issue is whether the July 15, 2010 wage-earning determination was erroneous as the position 

worked was not suitable for a wage-earning capacity determination. Appellant’s representative 

argued that the position was odd-lot or makeshift, and that the employing establishment only 

sought a loss of wage-earning capacity determination so that it could avoid future liability when 

they eliminated her position. 

In reviewing the relevant factors regarding a makeshift position, the Board finds no 

evidence to establish that the modified food service worker position was makeshift. The job had 

an official title and a detailed job description. The physical restrictions were not overly strict, as 

appellant was limited to no more than five hours of standing and walking; no more than 10 

pounds of lifting, pulling, and pushing; no more than one hour of kneeling; and no reaching 

above the left shoulder, but performed activities associated with that of a food service worker 

position. The job involved meaningful tasks, such as working on sections of the tray line to 

make meals and cleaning in the dish room. Thus, the food service worker position in this case 

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

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

5

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

Chapter 2.814.4 (June 2013). 

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

7 Id.
5

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

involved meaningful tasks correlated to that of a food service worker. 

With respect to whether the position was temporary, no evidence was presented to 

indicate that the position was in fact temporary. The written job offer and job description 

contained no indications that the position was temporary. Appellant’s representative merely 

asserted that the employing establishment would, at some future time, eliminate her position. 

Appellant had worked as a modified food service worker for three years at the time of OWCP’s 

June 28, 2013 decision denying modification of the wage-earning capacity determination. Thus, 

there is no probative evidence establishing that the position was temporary in nature. 

OWCP procedures state that a light-duty position that fairly and reasonably represents an 

employee’s ability to earn wages may form the basis of a loss of wage-earning capacity 

determination if that light-duty position is a classified position to which the injured employee has 

been formally reassigned.8

 The position must conform to the established physical limitations of 

the injured employee, the employer must have a written position description outlining the duties 

and physical requirements, and the position must correlate to the type of appointment held by the 

injured employee at the time of injury.9 Appellant’s modified food service worker position is a 

classified position and she has been formally reassigned. The physical restrictions of this 

position conform to the limitations described by Dr. Hutter in his December 2, 2009 work 

capacity evaluation. As noted above, there is a written position description outlining the duties 

of this position and physical requirements. Finally, appellant worked in an unmodified food 

service worker position at the time of injury. 

The Board finds that, based on the evidence of record, the modified food service worker 

job performed as of May 10, 2010 was appropriate for a wage-earning capacity determination. It 

was not part-time, makeshift or temporary. OWCP found that appellant’s earnings were equal to 

her earnings as of the date of injury, noting that she had earned $807.90 per week in her job 

before the injury and earned $807.90 in the permanent modified food service worker position 

after her injury. The Board finds that OWCP properly determined that appellant had no loss of 

wage-earning capacity based on her actual earnings. Appellant may request modification of the 

wage-earning capacity determination, supported by new evidence or argument, at any time 

before OWCP. 

CONCLUSION 

The Board finds that OWCP properly denied modification of appellant’s wage-earning 

capacity determination. 

 8 Supra note 5 at Chapter 2.815.5(c) (June 2013). 

9 Id. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 28, 2013 is affirmed. 

Issued: March 5, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board