United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kent, CT, Employer 

__________________________________________ 

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Docket No. 14-370 

Issued: May 15, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 4, 2013 appellant, through counsel, filed a timely appeal of an October 17, 

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.2

ISSUE 

The issue is whether appellant met her burden of proof to modify the May 5, 1999 loss of 

wage-earning capacity (LWEC). 

On appeal counsel contends that the decision is contrary to law and fact. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the October 17, 2013 decision, OWCP received additional evidence. However, 

the Board may only review evidence that was in the record at the time OWCP issued its final decision. See

20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 

58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

FACTUAL HISTORY 

On March 22, 1996 appellant, then a 42-year-old rural carrier, filed an occupational 

disease claim alleging that on December 29, 1995 she first realized that her two cervical slipped 

discs were due to her work duties. She stopped work on December 29, 1995. OWCP accepted 

the claim for cervical strain and aggravation of preexisting fibromyalgia. 

On August 15, 1997 appellant accepted a part-time (four hours per day) position as a 

modified rural carrier, which was available effective September 3, 1997. 

On May 5, 1999 OWCP noted that appellant was reemployed as a modified rural carrier 

for 20 hours a week with wages of $366.57. The employment was effective on 

September 3, 1997. OWCP found that the duties of appellant’s new position reflected the work 

tolerance limitations established by the weight of the medical evidence and that she met the 

training, education and work experience of the job. Citing 5 U.S.C. § 8115, OWCP notified 

appellant that it was adjusting her compensation for wage loss to reflect her capacity to earn 

wages in her new position. 

On April 12, 2001 appellant accepted a new position of rehabilitation distribution clerk, 

which was effective April 23, 2001. The hours of the position were from 8:00 a.m. to 12:00 p.m. 

On April 20, 2010 appellant filed a recurrence claim (Form CA-2a). Effective April 20, 

2010, the employing establishment eliminated her part-time limited-duty assignment pursuant to 

the National Reassessment Process (NRP). 

By decision dated August 2, 2010, OWCP denied modification of the May 5, 1999 

LWEC, and thereby denied her claim for a recurrence of disability effective April 20, 2010. 

In an October 29, 2010 letter, appellant requested reconsideration on the denial of her 

request for modification of the May 5, 1999 LWEC. 

By decision dated January 7, 2011, OWCP denied modification. 

On February 15, 2011 appellant requested reconsideration. 

By decision dated May 17, 2011, OWCP denied modification. 

On June 22, 2011 appellant requested reconsideration. 

By decision dated September 23, 2011, OWCP denied reconsideration, finding that 

appellant had neither submitted relevant evidence not previously reviewed or advanced legal 

contentions not previously considered. 

In a letter dated April 13, 2012, appellant’s counsel requested modification of the May 5, 

1999 LWEC. She argued that the LWEC was erroneous as it was based upon a part-time job 

when appellant had been a full-time employee. 

By decision dated July 20, 2012, OWCP denied modification. 
3

By order dated July 25, 2013, the Board set aside the July 20, 2012 OWCP decision as 

the record before the Board was incomplete due to missing evidence and claim files.3

On remand, OWCP followed the Board’s instructions to combine file numbers 

xxxxxx9674

 and xxxxxx579. 

By decision dated October 17, 2013, OWCP denied modification. 

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.5

 Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.6

 

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.7 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.8 

A recurrence of disability includes an inability to work that takes place when a light-duty 

assignment made specifically to accommodate an employee’s physical limitations due to his 

work-related injury or illness is withdrawn -- except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties or a reduction-in-force (RIF).9 Absent a formal wageearning capacity determination and assuming the position was not withdrawn for cause or 

because of a RIF, the employee would be entitled to compensation based upon a showing of 

continuing injury-related disability for regular duty10 but when a formal wage-earning capacity 

determination is in place, the subsequent withdrawal of a light-duty assignment is not treated like 

a recurrence of disability.11 Under these particular circumstances, OWCP shall review the claim 

for additional compensation as a request for modification of the wage-earning capacity 

 3

 Docket No. 12-1955 (issued July25, 2013) 

4

 Under this file number, OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. (ICD9 -- File 

No. xxxxxx967) 

5 See 5 U.S.C. § 8115 (determination of wage-earning capacity). 

6 Sharon C. Clement, 55 ECAB 552 (2004). 

7 Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000). 

8 Id. 

9

 20 C.F.R. § 10.5(x). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a)(4) (June 2013). 

11 Id. at Chapter 2.1500.6(a)(5) 
4

determination and apply the above-noted criteria in determining whether modification is 

warranted.12

ANALYSIS 

Due to residuals of her accepted employment injuries, appellant was unable to resume her 

previous full-time duties as a rural carrier. On August 5, 1997 she accepted a part time (four 

hours per day) work as a modified rural carrier. OWCP issued a May 5, 1999 LWEC 

determination based on appellant’s earnings as a part-time modified rural carrier. On April 12, 

2001 appellant accepted a newly offered part-time position (working four hours per day) as 

rehabilitation distribution clerk. The employing establishment withdrew appellant’s part-time, 

limited-duty assignment effective April 20, 2010. Appellant filed a claim for a recurrence of 

total disability based on the elimination of her position by the employing establishment under 

NRP. OWCP denied appellant’s claim for a recurrence finding that she had failed to establish a 

basis for modifying the May 5, 1999 LWEC determination. 

One of the grounds for modifying an LWEC determination is that the original 

determination was erroneous.13 The Board finds that the May 6, 1999 LWEC determination was 

erroneous because OWCP based its finding on a part-time position. Factors to be considered in 

determining if a position fairly and reasonably represents the injured employee’s wage-earning 

capacity include: (1) whether the kind of appointment and tour of duty are at least equivalent to 

those of the date-of-injury job; (2) whether the job is part time (unless the claimant was a parttime worker at the time of injury) or sporadic in nature; (3) whether the job is seasonal in an area 

where year-round employment is available; and (4) whether the job is temporary where the 

claimant’s previous job was permanent.14 

The record established that, prior to her accepted employment injury, appellant worked 

full time. OWCP failed to follow the procedure manual when it erroneously relied on her parttime reemployment as a basis for finding that her actual earnings fairly and reasonably 

represented her wage-earning capacity. The procedure manual clearly states that the 

reemployment may not be considered suitable when the job is part time, unless the claimant was 

a part-time worker at the time of injury.15 The Board finds that OWCP abused its discretion in 

determining that appellant’s actual earnings in part-time reemployment fairly and reasonably 

represented her wage-earning capacity. Accordingly, the May 5, 199 LWEC determination is 

reversed.16

 12 Id.; K.R., Docket No. 09-415 (issued February 24, 2010); K.R., Docket No. 09-28 (issued September 16, 2009). 

13 Tamra McCauley, supra note 7. 

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

Actual Earnings, Chapter 2.815.5(c) (June 2013). 

15 Id. 

16 See O.V., Docket No. 11-98 (issued September 30, 2011). 
5

The case will be remanded to OWCP to determine whether appellant is entitled to wageloss compensation for total disability based on the employer’s withdrawal of her limited-duty 

assignment effective April 20, 2010. 

CONCLUSION 

The Board finds that OWCP the May 5, 1999 LWEC determination is erroneous. 

ORDER 

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

Compensation Programs dated October 17, 2013 is reversed. 

Issued: May 15, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board