United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Troy, MI, Employer 

__________________________________________ 

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Docket No. 15-0726 

Issued: October 20, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 3, 2015 appellant, through counsel, filed a timely appeal from a 

December 23, 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 to review the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to modify OWCP’s July 10, 2006 

loss of wage-earning capacity (LWEC) decision. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 In an August 29, 2012 decision, the 

Board set aside a July 8, 2011 OWCP decision denying modification of the July 10, 2006 LWEC 

determination. The Board remanded the case for OWCP to apply FECA Bulletin No. 09-05. 

The Board noted that OWCP had not discussed the medical evidence as to whether appellant 

continued to have residuals of his accepted employment-related injury. The relevant facts are set 

forth below. 

On February 10, 2005 appellant, then a 41-year-old mail processing clerk, filed an 

occupational disease claim alleging that his repetitive work duties caused his injury. 

On April 27, 2005 OWCP accepted appellant’s claim for lumbosacral degenerative 

intervertebral disc disease and spondylolisthesis. It approved L4-5 spinal fusion performed on 

March 18, 2005. On December 13, 2005 Dr. David M. Montgomery, an attending 

Board-certified orthopedic surgeon, released appellant to return to work eight hours a day with 

restrictions of no lifting over 10 pounds and no repetitive bending, and a sit/stand option. 

Appellant could sit, stand, and walk intermittently up to eight hours a day. 

On May 1, 2006 the employing establishment offered appellant a full-time modified clerk 

position based on the restrictions provided by Dr. Montgomery. The offer noted the position had 

been tailored to meet appellant’s physical needs and allowed him to work eight hours a day, with 

intermittent, walking, and standing, simple grasping, and no bending, truncal twisting, reaching, 

reaching above shoulder level, pushing, pulling, squatting, kneeling, bending, stooping, 

climbing, and lifting more than 10 pounds.3

 Appellant accepted the position on May 4, 2006. 

In a July 10, 2006 decision, OWCP reduced appellant’s compensation to zero based on its 

determination that he had worked more than 60 days in the modified clerk position and the actual 

wages he earned in the position fairly and reasonably represented his wage-earning capacity. 

On September 28, 2010 the employing establishment informed appellant that, pursuant to 

the guidelines of the National Reassessment Process (NRP), it could no longer find any 

necessary tasks for him to perform that were within his restrictions. 

On September 29, 2010 appellant filed a recurrence of disability (Form CA-2a) due to the 

employing establishment’s withdrawal of his modified-duty position. 

OWCP developed appellant’s claim for compensation as a request for modification of its 

July 10, 2006 LWEC determination, and denied modification on July 8, 2011. 

 2

 Docket No. 11-2036 (issued August 29, 2012). 

3

 The job description stated that appellant’s duties and physical activities included manual sorting letter mail into 

a 77-hole case with a wing section utilizing a chair with back support or while standing at his option and loading 

ledge by using half trays or by manually taking portions of mail out of full trays and placing the mail on his ledge. 

Appellant was restricted from participating in the pull-down procedure or in dispatching equipment. 
3

After the August 29, 2012 remand by the Board in Docket No. 11-2036.4

 OWCP 

requested that appellant submit medical evidence and legal arguments to support modification of 

its July 10, 2006 LWEC determination. Appellant was afforded 30 days to submit this evidence. 

In a November 27, 2012 letter, counsel contended that the employing establishment had 

specifically tailored appellant’s job for him, it had not been open to the general public and was 

obviously a temporary job because they eliminated it after he returned to the job. 

In a decision dated January 8, 2013, OWCP denied modification of its July 10, 2006 

LWEC determination. It found that counsel’s November 27, 2012 letter had not established that 

the original LWEC determination was in error. 

By letter dated January 14, 2013 appellant, through counsel, requested a telephone 

hearing before an OWCP hearing representative. 

Following a preliminary review, on March 11, 2013 an OWCP hearing representative set 

aside the January 8, 2013 decision and remanded the case for OWCP to review the medical 

evidence of record to determine whether the LWEC determination was based on an actual bona 

fide position. 

By decision dated April 19, 2013, OWCP denied modification of the July 10, 2006 

LWEC determination. It found that counsel had provided no evidence to support the broad 

allegations that appellant’s modified clerk position was a makeshift position. OWCP found that 

the record contained sufficient documentation to support that it was a bona fide position and 

appellant had failed to establish any of the three criteria required to modify the LWEC decision. 

On April 23, 2013 appellant, through counsel, requested a telephone hearing by an 

OWCP hearing representative. 

In a September 5, 2013 prescription, Dr. Tristan Guevara, a Board-certified family 

practitioner, diagnosed back pain and ordered a chair with arms to support appellant’s back. 

A telephone hearing was held on September 11, 2013. 

Subsequent to the hearing, OWCP received a Merit Systems Protection Board (MSPB) 

supplemental stipulation and settlement agreement signed by appellant on April 19, 2013 

reflected that the terms of a prior settlement agreement (not in the record) was being modified. 

There is some reference to a prior payment of $35,000.00. 

In a December 3, 2013 decision, an OWCP hearing representative set aside the April 19, 

2013 decision and remanded the case for OWCP to make specific findings regarding whether 

appellant continued to have residuals and disability causally related to the accepted employment 

injuries, as required by FECA Bulletin 09-05 and previously ordered by the Board and the prior 

OWCP hearing representative. He also directed OWCP to determine whether appellant’s 

 4 Supra note 2. 
4

modified position was a bona fide position and to obtain a complete copy of the MSPB 

settlement agreement. 

On remand, OWCP sent the employing establishment a February 4, 2014 letter requesting 

all current medical evidence, copies of a job description and other documentation related to the 

position appellant had been working at the time he was sent home under NRP, whether his job 

duties had changed subsequent to the LWEC determination, and to provide a written statement 

addressing whether the position on which the LWEC determination was based was a bona fide

position at the time of the rating. It also requested that appellant submit any final determinations 

regarding the MSPB settlement agreement. 

The employing establishment provided the May 1, 2006 modified job offer which 

appellant had accepted on May 4, 2006. It also submitted a July 8, 2008 notice of personnel 

action (Form SF-50) effective July 5, 2008 changing a work status code and a September 3, 2008 

personnel action request noting appellant’s placement in a modified clerk position effective 

May 15, 2006. 

A November 7, 2005 work capacity evaluation (Form OWCP-5c) and July 3, 2008 duty 

status (Form CA-17) report of Dr. Bruce D. Abrams, a prior OWCP referral physician and 

Board-certified orthopedic surgeon, provided appellant’s work restrictions and noted that he had 

been released to full-time regular work with restrictions. 

In a February 27, 2006 report, Dr. Montgomery provided appellant’s permanent work 

restrictions. 

In an April 24, 2007 letter, Dr. Paul Malick, a Board-certified family practitioner, stated 

that appellant had a work-related herniated disc. He further stated that appellant’s residuals had 

resolved. In a May 11, 2007 Form CA-17 report, Dr. M. Malick reiterated his diagnosis of 

herniated disc. He advised appellant to resume full-time regular-duty work with restrictions on 

the date of his examination. 

A July 3, 2008 Form CA-17 report, Dr. Flura S. Dawde, a Board-certified family 

practitioner, provided a diagnosis of herniated disc. She noted that she had advised appellant to 

resume full-time regular-duty work with restrictions on May 11, 2007. 

A full copy of the October 31, 2012 MSPB stipulation and settlement agreement was 

received, in which the employing establishment agreed to, among other things, identify a 

full-time regular mail processing clerk position that could be modified and assigned to appellant, 

assuming he met certain conditions and pay him $35,000.00. 

In a March 17, 2014 decision, OWCP denied modification of the July 10, 2006 LWEC 

determination. It found that the medical evidence was sufficient to establish that appellant’s 

modified clerk position was a bona fide position and that the position fairly and reasonably 

represented his wage-earning capacity. 

By letter dated March 21, 2014, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. 
5

During a telephone hearing held on October 16, 2014, counsel reiterated that OWCP’s 

LWEC determination was erroneous as the job upon which the determination was made was not 

a bona fide job. He contended that appellant was sent home under the NRP because he did not 

have a classified job. Counsel stated that, if he had such a job, then a determination as to who 

was sent home would have been based on seniority. He claimed that appellant’s job was 

makeshift in nature as it was created to accommodate his disabilities following his work injury. 

Counsel further claimed that it was not comparable to his pre-injury job. Appellant stated that he 

did not bid on his modified job or have an opportunity to grieve the withdrawal of this job. 

In a December 23, 2014 decision, an OWCP hearing representative affirmed the 

March 17, 2014 decision. She found that the evidence established that there had not been a 

material change in appellant’s accepted conditions, that the position on which the LWEC 

decision was made was a bona fide position and not odd-lot or makeshift, and that he had not 

been retrained or vocationally rehabilitated. 

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

remains undisturbed until properly modified.5

OWCP procedures at Chapter 2.1501 contain provisions regarding the modification of a 

formal LWEC.6 The relevant part provides that a formal LWEC will be modified when: (1) the 

original rating was in error; (2) the claimant’s medical condition has changed; or (3) the claimant 

has been vocationally rehabilitated.7 OWCP procedures further provide that the party seeking 

modification of a formal loss of wage-earning capacity decision has the burden to prove that one 

of these criteria has been met.8

 Chapter 2.1501 further provides that FECA Bulletin No. 09-05 

should be consulted if the circumstances in the case indicate that the position in question may 

have been withdrawn (in whole or in part) as a result of NRP.9 

FECA Bulletin No. 09-05 outlines the procedures OWCP should follow when 

limited-duty positions are withdrawn pursuant to NRP. If OWCP has issued a formal 

wage-earning capacity determination, it must develop the evidence to determine whether a 

modification of that determination is appropriate.10 FECA Transmittal No. 13-09 provides 

information regarding updating Federal (FECA) Procedure Manual Chapters 2.814 to 2.816 and 

 5 Katherine T. Kreger, 55 ECAB 633 (2004). 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning Capacity, 

Chapter 2.1501 (June 2013). 

7 Id. at Chapter 2.1501.3(a) (June 2013). 

8 Id. at Chapter 2.1501.4 (June 2013). 

9 Supra note 6. 

10 FECA Bulletin No. 09-05 (issued August 18, 2009). 
6

2.1500 to 2.1501.11 OWCP procedures further provide that the party seeking modification of a 

formal LWEC decision has the burden to prove that one of these criteria has been met.12

OWCP procedures provide that factors to be considered in determining whether the 

claimant’s work fairly and reasonably represents his or her wage-earning capacity include the 

kind of appointment, that is, whether the position is temporary, seasonal, or permanent, and the 

tour of duty, that is, whether it is part time or full time.13 Further, a makeshift or odd-lot position 

designed for a claimant’s particular needs will not be considered suitable.14

ANALYSIS 

In its March 17 and December 23, 2014 decisions, OWCP denied modification of the 

July 10, 2006 LWEC determination. It found that the duties of the modified clerk position fairly 

and reasonably represented appellant’s wage-earning capacity, and that he had no loss in 

wage-earning capacity. OWCP stated that he had worked in this full-time position over 60 days 

and had demonstrated his ability to perform the duties of the position. The record established 

that appellant returned to work as a modified clerk on May 4, 2006 and worked at this position 

until September 28, 2010, when the employing establishment advised him that there was no work 

available to him within his restrictions and the job was withdrawn under NRP. 

Appellant subsequently filed a recurrence of disability on September 29, 2010, requesting 

compensation for wage loss as of September 28, 2010. OWCP properly found that appellant was 

not entitled to wage-loss compensation when he stopped work, as his wage-earning capacity had 

previously been established. As noted above, when the employing establishment has withdrawn 

a light-duty assignment, which accommodated appellant’s work restrictions and a formal wageearning capacity decision has been issued, the decision will remain in place, 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 erroneous.15

Appellant argued that the LWEC decision should be set aside because it was based on a 

position that was not bona fide and was therefore not suitable for an LWEC determination, 

pursuant to FECA Bulletin No. 09-05. This bulletin provides that the determination of whether a 

loss of wage-earning capacity was based on an actual bona fide position may be evinced by a job 

offer, Form SF-50, a classified position or formal position description, or the documentary 

evidence.16 Based on these guidelines, OWCP properly found that the modified clerk job was 

bona fide and not a makeshift or odd-lot position. The May 1, 2006 job offer which appellant 

 11 FECA Transmittal No. 13-09 (issued June 4, 2013). 

12 Supra note 8. 

13 Id. at Chapter 2.815.5.c(1) (June 2013). 

14 Id. at Chapter 2.815.5.c(2)(a) (June 2013). 

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

16 See also P.P., Docket No. 14-656 (issued December 18, 2014); T.P., Docket No. 14-1207 (issued 

November 7, 2014). 
7

accepted contained a clear position description, identified the title of the job, a set schedule, and 

the duties of the position. The duties of the modified clerk were clearly outlined in the job offer. 

It was not a temporary position. In fact appellant worked in this position for over four years. He 

has provided no evidence that he was unable to perform the duties of the modified position on 

the date the LWEC decision was issued. There is no indication that appellant needed assistance 

from his supervisor or his coworkers to fulfill the assigned duties of his position, or that he 

worked in a self-directed manner or schedule. The Board finds that OWCP has established that 

the position was a bona fide position. 

Further, the Board finds that appellant has not submitted medical evidence sufficient to 

establish that he was unable to perform the duties of his modified clerk position. In a 

prescription dated September 5, 2013, Dr. Guevara diagnosed back pain and ordered a chair with 

arms to support appellant’s back. It is well established that pain is a description of a symptom 

and not considered a compensable medical diagnosis.17 Moreover, Dr. Guevara did not 

specifically relate any diagnosed condition or total disability to the accepted employment 

injuries. Medical evidence that does not offer any opinion regarding the cause of an employee’s 

condition is of diminished probative value on the issue of causal relationship.18

The reports from Drs. Abrams, Malick, and Dawde predate the alleged period of total 

disability and do not relate any condition or disability to employment. None of the physicians 

provided an opinion stating that appellant was totally disabled as of September 28, 2010 due to a 

worsening of his accepted employment-related conditions.19 The Board finds that these reports 

are insufficient to meet appellant’s burden of proof to establish a material change in his 

work-related conditions. 

The evidence does not establish that appellant’s accepted work-related medical 

conditions have materially changed, that the original LWEC determination was in error, or that 

he had been retrained or otherwise vocationally rehabilitated. For these reasons, the Board finds 

that appellant has not established that the July 10, 2006 LWEC determination should be 

modified. 

The MSPB settlement agreement of 2012 is of no probative value to the issues before the 

Board. The Board has previously held that the decisions of other administrative agencies do not 

establish benefits under FECA.20

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP. 

 17 B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 8, 2008). 

18 See A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999). 

19 Id.

20 Daniel Deparini, 44 ECAB 657 (1993). 
8

CONCLUSION 

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

July 10, 2006 LWEC determination. 

ORDER 

IT IS HEREBY ORDERED THAT the December 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 20, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board