United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kenner, LA, Employer 

__________________________________________ 

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Docket No. 15-1749 

Issued: January 15, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 18, 2015 appellant filed a timely appeal from a merit decision of the Office of 

Workers’ Compensation Programs (OWCP) dated May 8, 2015. 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 a 

January 14, 2003 loss of wage-earning capacity determination. 

FACTUAL HISTORY 

This case has been previously before the Board. By decision and order issued on 

March 8, 2010 under File No. xxxxxx530, doubled under the present claim, the Board affirmed a 

February 17, 2009 OWCP decision finding an overpayment of compensation in the amount of 

 1

 5 U.S.C. § 8101 et seq. 
2

$253.07 for the period January 13 to 17, 2009.2 The facts and circumstances of the case as set 

forth in the Board’s prior decision and order are incorporated herein by reference. The relevant 

facts are set forth below. 

OWCP accepted that on May 3, 1991, appellant, then a 31-year-old clerk, sustained a 

closed dislocation of the left patella, internal derangement of the left knee, chondromalacia of the 

left patella, osteoarthritis of the left knee, bilateral wrist sprains, a left shoulder sprain, and right 

plantar fibromatosis. It assigned the claim File No. xxxxxx814. 

Under File No. xxxxxx530, OWCP accepted that, on or before February 4, 1997, 

appellant sustained bilateral carpal tunnel syndrome requiring left median nerve release. It also 

accepted that on August 23, 1999 she sustained cervical and lumbar strains, right hip, and right 

knee contusions due to a consequential fall related to the accepted left knee conditions.3 

Appellant received wage-loss compensation for periods of intermittent disability. She remained 

under treatment for the accepted orthopedic conditions, working light duty with intermittent 

absences. 

Dr. Charles L. Johnson, an attending Board-certified orthopedic surgeon, provided 

permanent work restrictions on August 1, 2002. He limited appellant to working four hours a 

day sedentary duty, with walking, and standing limited to one hour. 

On August 13, 2002 the employing establishment offered appellant a modified general 

clerk position with sedentary clerical duties. The position was classified as full time, but 

appellant would work only four hours a day due to her medical limitations. The job required 

sitting, walking, and standing up to four hours, no pushing, pulling, lifting, squatting, kneeling, 

or climbing. The position paid $400.80 a week. Appellant accepted the position on August 16, 

2002 and began work on August 19, 2002. 

By decision dated January 14, 2003, OWCP found that appellant’s actual earnings of 

$400.80 a week as a modified general clerk since August 19, 2002 fairly and reasonably 

represented her wage-earning capacity. It reduced her wage-loss compensation effective 

August 19, 2002. 

Appellant worked in a series of modified clerk positions under the same restrictions. She 

received compensation for intermittent work absences. Appellant remained under medical care 

for bilateral patellar grinding, lumbar radiculopathy, and bilateral carpal tunnel syndrome. 

OWCP placed her case on the periodic rolls effective October 1, 2006.4

 

 2

 Docket No. 09-1015 (issued March 8, 2010). 

3

 OWCP assigned the August 23, 1999 injury claim File No. xxxxx853. It doubled File Nos. xxxxx853 and 

xxxxxx530 under File No. xxxxxx814. 

4

 Appellant received treatment for a left shoulder injury sustained in an August 2007 consequential fall and left 

knee osteoarthritis. She claimed compensation for an absence from March 20 to 24, 2008. By decision dated 

December 30, 2008, OWCP denied the claim as appellant had failed to submit medical evidence documenting 

disability for the claimed period. 
3

On October 16, 2008 appellant underwent a right median nerve release. She received 

compensation for postsurgical work absences on the periodic rolls. On January 13, 2009 

appellant returned to work for four hours a day in a limited-duty position.5

 She received 

compensation for the remaining four hours a day. Appellant continued under medical care.6

 She 

continued working four hours a day light duty with periodic brief absences.7

 

A September 19, 2013 magnetic resonance imaging (MRI) scan showed a post-traumatic 

medical meniscus tear with loose body and ganglion cyst. Dr. Warren F. Bourgeois, III, an 

attending Board-certified orthopedic surgeon, recommended a left knee arthroscopy. He reduced 

appellant’s work schedule to two hours a day from November 26, 2013 through March 30, 2014. 

OWCP issued compensation for the remaining six hours a day. 

On March 31, 2014 Dr. Bourgeois performed an arthroscopic partial medial 

meniscectomy of the left knee with debridement, removal of loose body, removal of ganglion 

cyst, chondroplasty, and removal of a large osteophyte from the inferior patella. OWCP 

approved the procedures. It issued total disability compensation for the period March 7 to 

April 30, 2014. 

On April 30, 2014 Dr. Bourgeois renewed appellant’s permanent work restrictions. 

Appellant returned to work on May 1, 2014 for four hours a day in her prior modified-duty 

position. Dr. Bourgeois renewed her restrictions on September 13, 2014. 

In December 4 and 18, 2014 reports, Dr. Bourgeois diagnosed a flare up of posttraumatic arthritis of the left knee. He held appellant off work from December 4, 2014 to 

January 5, 2015 as she had give-way weakness and falls. Dr. Bourgeois administered Synvisc 

and Kenalog injections. Appellant returned to work for three hours a day on January 7, 2015, 

increased to four hours a day as of January 14, 2015. On January 26, 2015 Dr. Bourgeois found 

that she had attained maximum medical improvement. 

On March 6, 2015 appellant claimed wage loss for a period of total disability from 

November 29, 2014 to January 12, 2015 due to left knee pain and two falls. 

In a March 30, 2015 letter, OWCP advised appellant that as there was a standing loss of 

wage-earning capacity determination in her case, it would develop her wage-loss claim as one 

for modification of the loss of wage-earning capacity determination. It noted that Dr. Bourgeois 

did not explain that the accepted conditions worsened such that she could no longer perform her 

modified general clerk position. OWCP afforded appellant 30 days to submit such evidence. 

 5

 As of 1996, appellant’s physicians restricted her to working four hours a day. As there was a loss of wageearning capacity determination in place under File No. xxxxxx814 based on appellant’s actual earnings working four 

hours a day, OWCP considered appellant’s January 13, 2009 return to work as a resumption of full duty. 

6

 OWCP accepted that appellant sustained a consequential left wrist sprain due to a December 14, 2009 fall when 

appellant’s left knee gave way. Appellant was off work through January 3, 2010. 

7

 OWCP accepted consequential right shoulder and right foot injuries sustained in April and May 2012 when 

appellant’s left knee gave way again, causing her to fall. Appellant continued working light duty for four hours a 

day. 
4

In response, appellant submitted an April 8, 2015 letter, explaining that she did not 

request modification of the loss of wage-earning capacity determination. She intended to claim 

wage-loss compensation for a brief period of disability caused by a July 23, 2014 fall when her 

right knee locked.8

 

By decision dated May 8, 2015, OWCP denied modification of the January 14, 2003 loss 

of wage-earning capacity determination, finding that appellant had not met any of the three 

criteria for modification. It found that she had failed to establish that the original loss of wageearning capacity determination was in error, that she had been retrained or vocationally 

rehabilitated, or that her accepted conditions worsened such that she could no longer perform her 

modified carrier position. 

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.9

OWCP’s procedures provide that if a loss of wage-earning capacity determination has 

been issued, “[m]odification of such a determination is only warranted where the party seeking 

the modification establishes either that 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.” In this instance OWCP will need to evaluate the 

request according to these criteria.10 The burden of proof is on the party attempting to show a 

modification of the wage-earning capacity determination.11

The Board has held that OWCP may accept a limited period of disability without 

modifying a standing wage-earning capacity determination. This occurs where there is a 

demonstrated temporary worsening of a medical condition of insufficient duration and severity to 

warrant modification of a wage-earning capacity determination. This narrow exception is only 

applicable for brief periods of medical disability.12

ANALYSIS 

OWCP accepted that appellant sustained a closed dislocation of the left patella, internal 

derangement of the left knee, chondromalacia of the left patella, osteoarthritis of the left knee, 

bilateral wrist sprains, a left shoulder sprain, right plantar fibromatosis, bilateral carpal tunnel 

 8

 Appellant noted that OWCP accepted the condition that caused her knee to lock under File No. xxxxxx853. 

9 See Sharon C. Clement, 55 ECAB 552 (2004). Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 

ECAB 211 (1993). 

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

Chapter 2.1501.1 (June 2013). 

11 Sue A. Sedgwick, supra note 9. 

12 T.B., Docket No. 13-1772 (issued January 27, 2014). 
5

syndrome, cervical and lumbar strains, a right hip contusion, and right knee contusion. 

Beginning on August 19, 2002, appellant worked as a modified clerk for four hours a day. By 

decision dated January 14, 2003, OWCP found that her actual earnings as a modified clerk 

properly represented her wage-earning capacity. Appellant received wage-loss compensation for 

partial disability. 

On March 6, 2015 appellant claimed wage loss from November 29, 2014 to January 12, 

2015 due to worsened left knee pain. OWCP issued a May 8, 2015 decision denying 

modification of the standing loss of wage-earning capacity determination. The Board has held 

that, when a loss of wage-earning capacity determination has been issued, and appellant submits 

evidence with respect to disability for work, OWCP must evaluate the evidence to determine if 

modification of wage-earning capacity is warranted.13 

Appellant claimed that her accepted left knee condition worsened from November 29, 

2014 to January 12, 2015 such that she could not perform the modified clerk position on which 

the January 14, 2003 wage-earning capacity was based. She did not allege or establish that the 

original loss of wage-earning capacity determination was in error, or that she had been 

vocationally retrained or rehabilitated. Dr. Bourgeois, an attending Board-certified orthopedic 

surgeon, held appellant off work from December 4, 2014 to January 5, 2015 due to a flare up of 

post-traumatic osteoarthritis of the left knee with give-way weakness. He did not address her 

condition from November 29 to December 3, 2014. Also, Dr. Bourgeois did not explain the 

objective signs on clinical examination that indicated a worsening of the accepted osteoarthritis, 

or why these changes disabled appellant from her sedentary position. In the absence of such 

rationale, his opinion is insufficient to establish the claimed disability for work.14 

OWCP advised appellant by March 30, 2015 letter of the necessity of submitting medical 

evidence explaining how and why the accepted conditions worsened such that she was disabled 

from her modified-duty job. As appellant did not provide such evidence, OWCP’s May 8, 2015 

decision denying modification of the January 4, 2003 loss of wage-earning capacity 

determination was proper under the law and facts of this case. 

Appellant may request modification of the loss of wage-earning capacity determination 

supported by new evidence or argument, at any time before OWCP. 

CONCLUSION 

The Board finds appellant has not met her burden of proof to establish that a January 14, 

2003 loss of wage-earning capacity determination should be modified. 

 13 See supra note 9. The Board notes that consideration of the modification issue does not preclude OWCP from 

accepting a limited period of employment-related disability, without a formal modification of the loss of wageearning capacity determination. Id. at n.10, slip op. at 5; Cf. Elsie L. Price, 54 ECAB 734 (2003) (acceptance of 

disability for an extended period was sufficient to establish that modification of the loss of wage-earning capacity 

determination was warranted). 

14 Sue A. Sedgwick, supra note 9. 
6

ORDER 

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

Compensation Programs dated May 8, 2015 is affirmed. 

Issued: January 15, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board