United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

White Pigeon, MI, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0244 

Issued: April 5, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 24, 2015 appellant, through counsel, filed a timely appeal from a June 26, 

2015 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 has established that the August 28, 2013 loss of wageearning capacity determination should be modified. 

FACTUAL HISTORY 

On November 29, 2006 appellant, then a 39-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 25, 2006 she sustained low back pain radiating 

into the right lower extremity in the performance of duty. OWCP accepted the claim and 

assigned file number xxxxxx336, for a temporary aggravation of nerve impingement due to a 

 1

 5 U.S.C. § 8101 et seq. 
2

disc extrusion and a temporary aggravation of a sequestered lumbar disc fragment. It determined 

that the conditions had resolved as of March 1, 2007.2

 Appellant stopped work on January 29, 

2006 and returned to work on March 15, 2007 as a customer service supervisor. 

OWCP previously accepted appellant’s July 13, 2005 occupational disease claim for an 

aggravation of a lumbar disc extrusion and displacement of an intervertebral disc under file 

number xxxxxx990. It additionally accepted that she sustained an exacerbation of nerve 

impingement and a sequestered lumbar disc fragment on September 10, 2009, assigned file 

number xxxxxx834. OWCP combined all of appellant’s claims under master file number 

xxxxxx990. 

On March 22, 2012 appellant underwent a spinal fusion at L4-S1, authorized by OWCP 

under file number xxxxxx834. Following her surgery, on May 10, 2013 the employing 

establishment offered her a position as a complaint and inquiry clerk effective May 20, 2013. 

The position required sitting, standing, and talking for five hours a day, and driving for three 

hours per day. The offer indicated that the assignment started May 20, 2013 and ended 

September 29, 2013. Appellant accepted the position on May 23, 2013. 

In a June 5, 2013 e-mail, the employing establishment advised OWCP that the complaint 

and inquiry clerk position beginning May 20, 2013 was an “open ended temporary detail, but 

may last indefinitely.” In an August 15, 2013 telephone call, the employing establishment stated 

that appellant was doing very well in the position and that it was “available indefinitely....” In a 

telephone call dated August 26, 2013, the employing establishment related that the job was not 

temporary and was effectively an internal rehabilitation position with the goal for her to 

“compete for better jobs in the future.” 

By decision dated August 28, 2013, issued in file number xxxxxx834, OWCP reduced 

appellant’s compensation to zero effective May 20, 2013 based on its determination that her 

actual earnings as a complaint and inquiry clerk fairly and reasonably represented her wageearning capacity. 

On October 3, 2014 appellant filed a claim for compensation (Form CA-7) requesting 

compensation for intermittent disability from September 20 to October 3, 2014 under file number 

xxxxxx336. On October 17 and November 3, 2014 she filed claims for compensation for 

intermittent disability from October 4 to 31, 2014. 

By letter dated October 17, 2014, OWCP noted that, under combined file number 

xxxxxx834, it had issued an August 28, 2013 loss of wage-earning capacity determination based 

on appellant’s work beginning May 20, 2013 as a complaint and inquiry clerk. It informed her 

of the evidence required to show that she sustained a recurrence of disability. 

 2

 By decision dated January 18, 2007, OWCP denied appellant’s claim after finding that the medical evidence 

was insufficient to show that she sustained a diagnosed condition as a result of the accepted work incident. On 

January 26, 2007 appellant requested an oral hearing before an OWCP hearing representative. Following a 

preliminary review, in a decision dated May 17, 2007, an OWCP hearing representative vacated the January 18, 

2007 decision and remanded the case for OWCP to obtain additional information from appellant’s attending 

physician. 
3

In a decision dated November 18, 2014, OWCP denied appellant’s claim for 

compensation as the medical evidence did not establish employment-related disability for the 

period in question. 

On November 20, 2014 appellant requested a telephone hearing. During the telephone 

hearing, held on May 20, 2015, she advised that beginning September 23, 2014 the employing 

establishment sent her to another office and did not provide her with work for a full day. 

Counsel argued that the position upon which OWCP based the loss of wage-earning capacity 

determination was makeshift in nature. He specified that she claimed compensation for lost 

hours during four pay periods, or eight weeks of work. 

By decision dated June 26, 2015, an OWCP hearing representative affirmed the 

November 18, 2014 decision as modified to show that appellant was entitled to wage-loss 

compensation for lost time from September 23 to October 31, 2014 as the employing 

establishment did not provide her with eight hours of work. He affirmed, however, the 

August 28, 2013 loss of wage-earning capacity determination after finding that there was no 

evidence the original rating was in error or that she experienced a material change in her 

accepted condition. 

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

remains undisturbed until properly modified.4

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.5

 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.6

When a formal loss of wage-earning capacity is in place and light duty is withdrawn, the 

proper standard of review is not whether appellant sustained a recurrence of disability, but 

whether OWCP should modify its decision according to the established criteria for modifying a 

formal loss of wage-earning capacity determination.7 OWCP procedures provide that when the 

employing establishment has withdrawn a light-duty assignment, which accommodated the 

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

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

5 Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000). 

6 Id. 

 7 See K.R., Docket No. 09-415 (issued February 24, 2010). 
4

claimant’s work restrictions and a formal wage-earning capacity decision has been issued, the 

decision will remain in place, unless one of the three accepted reasons for modification applies.8

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.9

 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.10 OWCP’s 

procedures provide that the offered position must correlate to the type of appointment held by the 

injured employee at the time of injury. Reemployment may not be the basis of a wage-earning 

capacity determination when the job is temporary where the employee’s job when injured was 

permanent.11 

ANALYSIS 

OWCP accepted that appellant sustained a temporary aggravation of a sequestered 

lumbar disc fragment and a temporary aggravation of nerve impingement due to a disc extrusion 

under file number xxxxxx336. She had previously sustained an aggravation of a lumbar disc 

extrusion and displacement of an intervertebral disc under file number xxxxxx990. On 

September 10, 2009 appellant experienced an exacerbation of nerve impingement and a 

sequestered lumbar disc fragment, assigned file number xxxxxx834. OWCP combined all claims 

under file number xxxxxx990. 

On March 22, 2012 appellant underwent a spinal fusion at L4 to S1, which OWCP 

authorized under file number xxxxxx834. Under that file number, by decision dated August 28, 

2013, OWCP reduced her compensation to zero effective May 20, 2013 after finding that her 

actual earnings as a complaint and inquiry clerk fairly and reasonably represented her wageearning capacity. Appellant filed claims for compensation from September 20 to October 31, 

2014 alleging that the employing establishment did not provide her with full-time employment 

during this period. In a decision dated June 26, 2015, an OWCP hearing representative 

determined that she was entitled to compensation for the periods of partial disability claimed 

from September 23 to October 31, 2014. He found, however, that appellant had not established 

modification of the August 28, 2013 loss of wage-earning capacity determination. 

Appellant did not argue that she sustained a material change in the nature and extent of 

her employment-related condition. Instead, counsel contended at the hearing that the loss of 

wage-earning capacity determination was erroneous as it was based on a makeshift position. 

 8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a)(5) (June 2013). 

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

10 Id. 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Earnings, Chapter 2.815.5.2(d) (June 2013); see also M.I., Docket No. 14-1784 (issued August 21, 2015). 
5

OWCP based its August 28, 2013 loss of wage-earning capacity determination on the 

position offered appellant in May 2013 by the employing establishment of complaint and inquiry 

clerk. The employing establishment specified, however, in the job offer that the position was 

available from May 20 through September 29, 2013. When determining whether earnings in 

alternative employment fairly and reasonably represent the employee’s wage-earning capacity, 

OWCP may not consider the work appropriate when the job is temporary and the employee’s 

previously held job was permanent.12 On June 5, 2013 the employing establishment informed 

OWCP by e-mail that the position was an open-ended, temporary detail that may last 

indefinitely. In a telephone call dated August 26, 2013, it advised that the position was not 

temporary but a rehabilitation position. There is no evidence, however, that the May 10, 2013 

offered position was formally classified as a permanent position.13 As a result, the Board finds 

that appellant has met her burden of proof to establish that the original August 28, 2013 loss of 

wage-earning capacity determination, issued under file number xxxxxx834, was in error. 

CONCLUSION 

The Board finds that appellant has met her burden of proof to establish that the 

August 28, 2013 loss of wage-earning capacity determination should be modified. 

 12 Id.; see also J.D., Docket No. 12-1026 (issued October 18, 2012). 

13 See M.I., supra note 11. 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 26, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed as to modification of the loss of wage-earning 

capacity determination. 

Issued: April 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board