United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

G.V. MONTGOMERY VETERANS MEDICAL 

CENTER, Jackson, MS, Employer 

__________________________________________ 

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Docket No. 15-222 

Issued: April 8, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 7, 2014 appellant filed a timely appeal from a May 13, 2014 nonmerit 

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 this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

the grounds that it was not timely filed and did not demonstrate clear evidence of error. 

On appeal appellant asserts that his physician recommended that he reduce his work 

hours by three to five hours each day but that his claims for compensation for the reduced 

schedule were denied. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On September 12, 2005 appellant, then a 53-year-old nursing assistant, filed an 

occupational disease claim alleging that he injured his back due to lifting heavy patients over 

many years. OWCP accepted the claim for lumbar sprain/strain, other affections of the right 

shoulder region, right plantar fascial fibromatosis, and aggravation of displaced lumbar discs at 

L3-4 and L4-5. On December 1, 2005 appellant underwent laminectomies and decompression at 

L3-4 and L4-5. He received appropriate compensation and returned to modified duty on 

May 1, 2006. 

By decision dated May 30, 2007, OWCP found that appellant’s actual earnings of 

$654.23 per week as a medical support assistant fairly and reasonably represented his wageearning capacity and reduced his compensation accordingly. In a July 3, 2008 decision, it 

amended its May 30, 2007 decision because it was based on incorrect pay information provided 

by the employing establishment. On July 18, 2008 appellant had additional back surgery at T10-

11 with placement of a dorsal column stimulator. He received appropriate compensation and 

returned to modified duty on August 1, 2008. In decisions dated August 17 and November 18, 

2009, and March 17, 2010, OWCP denied appellant’s claims for brief periods of compensation. 

Appellant continued to work. 

On April 29, 2010 appellant was granted a schedule award for 36 percent impairment of 

the right leg. By decision dated September 24, 2012, OWCP noted that he had filed multiple 

claims for intermittent compensation for the period May 24 through July 29, 2012 and denied 

modification of the wage-earning capacity determination. Appellant requested reconsideration, 

and in a January 11, 2013 decision, OWCP again denied modification of the wage-earning 

capacity determination. 

On April 29, 2014 appellant again requested reconsideration. He indicated that two years 

previously he was told by his physician that he should reduce his work hours. In support of his 

request, appellant submitted treatment notes and disability slips from Dr. Lori Hill Marshall, 

Board-certified in anesthesiology and pain medicine, dated June 18, 2012 to February 3, 2014, 

and a functional capacity evaluation dated June 7, 2013. 

By decision dated May 13, 2014, OWCP denied appellant’s request on the grounds that it 

was untimely and failed to demonstrate clear evidence of error. 

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.2 Section 10.511 of OWCP regulations provide that 

if a formal loss of wage-earning capacity decision has been issued, the rating is left in place until 

that determination is modified by OWCP. Modification is only warranted where the party 

seeking modification establishes a material change in the nature and extent of the injury-related 

 2 Katherine T. Kreger, 55 ECAB 633 (2004). 
3

condition, the employee has been retrained or otherwise vocationally 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 In addition, Chapter 2.1501 of 

OWCP procedures contain provisions regarding the modification of a formal loss of wageearning capacity.5

ANALYSIS 

The Board finds this case is not in posture for decision. By decision dated May 30, 2007, 

amended on July 3, 2008, OWCP found appellant’s actual earnings fairly and reasonably 

represented his wage-earning capacity. Following OWCP’s July 3, 2008 decision, in decisions 

dated August 17 and November 18, 2009 and March 17, 2010, OWCP denied his claims for brief 

periods of compensation. In decisions dated September 24, 2012 and January 11, 2013, it denied 

modification of the wage-earning capacity determination. Appellant requested reconsideration 

on April 29, 2014. In support of his request, he submitted medical evidence. In a nonmerit 

decision dated May 13, 2014, OWCP denied his request for reconsideration, finding that it was 

untimely and failed to demonstrate clear evidence of error. 

It is well established that a claimant may establish that a modification of a wage-earning 

capacity is warranted if there is a material change in the nature and extent of an injury-related 

condition, or a showing that the original determination was, in fact, erroneous.6 Although 

appellant’s April 29, 2014 correspondence used the term “reconsideration,” he contended that his 

medical condition had changed such that he could no longer work a full day. The Board finds 

that his April 29, 2014 communication offer constitutes a request for modification of the July 3, 

2008 wage-earning capacity determination.7 The Board has held that, when a wage-earning 

capacity determination has been issued and appellant submits evidence with respect to one of the 

criteria for modification, OWCP must evaluate the evidence to determine if modification of 

wage-earning capacity is warranted.8 In this case, appellant asserted that his medical condition 

had changed, and he submitted medical evidence to support this assertion. However, rather than 

evaluating whether he established modification of the wage-earning capacity, OWCP in its 

May 13, 2014 decision evaluated his request as an untimely request for reconsideration under the 

clear evidence of error standard. 

The Board finds that OWCP should have adjudicated appellant’s April 29, 2014 letter, in 

which he asserted that his medical condition had changed, as a request for modification of the 

 3

 20 C.F.R. § 10.511. 

4 Stanley B. Plotkin, 51 ECAB 700 (2000).

5

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

2.1501 (June 2013). 

6 P.C., 58 ECAB 405 (2007). 

7 See M.N., Docket No. 10-51 (issued July 8, 2010). 

8 W.W., Docket No. 09-1934 (issued February 24, 2010). 
4

wage-earning capacity determination.9

 The Board will, therefore, remand the case to OWCP for 

proper adjudication, to be followed by an appropriate merit decision to preserve his appeal rights. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for reconsideration. 

ORDER 

IT IS HEREBY ORDERED THAT the May 13, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further proceedings 

consistent with this decision of the Board. 

Issued: April 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 F.B., Docket No. 09-99 (issued July 21, 2010); see also M.D., Docket No. 12-1317 (issued December 21, 2012).