United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boise, ID, Employer 

__________________________________________ 

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Docket No. 15-710 

Issued: June 5, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 23, 2015 appellant filed a timely appeal from a July 28, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days 

has elapsed from the last merit decision dated May 6, 2013 and the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the 

Board lacks jurisdiction to review the merits of this case. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

501.3(e)-(f). One hundred and eighty days from July 28, 2014, the date of OWCP’s last decision was 

January 24, 2015. As this was a Saturday, the appeal would be timely if received on the next business day, Monday, 

January 26, 2015. Since using February 3, 2015, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is January 23, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

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

was not timely filed and did not demonstrate clear evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board. On August 25, 1999 appellant, then a 

46-year-old mail processor, filed a traumatic injury claim alleging that on August 22, 1999 he 

injured his back when he tried to grab a tray of mail that slipped from his hand. 

By decision dated June 5, 2001, the Board set aside November 1, 1999 and February 16, 

2000 OWCP decisions denying appellant’s traumatic injury claim.3 The Board remanded the 

case for further development of the medical evidence. On remand, OWCP accepted appellant’s 

claim for a herniated disc at L4-5 and L5-S1 and authorized a November 15, 1999 discectomy. 

On appeal to the Board for the second time, on February 7, 2005 the Board reversed a 

December 24, 2003 decision terminating appellant’s compensation effective September 9, 2002.4 

The Board found that he established a recurrence of total disability beginning September 9, 2002 

and was entitled to compensation for four hours of wage loss from that date until he resumed 

limited-duty employment on April 9, 2003. In a decision filed May 15, 2008, the Board reversed 

a March 9, 2007 decision terminating appellant’s authorization for medical benefits effective 

March 14, 2006.5 The Board found that the opinion of the impartial medical specialist was not 

based on an accurate statement of accepted facts and thus was insufficient to resolve the conflict 

in medical opinion. In an order dated March 5, 2010, the Board dismissed a purported appeal of 

an April 7, 2009 decision after finding that there was no appealable decision within its 

jurisdiction.6

 The facts and the circumstances from the prior decisions and order are hereby 

incorporated by reference. 

 In a decision dated May 6, 2013, OWCP reduced appellant’s compensation effective 

May 10, 2013 after finding that he had the capacity to earn wages of $539.60 per week in the 

selected positon of general clerk. 

 By letter dated February 25, 2014, appellant advised OWCP that he would be requesting 

reconsideration and asked for a copy of a March 12, 2013 letter from the employing 

establishment. He also requested copies of all letters from the employing establishment 

regarding his claim. 

 3

 Docket No. 00-2072 (issued June 5, 2001). 

4

 Docket No. 04-1283 (issued February 17, 2005). 

5

 Docket No. 07-2423 (issued May 15, 2008). 

6 Order Dismissing Appeal, Docket No. 09-1668 (issued March 5, 2010). 
3

In a response dated March 5, 2014, OWCP informed appellant that it was treating his 

February 25, 2014 letter as a request for a copy of the case record rather than a reconsideration 

request. On March 11, 2014 it provided him with a copy of the case record. 

By letter dated May 10, 2014, appellant questioned why OWCP provided him with the 

entire case record when he only asked for specific documents. He asserted that his request for 

reconsideration was timely because the envelope accompanying the May 6, 2013 decision was 

dated May 13, 2013. Appellant related that the size of the imaged record delayed his 

reconsideration request. 

On May 10, 2014 appellant requested reconsideration. He argued that OWCP based its 

determination, that the positon of general clerk was not medically suitable, on medical evidence 

from 2010 rather than on contemporaneous medical evidence. Appellant asserted that the 

medical evidence documented that his condition had worsened prior to the wage-earning 

capacity determination. He also argued that the positon of general clerk was not vocationally 

suitable because he lacked the necessary proficiency with computers. Finally, appellant 

contended that OWCP should have calculated his earning capacity based on entry level wages 

rather than average wages. 

In progress reports dated April 17 and May 16, 2014, Dr. James H. Bates, a Boardcertified physiatrist, diagnosed lumbosacral radiculopathy and back pain. 

By decision dated July 28, 2014, OWCP denied appellant’s request for reconsideration 

after finding that it was not timely filed and did not establish clear evidence of error. 

 On appeal appellant asserts that he cited specific errors in OWCP’s loss of wage-earning 

capacity determination finding that he could work as a general clerk. He maintains that the 

positon was not vocationally appropriate, that OWCP did not obtain a current medical opinion, 

and that OWCP used inaccurate wage information. Appellant indicates that his request was 

untimely because OWCP sent him too much information in response to his request for a copy of 

a letter from the employing establishment. 

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.7

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

remains undisturbed until properly modified.8

 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 

condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original 

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

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

determination was, in fact, erroneous.9

 The burden of proof is on the party attempting to show a 

modification of the wage-earning capacity determination.10 In addition, Chapter 2.1501 of 

OWCP procedures contains provisions regarding the modification of a formal loss of wageearning capacity.11

ANALYSIS 

The Board finds that the case is not in posture for decision. In a decision dated May 6, 

2013, OWCP reduced appellant’s compensation effective May 10, 2013 based on its finding that 

he had the capacity to work in the selected positon of general clerk earning wages of $539.60 per 

week. On May 10, 2014 appellant requested reconsideration, arguing that the positon was not 

vocationally suitable, that OWCP should have obtained a more recent medical opinion, and that 

it incorrectly determined the weekly wages he could earn in the position. 

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.12 Although 

appellant used the term reconsideration in his May 10, 2014 correspondence, he contended that 

OWCP committed error in its wage-earning capacity. The Board finds that the May 10, 2014 

letter from appellant constitutes a request for modification of the May 6, 2013 loss of wageearning capacity determination.13 The Board has held that, when a loss of 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 wageearning capacity is warranted.14 In its July 28, 2014 decision, however OWCP evaluated his 

request under the clear evidence of error standard applicable to untimely requests for 

reconsideration. The Board consequently remands the case to OWCP for proper adjudication, to 

be followed by a de novo decision. 

CONCLUSION 

The Board finds that OWCP should have adjudicated appellant’s May 10, 2014 request 

for reconsideration under the modification of loss of wage-earning capacity standard. 

 9

 20 C.F.R. § 10.511. 

10 See Stanley B. Plotkin, 51 ECAB 700 (2000). 

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

Chapter 2.1501 (June 2013). 

12 20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007). 

13 See E.L., Docket No. 14-1434 (issued March 18, 2015); M.N., Docket No. 10-51 (issued July 8, 2010). 

14 See W.W., Docket No. 09-1934 (issued February 24, 2010). 
5

ORDER 

IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: June 5, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board