United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.L., Appellant 

and 

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Norfolk, VA, Employer 

__________________________________________ 

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Docket No. 16-0072 

Issued: February 11, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On October 16, 2015 appellant filed an application for review of a July 22, 2015 decision 

of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as 

No. 16-0072. 

In August 1994, OWCP accepted that appellant, a clerk typist, sustained bilateral carpal 

tunnel syndrome due to the repetitive typing required by her job. It later accepted her claim for 

work-related bilateral tenosynovitis of the hands/wrists, bilateral localized primary osteoarthritis 

of the hands, and left radial styloid tenosynovitis. Appellant initially stopped work in 1994 and 

returned to work on September 29, 2014 as a print operator for a private printing business. On 

February 6, 2015 a formal loss of wage-earning capacity decision was issued, based upon 

appellant’s ability to work in this light-duty job. Appellant stopped working on or about May 15, 

2015, but she continued to receive OWCP compensation based on the February 6, 2015 wageearning capacity decision. In mid-May 2015, she claimed that she sustained a recurrence of 

disability due to the accepted employment injuries such that she was totally disabled beginning 
2

on or about May 15, 2015.1

 In a July 22, 2015 decision, OWCP denied appellant’s ostensible 

claim that the sustained a recurrence of disability on or about May 15, 2015. 

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 OWCP’s procedure manual provides, “If a formal 

loss of wage-earning capacity (LWEC) decision has been issued, and the claim is for recurrent 

disability, it should be processed in accordance with procedures for modifying a formal 

LWEC.”3

 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. The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.4

In this case, OWCP essentially determined that the issue presented was whether appellant 

had established a recurrence of disability on or about May 15, 2015. Under the circumstances of 

this case, however, the Board finds that the issue presented was whether the February 6, 2015 

wage-earning capacity determination should be modified. Appellant stopped work on or about 

May 15, 2015 and submitted evidence which indicated that she had worsening symptoms of her 

employment injuries. It is clear that the claim in this case was that appellant could not work in 

the print operator position, the position that OWCP determined had represented her wageearning capacity, for the foreseeable future. The Board has held that, when a wage-earning 

capacity determination has been issued and a claimant submits evidence alleged to show 

disability for work, OWCP must evaluate the evidence to determine if modification of wageearning capacity is warranted.5

 As noted, OWCP’s procedure manual directs the claims 

examiner to consider the criteria for modification when a claimant alleges recurrent disability. If 

there is a claim for increased disability that would prevent a claimant from performing the 

position that was the basis for a wage-earning capacity decision, then clearly there is an issue of 

whether modification is appropriate. The Board finds that OWCP should have considered the 

issue of modification of the wage-earning capacity determination.6

 

 1

 Appellant also submitted evidence which she believed showed that she could no longer work in her limited-duty 

position. For example, she submitted June 20 and 27, 2015 reports in which Dr. John T. Schwartz, an attending 

Board-certified orthopedic surgeon, indicated that she had worsening upper extremity problems related to the 

injuries she sustained as a clerk typist for her former federal employing establishment. 

2 See Sharon C. Clement, 55 ECAB 552 (2004). 

3

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013). 

4 Sue A. Sedgwick, 45 ECAB 211 (1993). 

5 See Katherine T. Kreger, 55 ECAB 633 (2004). The Board notes that consideration of the modification issue 

does not preclude OWCP from acceptance of a limited period of employment-related disability, without a formal 

modification of the wage-earning capacity determination. See id. 

6 See id. 
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The Board finds that appellant’s claim for compensation raised the issue of whether a 

modification of the February 6, 2015 wage-earning capacity decision was warranted and the case 

must be remanded for an appropriate decision on this issue. 

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

Compensation Programs dated July 22, 2015 is set aside and the case remanded for further action 

consistent with this order of the Board. 

Issued: February 11, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board