United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.I., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Palm Springs, CA, 

Employer 

__________________________________________ 

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Docket No. 14-1784 

Issued: August 21, 2015 

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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 11, 2014 appellant, through counsel, filed a timely appeal of a July 8, 2014 

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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to modify OWCP’s 

December 15, 2011 loss of wage-earning capacity determination. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On April 15, 2003 appellant, then a 47-year-old transportation security screener, filed a 

traumatic injury claim alleging that on that date she injured her left shoulder pushing a heavy 

bag. She began working as a transportation security screener in November 2002. By decision 

dated May 28, 2003, OWCP accepted appellant’s claim for left shoulder sprain. It also accepted 

the additional condition of left shoulder impingement syndrome and approved arthroscopic 

surgery on October 7, 2003. Appellant underwent a left shoulder arthroscopy with resection of 

the subacromial bursa and the coracoacromial ligament as well as a subacromial decompression 

and distal clavicle excision on November 20, 2003. She underwent a second left shoulder 

arthroscopy on September 21, 2005 due to a full thickness tear of the supraspinatus tendon and 

left shoulder resection of the subacromial bursa. 

Appellant accepted a temporary light-duty assignment on December 25, 2005 performing 

duties as an exit lane monitor, line monitor, divestiture, and recomposure. Her attending 

physician, Dr. Frank B. Giacobetti, a Board-certified orthopedic surgeon, later indicated on 

January 23, 2006 that she could return to modified duty with no over-the-shoulder use of her left 

arm. Appellant accepted a light-duty assignment on January 9, 2006 as an exit lane monitor. On 

September 24, 2007 Dr. Giacobetti indicated that appellant should not lift more than five pounds. 

On September 30, 2008 appellant accepted a temporary light-duty assignment with no 

grasping, manipulation, or lifting over the left shoulder. Dr. Giacobetti completed work status 

reports in March through June 2009, diagnosing bilateral carpal tunnel syndrome and indicating 

that appellant could perform modified duty with no forceful gripping or grasping of her left hand 

and no overhead use of her left arm. 

On June 23, 2009 the employing establishment submitted a copy of appellant’s temporary 

limited-duty assignment as a travel document checker working full time five days a week. This 

position required appellant to check a passenger’s travel documents and photo identification 

prior to allowing them to enter the sterile area. The position was identified as sitting and 

requiring repetitive use of the hands. Appellant was required to perform visual inspection of 

identification badges to determine validity (expired and altered) as well as performing pat down 

searches and bag checks. The physical activities were sitting, walking, standing continuously for 

eight hours a day, lifting and carrying up to five pounds continuously for eight hours a day, 

twisting, bending, squatting, kneeling, and utilizing steps and stairs continuously for eight hours 

a day and no grasping manipulation, or reaching over the left shoulder. Appellant accepted this 

limited-duty assignment on June 23, 2009. 

On August 5, 2009 the employing establishment provided appellant with the temporary 

limited-duty assignment of travel document checker. This position requested appellant to 

perform visual inspection of identification badges to determine the validity and to perform pat 

down searches and bag checks. The position required sitting and repetitive use of the hands. 

The position noted that she could not lift or carry with her left hand or grasp manipulate with her 

left hand or reach over her left shoulder. Appellant accepted this temporary position on 

August 10, 2009. 
3

On forms dated June 6 and July 11, 2011 Dr. Giacobetti diagnosed bilateral carpal tunnel 

syndrome and indicated that appellant could perform light-duty effective July 11, 2011 with no 

lifting more than five pounds and no work over the shoulder. 

By decision dated December 15, 2011, OWCP determined that appellant’s position of 

transportation security officer, “E band,” with wages of $737.57 per week fairly and reasonably 

represented appellant’s wage-earning capacity. It stated that she began working in her current 

position on August 5, 2009 and that she had held the position for more than two months. 

On January 20, 2012 the employing establishment stated that it was unable to offer 

appellant an adequate job offer due to the lack of medical documentation. In a telephone 

memorandum dated February 1, 2012, it advised OWCP that it wished to terminate appellant 

because she would never return to full duty. 

Dr. Giacobetti provided continuing consistent work restrictions of no lifting over five 

pounds and no over the shoulder use of the left arm due to appellant’s left shoulder condition on 

April 16 and October 15, 2012. Appellant underwent a left carpal tunnel release. 

In a telephone memorandum dated December 5, 2012, OWCP noted that the employing 

establishment could no longer provide appellant with light-duty work. In a letter dated 

February 1, 2013, the employing establishment asked that appellant provide medical 

documentation regarding her ability to perform the required physical duties of her position. On 

February 27, 2013 Dr. Giacobetti indicated that appellant could perform modified duties with no 

lifting over five pounds and no over the shoulder work on the left. By letter dated May 7, 2013, 

the employing establishment informed OWCP that appellant was separated from service on 

May 3, 2013 as she was not medically qualified for her transportation security officer position. 

On May 22, 2013 appellant filed a claim for compensation requesting wage-loss 

compensation from May 4, 2014. In a letter dated June 26, 2013, OWCP informed appellant that 

as a formal loss of wage-earning capacity decision had been issued in her claim, the claim for 

compensation would be treated as a request for modification of the formal loss of wage-earning 

capacity decision. It allowed appellant 30 days to submit evidence forming the basis for 

modifying her loss of wage-earning capacity determination. Counsel responded on July 24, 2013 

and stated that the position upon which the loss of wage-earning capacity determination was 

based was make shift and not a position open to the general public. 

By decision dated November 15, 2013, OWCP denied appellant’s claim for 

compensation benefits finding that she had not established that the December 15, 2011 loss of 

wage-earning capacity determination, based on the position of travel document checker, should 

be modified. It stated that the position of travel document checker was not a make-work 

position, but work done as part of her date-of-injury position. OWCP further found that 

appellant had not submitted medical evidence establishing a material change in her injury-related 

condition. 

Counsel requested an oral hearing before an OWCP hearing representative on 

November 22, 2013. He submitted the April 24, 2013 notice of proposed removal from the 

employing establishment to appellant. This document stated that appellant did not meet the 
4

medical guidelines for a transportation security officer position as she was permanently 

medically restricted from lifting more than five pounds. The employing establishment stated that 

transportation security officers must meet and maintain the ability to repeatedly lift up to 70 

pounds. It stated that an individual may not be deployed as a security screener unless he or she 

meets all of the physical qualifications and that appellant was medically disqualified to be a 

transportation security officer. Counsel also provided the job analysis tool for transportation 

security officers which included the ability to repeatedly lift and carry items weighing up to 70 

pounds. 

Appellant appeared at the oral hearing on May 19, 2014. Counsel argued that the original 

loss of wage-earning capacity determination was in error and that the employing establishment 

terminated appellant’s employment as a transportation security officer rather than a travel 

document checker which was a light-duty job reserved for people with disabilities. He also 

noted that appellant’s claim for carpal tunnel syndrome had been accepted. Appellant testified 

that the position of travel document checker was a special position for injured employees. She 

stated that the travel document checker position was originally a rotated position that all 

transportation security officers had to perform, but as more employees were injured, then the 

injured employees would perform these duties. Counsel noted that the original loss of wageearning capacity decision did not address the difference between appellant’s date-of-injury 

position and her modified position upon which her loss of wage-earning capacity determination 

was based. 

By decision dated July 8, 2014, an OWCP hearing representative affirmed the 

November 15, 2013 decision of OWCP. He found that the position of travel document checker 

was not makeshift or odd-lot as it contained a specific title, work schedule, limitations as to use 

of appellant’s left arm, and duties consistent with transportation security. The hearing 

representative further found that the medical evidence did not establish that appellant had 

sustained a material change in her injury-related condition such that she could no longer perform 

the duties of a travel document checker. 

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.

2

 Compensation for loss of wage-earning capacity is based upon loss of the capacity to 

earn and not on actual wages lost.3

 Compensation payments are based on the wage-earning 

capacity determination, which remains undisturbed until properly modified.4 

Modification of a standing wage-earning capacity determination is not warranted unless 

there is a material change in the nature and extent of the injury-related condition, the employee 

 2

 5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971) 

(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence 

of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity). 

3 K.R., id.; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503, 505 (1984). 

4 See Sharon C. Clement, 55 ECAB 552, 557 (2004). 
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has been retrained or otherwise vocationally rehabilitated, or the original determination was 

erroneous.5

 OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity 

decision has been issued, the rating should be left in place unless the claimant requests 

resumption of compensation for total wage loss. In this instance, the claims examiner will need 

to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.6

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

wage-earning capacity determination.7

 

When a formal loss of wage-earning capacity determination 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.8

 OWCP procedures provide 

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

accommodated the 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.9

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.10 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.11 OWCP’s 

procedure manual provides 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.12

 5 Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965). 

6

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

Decisions, Chapter 2.1501.4(a) (June 2013). 

7 Selden H. Swartz, 55 ECAB 272, 278 (2004). 

8 K.R., supra note 2; K.R., Docket No. 09-28 (issued September 16, 2009); Debbie A. Titus, Docket No. 05-360 

(issued June 3, 2005). 

9

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

Decisions, Chapter 2.1501.7 (June 2013). 

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

11 Id. 

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

Earnings, Chapter 2.815.5.2(d) (June 2013). 
6

ANALYSIS 

At the time of her April 15, 2003 employment injury, the record indicates that appellant 

was a permanent employee who commenced working in the position of transportation security 

screener in November 2002. OWCP accepted appellant’s claim for left shoulder sprain, left 

shoulder impingement syndrome and approved two arthroscopic shoulder surgeries. Appellant 

initially returned to temporary light-duty work on December 25, 2005. She accepted the 

temporary position of travel document checker on August 10, 2009. Appellant worked in this 

position until the employing establishment terminated her employment from the position of a 

transportation security officer on May 3, 2013. According to the evidence of record, the position 

of travel document checker was within appellant’s restrictions as provided by her physician, 

Dr. Giacobetti. Appellant does not appear to argue that there was a material change in the nature 

and extent in the employment-related condition. In addition, she does not argue that she has 

been retrained or vocationally rehabilitated. 

Appellant, through counsel, argues that the original loss of wage-earning capacity 

determination was in error as it was based on a makeshift position or odd-lot position which 

could not be used to support the loss of wage-earning capacity determination. Appellant noted 

that the employing establishment terminated appellant’s employment as transportation security 

officer not a travel document checker. 

OWCP based its loss of wage-earning capacity determination on the August 10, 2009 

position of travel document checker. The employing establishment, however, specifically 

provided in its job offer that the offered position was temporary. 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 previous job was permanent.13 The record does not support that appellant’s date-ofinjury position was temporary and there is no evidence that the August 10, 2009 limited-duty 

assignment was formally classified as a permanent position. As a result, appellant has met her 

burden to establish that the original December 15, 2011 wage-earning capacity determination 

was in error. 

The Board finds that OWCP failed to follow its established procedures as it based the 

December 15, 2011 loss of wage-earning capacity determination on a temporary travel document 

checker position that appellant accepted on August 10, 2009. 

CONCLUSION 

The Board finds that appellant has met her burden of proof to modify OWCP’s 

December 15, 2011 loss of wage-earning capacity determination as it was improperly based on a 

temporary position.

 13 J.D., Docket No. 12-1026 (issued October 18, 2012); K.V., Docket No. 11-145 (issued July 22, 2011). 
7

ORDER 

IT IS HEREBY ORDERED THAT July 8, 2014 decision of the Office of Workers’ 

Compensation Programs is reversed. 

Issued: August 21, 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