United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.W., Appellant 

and 

U.S. POSTAL SERVICE, MARTVILLE POST 

OFFICE, Martville, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-0693 

Issued: January 12, 2016 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

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 February 6, 2014 appellant, through counsel, filed a timely appeal from August 16 

and October 23, 2013 merit decisions 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. 

ISSUES 

The issues are: (1) whether appellant has established that she sustained an aggravation of 

her preexisting employment-related emotional condition in the performance of duty; (2) whether 

OWCP properly reduced her compensation based on its finding that her actual earnings as a parttime flexible hub clerk fairly and reasonably represented her wage-earning capacity; and 

(3) whether appellant established that she sustained a recurrence of disability on and after 

October 5, 2002 as causally related to her accepted employment-related emotional condition. 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant’s counsel argues that appellant has established that her occupational 

disease claim was sustained in the performance of duty under File No. xxxxxx674. He also 

argues that she established a material worsening of this condition under File No. xxxxxx169. 

FACTUAL HISTORY 

Due to the complex nature of this case which involves two claims and various issues 

including a recurrence of disability, loss of wage-earning capacity determination, and 

aggravation of a preexisting emotional condition, a brief synopsis of facts are set forth as 

follows. 

The records from both claims establish that appellant had a preexisting condition of posttraumatic stress disorder (PTSD) due to her being molested as a child. On January 3, 1995 the 

man accused of molesting appellant entered her work site as a customer. Appellant filed an 

occupational disease claim and OWCP accepted aggravation of her PTSD under OWCP File No. 

xxxxxx169. To prevent further possible exposure to the man who molested her, on March 17, 

1999 appellant accepted a job transfer to the employing establishment. Appellant worked there 

until October 5, 2002 when she was exposed at work to a man who she believed was the nephew 

of the man who molested her as a child. This man shared the same last name, and strongly 

resembled her molester.2

 Appellant filed a claim for a recurrence of disability under her original 

claim. OWCP denied the recurrence claim finding that any further aggravation of her PTSD was 

the result of exposure to new work factors and, thus, unrelated to the accepted work factor, i.e. 

exposure at work to the man who abused her as a child. It also issued a retroactive loss of wageearning capacity decision based on her actual earnings. 

Appellant then filed a new occupational disease claim, assigned OWCP File No. 

xxxxxx674, alleging that she suffered an aggravation of PTSD when on October 5, 2002 she was 

exposed to a man with a strong resemblance and same last name as the man who had abused her 

as a child. OWCP continued to deny appellant’s claims for benefits under both claim numbers. 

The medical evidence from Dr. Teresa A. Miller, a treating Board-certified psychiatrist, 

described how appellant’s disability on and after October 5, 2002 was due to an aggravation of 

her PTSD due to her federal employment, i.e., exposure to a man with the same last name and 

strong resemblance of the man who abused her as a child, prior exposure to the molester at her 

work, and the associated sensory cues from the original traumatic injury. She explained that the 

exposure to the man who resembled appellant’s molester is not a new incident, but a continuation 

of the accepted employment incident under appellant’s first claim. The facts of the case are set 

forth below in greater detail. 

On October 5, 1998 appellant, then a 47-year-old part-time flexible distribution/window 

clerk filed an occupational disease claim alleging a post-traumatic stress disorder, anxiety, and 

depression as the man who had molested her as a child was a daily customer at the employing 

establishment whom she encountered and interacted with in her capacity as a window clerk. She 

 2

 The record, however, is otherwise unclear what relationship this man had to the man who molested appellant as 

a child. 
3

was working in the Memphis, NY station at the time.3

 Appellant noted that she first became 

aware of this condition on January 3, 1995, but did not realize it was employment related until 

May 22, 1998. 

On November 2, 1998 the employing establishment offered appellant a part-time flexible 

hub clerk position in Fulton, New York. It allowed her until November 13, 1998 to accept or 

decline the offer as it had to fill the position in a timely manner. Appellant ultimately declined 

the offer. 

On March 10, 1999 the employing establishment offered appellant the position of parttime flexible hub clerk in the employing establishment. On March 17, 1999 appellant accepted 

the job offer. 

By decision dated April 30, 1999, OWCP denied appellant’s occupational disease claim. 

Appellant requested reconsideration and submitted a witness statement from her brother 

who witnessed the alleged harassment. She also submitted a medical report from Dr. Miller 

dated December 9, 1998 in which Dr. Miller opined that appellant’s condition is directly related 

to reexposure to the trauma of her childhood. Dr. Miller noted that, prior to the January 3, 1995 

incident, appellant had none of her current symptoms and was able to function in her life. 

By decision dated February 3, 2000, OWCP vacated its April 30, 1999 decision denying 

appellant’s claim, and accepted the claim for PTSD. It paid her compensation benefits. 

By decision dated May 21, 2001, OWCP terminated appellant’s wage-loss compensation 

benefits finding that she had refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c). It 

explained that the employing establishment had made job offers to appellant, which she had 

declined. 

In a letter dated June 1, 2001, appellant requested an oral hearing before an OWCP 

hearing representative, which was held on February 26, 2002. 

By decision dated August 22, 2002, an OWCP hearing representative affirmed the 

May 21, 2001 decision. 

On November 7, 2002 OWCP received appellant’s undated request for reconsideration. 

By decision dated January 16, 2003, it denied modification. 

By letter dated February 27, 2003, appellant again requested reconsideration. In a 

decision dated October 14, 2004, OWCP denied reconsideration as the evidence submitted was 

insufficient to warrant further merit review. Appellant appealed that nonmerit decision to the 

Board. 

By order dated June 9, 2005, the Board set aside the October 14, 2004 nonmerit 

decision.4

 The Board found that OWCP had abused its discretion in denying appellant a review 

 3

 OWCP assigned File No. xxxxxx169. 

4 Order Remanding Case, Docket No. 05-581 (issued June 9, 2005). 
4

of the merits, as it waited approximately 19 months before issuing a nonmerit decision. The 

Board remanded the case to OWCP for further review consistent with the Board’s opinion. 

By decision dated October 4, 2005, OWCP denied modification after performing a merit 

review. On December 2, 2005 appellant again requested reconsideration. By decision dated 

April 4, 2006, OWCP again denied modification. 

In a February 23, 2007 order, the Board reversed OWCP’s April 4, 2006 decision, finding 

that OWCP improperly terminated appellant’s compensation under 5 U.S.C. § 8106(c).5

 The 

Board noted that OWCP failed to follow its procedures as it did not issue a suitability 

determination on the November 2, 1998 position or issue a 30-day letter informing her that the 

position was suitable and still available. Additionally, OWCP did not provide appellant an 

opportunity to either accept the position or provide an explanation for her refusal within the 

requisite time limitations. Moreover, it did not take into consideration that she had accepted 

another offered position. 

On June 9, 2010 appellant filed a claim for a recurrence of disability due to her accepted 

January 3, 1995 employment injury. She alleged that her disability began on October 4, 2002 as 

a result of exposure to the nephew of the man who had abused her as a child. Appellant alleged 

that she requested limited-duty work, which was denied by the employing establishment. 

In support of her claim for a recurrence of disability, appellant submitted an August 12, 

2010 report from Dr. Miller under OWCP File No. xxxxxx169. This report was also submitted 

under OWCP File No. xxxxxx674 in support of her new occupational disease claim as Dr. Miller 

provided a history and treatment of appellant’s condition under both claims. As Dr. Miller 

references treatment from the original injury to the date of appellant’s total disability in 2002, it 

is relevant to both claims. 

Dr. Miller detailed the treatment appellant had received for her PTSD since June 26, 1998 

and related that appellant was transferred from her original duty station due to exposure to her 

childhood abuser at the employing establishment on March 26, 1999. In September 2001 the 

alleged nephew of appellant’s childhood abuser requested that appellant hold his mail so that it 

could be picked up on Saturday from appellant. Due to the alleged nephew’s strong resemblance 

to appellant’s abuser, she began to have a recurrence of her PTSD. Dr. Miller noted that due to 

PTSD appellant was taken out of work from July 10 to August 6, 2002 and that on September 26, 

2002 she recommended that appellant not return to work. She opined that appellant’s symptoms 

had worsened to the extent that she could no longer perform her duties and that she is currently 

totally disabled. 

By decision dated September 1, 2010, OWCP found the evidence insufficient to establish 

that appellant sustained a recurrence of disability beginning October 5, 2002 causally related to 

her accepted employment injury. 

By decision dated September 2, 2010, OWCP issued a retroactive loss of wage-earning 

capacity decision (LWEC) based on appellant’s actual earnings as a part-time flexible (PTF) hub 

 5 Order Reversing Case, Docket No. 06-1155 (issued February 27, 2007). 
5

clerk at the employing establishment. It found that she worked in the position for over three 

years commencing March 27, 1999; that the employment fairly and reasonably represented her 

wage-earning capacity; and per the September 1, 2010 decision, the work stoppage “did not 

occur because of any change in the claimant’s injury-related condition affecting ability to work.” 

On September 3, 2010 appellant filed a claim for a recurrence of disability alleging that 

her request for light-duty work was denied. 

On September 21, 2010 appellant elected to receive Civil Service retirement benefits 

from the Office of Personnel Management in lieu of FECA benefits effective April 1, 2010. 

On October 4, 2010 appellant filed an occupational disease claim alleging aggravation of 

her preexisting employment-related PTSD.6

 She alleged that she first became aware of her 

condition on January 3, 1995, but did not realize that it was employment related until 

October 5, 2002. Appellant alleged that her PTSD was aggravated by exposure to a customer 

who she believed to be the nephew of an individual who had sexually abused her as a child as he 

shared the same last name and strongly resembled her abuser. On the back of the form, the 

employing establishment noted that she first reported the condition to a supervisor on 

November 2, 2010. 

By letter dated February 3, 2011, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim. Appellant was advised as to the medical and factual 

evidence required to establish her claim and was afforded 30 days to provide the requested 

information. OWCP noted that the evidence currently of record was insufficient to establish that 

she actually experienced the employment factor she alleged caused her injury. 

In response to questions posed by OWCP, appellant stated that she knows that the 

individual in question is the nephew of her abuser. She related that as she was the only clerk 

working on Saturdays she had to interact with the man by handing over mail he asked to be held 

instead of delivered on Saturdays. 

In an August 17, 2010 statement, a retired postmaster noted that appellant worked for him 

until the fall of 2001. It was at this time that he noticed her becoming teary and anxious as the 

weekend approached. Appellant informed him “that she was having a difficult time during the 

week and weekend” due to a man who looked like and was a relative of her abuser. This relative 

of her abuser was a customer at the post office where appellant worked. The retired postmaster 

noted that he waited on this individual during the week if appellant was there, but on Saturdays 

appellant had to have contact by handing over any held mail to him. In concluding, he related 

that appellant became increasingly distraught and unable to perform her job until she left the 

employing establishment in 2002. 

In a September 24, 2010 report, Dr. Miller indicated that appellant had been under her 

care since 1998.7

 She related that over the years the employing establishment had “taken on the 

 6

 OWCP assigned File No. xxxxxx674. 

7

 While this report was submitted under OWCP File No. xxxxxx674, it is relevant to the issues presented in 

OWCP File No. xxxxxx169. 
6

fact of yet another abuser,” due to the continual rejection of her claims for compensation and lost 

wages. Dr. Miller disagreed with OWCP’s characterizing appellant’s encounter with the nephew 

of her abuser as a new incident. She noted that the nephew’s “striking resemblance to the 

molester (particularly since his current age was near that of the molester’s at the time of the 

original abuse) perpetuates the original PTSD symptoms.” Thus, Dr. Miller concluded that this 

was not a new incident, but a continuation of the original incident. She related that appellant “is 

not responding to the nephew as a new source of PTSD: she is responding to the molester who 

that nephew so much resembles.” 

On March 11, 2011 the retired postmaster stated that appellant informed him that she had 

no problem with handing mail to the person appellant alleged to be the nephew of her assailant. 

By a May 3, 2011 decision, OWCP denied appellant’s claim that she sustained an 

emotional condition due to exposure to the nephew of the man who had abused her as a child. It 

found the evidence insufficient to establish that the event or injury occurred as alleged. 

In a fascimile dated August 22, 2011 and letter dated August 22, 2011, counsel requested 

reconsideration on the denial of appellant’s recurrence claim and the September 2, 2010 

retroactive LWEC. In support of the request, he submitted medical and factual evidence, 

including reports dated September 24, 2010 and June 18, 2011 from Dr. Miller. 

In a June 18, 2011 report, Dr. Miller noted that appellant was previously diagnosed with 

PTSD which was undisputed by OWCP. She noted that appellant’s chronic PTSD included all 

the symptoms as described in Criteria B of the DSM-IV-TR. Dr. Miller related that symptoms of 

this condition could be aggravated by sensory cues of sight, hearing, smell, taste or touch. 

According to Dr. Miller, appellant’s increased psychological distress occurred as a result of 

exposure while working at the employing establishment to a man with a strong resemblance and 

same last name as the man who had abused her as a child. She explained that appellant’s 

psychological reaction was due to “the exposure to external cues that symbolize and resemble an 

aspect of the traumatic event.” Dr. Miller related that appellant transferred to the employing 

establishment in March 1999, but unfortuantely the persistent stimuli continued and “aroused 

recollections of the orginal trauma, worsening her PTSD symptoms.” Due to the worsening of 

appellant’s PTSD, Dr. Miller determined that she was totally disabled from working, with 

October 4, 2012 as her last workday. In concluding, she opined that the recurrence of appellant’s 

PTSD “was directly related to the consequential injury of being reexposed to the man who 

severely sexually abused her as a child while working at the Memphis Post Office, 

January 3, 1995.” 

In a letter dated September 6, 2011, counsel requested reconsideration of the May 3, 2011 

OWCP decision and submitted medical and factual evidence. 

In a May 10, 2011 statement, appellant disagreed with the retired postmater’s statement 

that she had no problem handing mail to the man she believed to be the nephew of her abuser. 

She also alleged that his March 11, 2011 statement contradicted his earlier statement of 

August 17, 2010. 
7

In an undated statement, a coworker of appellant at the employing establishment, related 

seeing appellant become upset and agitated when a customer who was a relative of the man who 

abused her as a child entered the facility. The coworker noted working with appellant on 

Saturdays and that appellant had asked her serveral times to give the man his mail because she 

did not want to do it. 

By decision dated March 23, 2012, OWCP affirmed its May 3, 2011 decision. Appellant 

appealed this decision to the Board. 

In a letters dated May 7, September 12, 2012, March 17 and June 7, 2013, appellant’s 

counsel reiterated appellant’s request for reconsideration in File No. xxxxxx169. 

By order dated June 25, 2013, the Board set aside the March 23, 2012 decision denying 

appellant’s emotional condition claim and remanded the case for OWCP to combine OWCP File 

No. xxxxxx674 with OWCP File No. xxxxxx169.8

 The Board found that OWCP failed to follow 

its procedures when it failed to combine both claims as they involved a similar condition. On 

remand and after combining the two case records, OWCP was instructed to issue a de novo

decision on whether appellant established that she sustained an emotional condition in the 

performance of duty. 

On remand OWCP, as instructed by the Board, combined the two OWCP files, with File 

No. xxxxxx169 serving as the master file. 

By decision dated August 16, 2013, OWCP denied modification of the denial of 

appellant’s emotional condition claim under File No. xxxxxx674. 

By decision dated October 23, 2013, OWCP denied modification of its September 1 and 

2, 2010 decisions under File No. xxxxxx169 regarding the recurrence claim and LWEC, 

respectively.9 

LEGAL PRECEDENT -- ISSUE 1 

To establish a claim that he or she sustained an emotional condition in the performance of 

duty, an employee must submit the following: (1) medical evidence establishing that he or she 

has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or 

incidents alleged to have caused or contributed to his or her condition; and (3) rationalized 

medical opinion evidence establishing that the identified compensable employment factors are 

causally related to his or her emotional condition.10

 8 Order Remanding Case, Docket No. 12-1854 (issued June 25, 2013). 

9

 The Board notes that, following the October 23, 2013 decision, OWCP received additional evidence. However, 

the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 

C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 

ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

10 V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990). 
8

Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to an employee’s employment.11 There are situations where an injury or an 

illness has some connection with the employment but nevertheless does not come within the 

concept or coverage of workers’ compensation.12 Where the disability results from an 

employee’s emotional reaction to his or her regular or specially assigned duties or to a 

requirement imposed by the employment, the disability comes within the coverage of FECA.13 

On the other hand, the disability is not covered where it results from such factors as an 

employee’s fear of a reduction-in-force or his or her frustration from not being permitted to work 

in a particular environment or to hold a particular position.14 

ANALYSIS -- ISSUE 1 

Appellant alleged that her PTSD recurred as the result of being exposed to the nephew of 

the man who had sexually abused her as a child. OWCP found that she failed to submit 

sufficient factual evidence supporting her allegation. The issue on appeal is whether appellant 

has established a compensable factor of employment. 

The Board finds that OWCP did not make adequate findings of fact regarding whether 

the employment factor alleged by appellant constituted a compensable employment factor. In 

the June 25, 2013 order, the Board instructed it to combine appellant’s two emotional condition 

claims and issue a de novo decision on whether appellant established that she sustained an 

emotional condition in the performance of duty. 

However, in its August 16, 2013 determination, OWCP made no specific findings 

regarding the alleged employment factor and failed to provide a reason why it would not be 

considered a compensable employment factor. It also failed to conduct a de novo review as 

instructed by the Board. Rather, OWCP merely indicated in a general fashion that the factor 

alleged by appellant was not accepted as constituting a compensable employment factor and that 

modification of the denial of her claim was unwarranted. There was no discussion as to whether 

the allegation was supported by evidence or whether the allegation was outside the scope of 

coverage under FECA. In addition, the record contains new medical evidence from Dr. Miller 

which is relevant to the issue of whether appellant established a compensable factor, but it was 

not considered by OWCP in its determination. The record also contains statements relative to 

appellant’s contention which were not discussed by OWCP. 

In cases involving emotional conditions, the Board has held that, when working 

conditions are alleged as factors in causing a condition or disability, OWCP as part of its 

adjudicatory function must make findings of fact regarding whether working conditions alleged 

by appellant are deemed compensable factors of employment and are to be considered by a 

physician when providing an opinion on causal relationship and which working conditions are 

 11 L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006). 

12 A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005). 

13 5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

14 J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001). 
9

not deemed factors of employment and may not be considered.15 OWCP’s regulations direct that 

decisions shall contain findings of facts and a statement of reasons.16 The Board has held that 

the reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the 

precise defect of the claim and the kind of evidence which would overcome it. OWCP did not 

explain why the alleged incident was not compensable or what evidence was required to 

establish a compensable factor of employment with respect to the alleged incident. In denying 

appellant’s claim, it noted that no new evidence had been submitted and modification was 

unwarranted. 

On remand OWCP shall make findings of fact regarding whether the employment factor 

alleged by appellant is a compensable employment factor which would bring her claimed 

emotional condition within the performance of duty and whether the evidence of record 

establishes the existence of such a factor. After this and such further development as may be 

deemed necessary, OWCP will issue a de novo decision on appellant’s claim. 

LEGAL PRECEDENT -- ISSUE 2 

An injured employee who is either unable to return to the position held at the time of 

injury or unable to earn equivalent wages, but who is not totally disabled for all gainful 

employment, is entitled to compensation computed on loss of wage-earning capacity.17 An 

employee’s actual earnings generally best reflect his wage-earning capacity.18 Absent evidence 

that actual earnings do not fairly and reasonably represent the employee’s wage-earning 

capacity, such earnings must be accepted as representative of the individual’s wage-earning 

capacity.19 Compensation payments are based on the wage-earning capacity determination, and 

OWCP’s finding remains undisturbed until properly modified.20 

Factors to be considered in determining if a position fairly and reasonably represents the 

injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour 

of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part-time 

(unless the claimant was a part-time worker at the time of injury) or sporadic in nature; 

(3) whether the job is seasonal in an area where year-round employment is available; and 

(4) whether the job is temporary where the claimant’s previous job was permanent.21 

 15 V.W., 58 ECAB 428 (2007); Robert Breeden, 57 ECAB 622 (2006). 

16 20 C.F.R. § 10.126. See O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); Tonja R. Hiebert, 

55 ECAB 706 (2004) (it is a well-established principle that OWCP must make proper findings of fact and a 

statement of reasons in its final decisions).

17 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see W.B., Docket No. 09-934 (issued January 11, 2010); 

Alfred R. Hafer, 46 ECAB 553 (1995). 

18 H.N., Docket No. 09-1628 (issued August 19, 2010); J.C., 58 ECAB 700 (2007); Connie L. Potratz-Watson, 56 

ECAB 316 (2005); Hayden C. Ross, 55 ECAB 455 (2004). 

19 Id. 

20 See Harley Sims, Jr., 56 ECAB 320 (2005); Katherine T. Kreger, 55 ECAB 633 (2004). 

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.815.5 (June 2013). 
10

Additionally, a makeshift or odd-lot position designed to meet an injured employee’s particular 

needs will not be considered representative of one’s wage-earning capacity.22 

Assuming the position is both vocationally and medically suitable and conforms to the 

above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after she has successfully performed the required duties for at least 60 days.23 

ANALYSIS -- ISSUE 2 

OWCP accepted appellant’s claim for PTSD in OWCP File No. xxxxxx169. The 

question that arises is whether it was appropriate for OWCP to issue a retroactive LWEC 

determination on September 3, 2010 when appellant stopped work on October 5, 2002. On 

appeal, counsel argues that the medical evidence establishes that appellant’s work stoppage on 

October 5, 2002 was due to a worsening in appellant’s condition which was not considered. 

In reaching its LWEC determination on September 3, 2010, OWCP found that appellant 

had received actual earnings as a part-time flexible clerk beginning March 27, 1999, that she 

stopped work on October 5, 2002, and that she retired on medical disability. Prior to the decision 

appellant filed an August 12, 2010 medical report from Dr. Miller who opined that appellant’s 

condition had worsened so that she was unable to work. Appellant filed claims for a recurrence 

of disability beginning October 5, 2002 alleging that her work-related condition had materially 

worsened so that she was totally disabled. 

There are situations when a retroactive LWEC determination may be appropriate. As 

noted above, OWCP’s procedure manual provides that a retroactive determination may be made 

where the claimant worked in the position for at least 60 days, the employment fairly and 

reasonably represented the wage-earning capacity, and the work stoppage did not occur because 

of any change in the claimant’s injury-related condition affecting her ability to work.24

In the current case, OWCP issued its LWEC determination after it received evidence that 

appellant’s ability to work had changed such that she was totally disabled. In an August 12, 

2010 report, Dr. Miller opined that appellant’s work-related condition had worsened to the extent 

that she was totally disabled from working at the employing establishment. Thus, appellant 

alleged that her work stoppage and retirement on medical disability effective October 5, 2002 

had occurred as a result of a change in her injury-related condition. The Board notes that the 

procedure manual directs the claims examiner to request information from the claimant regarding 

the work stoppage and develop the record appropriately.25 There is no evidence that this 

necessary request occurred in this matter. OWCP should have adjudicated the recurrence claim 

 22 A.J., Docket No. 10-619 (issued June 29, 2010) (a makeshift/odd-lot position generally lacks a position 

description with specific duties, physical requirements and a work schedule). 

23 Supra note 19 at Chapter 2.815.5(e) (June 2013). 

24 Juan A. DeJesus, 54 ECAB 712 (2003). 

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

Actual Earnings, Chapter 2.815.7(c) (June 2013). 
11

for disability compensation on and after October 5, 2002, the date appellant retired on medical 

disability, based on the relevant medical evidence, rather than issuing a retroactive LWEC 

determination. Accordingly, the Board finds that it did not properly determine appellant’s 

LWEC in its September 3, 2010 determination.26 

CONCLUSION 

The Board finds the case is not in posture for a decision on the issue of whether appellant 

established that she sustained an emotional condition in the performance of duty under File No. 

xxxxxx674. Under File No. xxxxxx169, the Board finds that OWCP erroneously issued a 

retroactive wage-earning capacity decision after appellant submitted evidence supporting a 

change in her work-related condition and after she filed a recurrence claim. 

ORDER 

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

Compensation Programs dated October 23, 2013 is remanded and the August 16, 2013 decision 

is set aside and remanded for further proceedings consistent with the above opinion. 

Issued: January 12, 2016 

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 

 26 The Board finds that issue of whether appellant established a recurrence of disability under OWCP File No. 

xxxxxx169 is premature in light of the disposition of issue two, concerning a retroactive LWEC determination.