United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.G., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, Washington, DC, Employer 

__________________________________________ 

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Docket No. 16-1434 

Issued: June 26, 2017 

Appearances: Case Submitted on the Record

Jacqueline Shanahan, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 30, 2016 appellant, through counsel, filed a timely appeal from a June 1, 2016 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to modify OWCP’s June 15, 2011 

loss of wage-earning capacity determination. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The facts as presented in the Board’s 

prior decision are incorporated herein by reference. The relevant facts appear below. 

In a February 15, 2013 decision,3 the Board affirmed OWCP’s March 1, 2012 decision, 

finding that OWCP had properly adjusted appellant’s compensation to zero effective June 5, 

2011 based on his ability to earn wages in the constructed position of operations manager.4

 The 

Board determined that OWCP had properly relied on the professional assessment of appellant’s 

vocational rehabilitation counselor in finding that he was vocationally able to perform the 

operations manager position and that it was reasonably available within his commuting area.5

 

The Board further found that OWCP properly determined that appellant could physically 

perform the duties of the operations manager position.6

On July 15, 2013 appellant, through counsel, requested reconsideration of his claim. He 

submitted several reports from attending physicians. In March 14, 2012 and January 3, 2013 

work capacity evaluation form reports (Form OWCP-5c), Dr. Wood indicated that appellant 

must perform sedentary duty with the ability to sit or stand at will.7

 He advised that appellant 

could work on a full-time basis with these conditions. In a January 5, 2013 narrative report, 

Dr. Wood noted that appellant could only return to sedentary work for eight hours per day with 

the ability to sit and stand at will and that he could not lift, carry, push, or pull more than 20 

pounds. In an April 2, 2013 narrative report, Dr. Sharmila Mudgal, an attending Board-certified 

occupational medicine physician, determined that appellant could work in a full-time position 

 3

 Docket No. 12-1218 (issued February 15, 2013). 

 4

 OWCP accepted that on June 1, 2006 appellant, then a 63-year-old logistical support worker, sustained a tear of 

the horn of his right knee posterior meniscus and a sprain/strain of his right knee. The accepted conditions were 

later expanded to include cervical radiculopathy. Appellant stopped work on June 5, 2006 and did not return. He 

underwent OWCP-approved right knee surgery, including meniscectomy, on November 6, 2006. Appellant received 

disability compensation on the daily rolls beginning July 23, 2006 and on the periodic rolls beginning July 8, 2007. 

On February 16, 2010 appellant was referred to an OWCP-sponsored vocational rehabilitation program and his 

vocational rehabilitation counselor later found that he could work in the constructed position of operations manager, 

a position bearing the official title “Manager, Operations” in the U.S. Department of Labor’s Dictionary of 

Occupational Titles (DOT). The position was classified as sedentary in the DOT, and it required occasional lifting 

of up to 10 pounds and brief periods of standing and walking. 

5

 Appellant’s vocational rehabilitation counselor made a determination that the operations manager position was 

reasonably available in appellant’s commuting area according to the State Employment and Training Office and she 

noted that position openings were also identified on the internet. She found that appellant was vocationally capable 

of performing the position, noting that he had a Master of Business Administration degree with 27 years of 

experience as an operations specialist in the transportation field. 

6

 On March 11, 2011 Dr. Robert Wood, an attending Board-certified orthopedic surgeon, determined that 

appellant could work eight hours per day performing sedentary duty work and the Board found that this opinion 

showed that he could physically work as an operations manager. The Board also found that OWCP properly denied 

appellant’s subpoena request. In a June 14, 2013 order, Docket No. 16-1434 (issued June 14, 2013), the Board 

denied appellant’s petition for reconsideration of the February 15, 2013 decision. 

7

 In the January 3, 2013 report, Dr. Wood noted that appellant could lift, push, and pull up to 20 pounds, but that 

he could not engage in squatting or kneeling. 
3

that was mostly sedentary with no significant lifting, carrying, bending, stooping, or twisting. 

She noted that appellant needed to change his position at will for comfort. 

In an August 29, 2013 decision, OWCP found that it had properly adjusted appellant’s 

compensation to zero effective June 5, 2011 based on his ability to earn wages in the constructed 

position of operations manager. 

On October 15, 2013 appellant, through counsel, requested reconsideration of OWCP’s 

August 29, 2013 decision. He submitted additional reports of Dr. Wood. In a January 6, 2013 

Form OWCP-5c, Dr. Wood noted that appellant could perform sedentary work for eight hours 

per day with the ability to sit and stand at will. In a January 6, 2014 narrative report, he advised 

that appellant could perform sedentary activities as indicated by Dr. Mudgal in early-2013. 

In a March 12, 2014 decision, OWCP denied modification of its August 29, 2013 

decision, noting that it had properly adjusted appellant’s compensation effective June 5, 2011 

based on his ability to earn wages in the constructed position of operations manager. 

On March 9, 2015 OWCP received a request for reconsideration of OWCP’s March 12, 

2014 decision. Counsel argued on behalf of appellant that OWCP improperly adjusted his 

compensation effective June 5, 2011 based on his ability to earn wages in the constructed 

position of operations manager. She also argued that previously submitted medical evidence 

produced after June 5, 2011 showed that appellant had an increased disability that prevented him 

from working in the constructed position of operations manager. A second copy of the request 

for reconsideration was received by OWCP on March 9, 2015. 

In an April 17, 2015 decision, OWCP denied appellant’s request for reconsideration of 

the merits of his claim because his request was untimely filed and failed to demonstrate clear 

evidence of error. It found that his reconsideration request was untimely, indicating that it was 

received on March 9, 2015, more than one year after OWCP’s March 12, 2014 decision. OWCP 

then found that the evidence and argument submitted by appellant in support of his 

reconsideration request did not demonstrate clear evidence of error in its March 12, 2014 

decision. 

In a February 8, 2016 decision,8

 the Board set aside OWCP’s April 17, 2015 decision 

finding that, in its April 17, 2015 decision, OWCP improperly determined that appellant had 

filed an untimely request for reconsideration of its March 12, 2014 decision. The Board found 

that his reconsideration request was in fact timely because it was received on March 9, 2015, a 

date less than one year after OWCP’s March 12, 2014 decision. The Board remanded the case to 

OWCP for consideration of appellant’s timely reconsideration request under the standards for 

timely reconsideration requests, to be followed by the issuance of an appropriate decision. 

In a June 1, 2016 decision, OWCP denied modification of its March 12, 2014 decision, 

noting that OWCP properly adjusted appellant’s compensation effective June 5, 2011 based on 

his ability to earn wages in the constructed position of operations manager. 

 

 8 Docket No. 16-0038 (issued February 8, 2016). 
4

LEGAL PRECEDENT 

Under section 8115(a) of FECA, wage-earning capacity is determined by the actual 

wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning 

capacity, or if the employee has no actual earnings, his wage-earning capacity is determined with 

due regard to the nature of his injury, degree of physical impairment, usual employment, age, 

qualifications for other employment, the availability of suitable employment, and other factors 

and circumstances which may affect his wage-earning capacity in his disabled condition.9

 

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor 

market under normal employment conditions.10 The job selected for determining wage-earning 

capacity must be a job reasonably available in the general labor market in the commuting area in 

which the employee lives.11

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.12 The burden of proof is on 

the party attempting to show a modification of the loss of wage-earning capacity determination.13 

ANALYSIS 

The Board finds that this case must be remanded to OWCP for further development 

because OWCP has not considered the question of whether appellant met his burden of proof to 

modify OWCP’s June 15, 2011 loss of wage-earning capacity determination. 

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

met its burden of proof to adjust appellant’s compensation, effective June 5, 2011, based on his 

ability to earn wages in the constructed position of operations manager. Under the circumstances 

of this case, however, the Board finds that the issue presented was whether appellant met his 

burden of proof to modify OWCP’s June 15, 2011 loss of wage-earning capacity determination. 

As noted above, the question of whether a given claimant has met his or her burden of 

proof to modify a loss of wage-earning capacity determination involves a three-prong standard.14 

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 

 

 9 E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C. § 8115(a). 

10 Albert L. Poe, 37 ECAB 684, 690 (1986). 

11 Id.

12 C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004). 

13 See T.M., Docket No. 08-975 (issued February 6, 2009). 

14 See supra note 12. 
5

injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated 

or the original determination was, in fact, erroneous.15 With respect to the third prong of this 

test, the Board notes that it affirmed OWCP’s March 1, 2012 decision, finding that OWCP had 

properly adjusted appellant’s compensation to zero effective June 5, 2011 based on his ability to 

earn wages in the constructed position of operations manager. The Board determined in that case 

that OWCP had properly found that appellant was vocationally and physically able to perform 

the operations manager position and that it was reasonably available within his commuting area. 

The Board has held that, when a wage-earning capacity determination has been issued 

and a claimant submits evidence with respect to disability for work, OWCP must evaluate the 

evidence to determine if modification of wage-earning capacity is warranted.16 In this case, 

appellant submitted medical evidence, including reports from his attending physicians, 

Drs. Wood and Mudgal, which he claimed showed an increased disability that prevented him 

from working in the constructed position of operations manager. The burden of proof to modify 

OWCP’s June 5, 2011 loss of wage-earning capacity determination would be on appellant as he 

is the party requesting modification.17

The Board finds that appellant’s claim for compensation raised the issue of whether he 

met his burden of proof to modify OWCP’s June 15, 2011 loss of wage-earning capacity 

determination. The case is remanded to OWCP for further development, including a 

determination of whether appellant met his burden of proof to modify OWCP’s June 15, 2011 

loss of wage-earning capacity determination. After carrying out this development, OWCP shall 

issue a de novo decision on this matter. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

met his burden of proof to modify OWCP’s June 15, 2011 loss of wage-earning capacity 

determination. 

 15 Id.

16 See generally 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 loss of wage-earning capacity determination. See id. 

17 See supra note 13. 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 1, 2016 decision of the Office of Workers’ 

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with this decision. 

Issued: June 26, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board