United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.D., Appellant

and

U.S. POSTAL SERVICE, SEATTLE 

PROCESSING & DISTRIBUTION CENTER, 

Seattle, WA, Employer

__________________________________________

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Docket No. 17-0921

Issued: December 7, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 22, 2017 appellant filed a timely appeal from an October 6, 2016 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 over the merits of this case.

ISSUE

The issue is whether appellant has established modification of the August 13, 2010 loss 

of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

OWCP accepted that on or before August 26, 2008 appellant, then a 56-year-old full-time 

mail handler, sustained a closed dislocation of a thoracic vertebra, thoracic sprain, closed 

 

1

5 U.S.C. § 8101 et seq. 
2

dislocation of a lumbar vertebra, lumbar sprain, right lateral epicondylitis, and right forearm pain

due to repetitive lifting, bending, and upper extremity motions in the performance of duty. He 

performed light-duty work with intermittent work absences through May 2009 and continuing. 

OWCP paid wage-loss compensation for intermittent work absences.

Beginning in November 2009, appellant worked as a modified mail handler, a limitedduty position, for three days a week, four hours a day, with no consecutive workdays. OWCP 

paid wage-loss compensation for the remaining 28 hours a week.

By decision dated August 13, 2010, OWCP determined that appellant’s actual wages as a 

modified mail handler for 12 hours a week fairly and reasonably represented his wage-earning 

capacity. It continued to issue compensation for the remaining 28 hours a week.

On February 5, 2011, pursuant to the National Reassessment Process (NRP), the 

employing establishment reduced appellant’s work schedule from 12 hours a week to 6 hours a 

week.2 He worked two hours a day on Monday, Wednesday, and Saturday. Appellant continued 

to perform the part-time, modified mail handler position through 2015 and continuing. He was 

paid compensation for 28 hours a week.

In a May 10, 2016 letter, appellant, through a union representative, requested assistance 

in obtaining back pay for the six hours a week excessed from his part-time schedule on

February 5, 2011.

By decision dated October 6, 2016, OWCP denied modification of the August 13, 2010 

LWEC determination. It found that appellant failed to establish that the original LWEC 

determination was in error, or that the accepted condition materially changed. OWCP reiterated

that the medical evidence failed to establish total disability for work from June 14 to July 29, 

2016 due to the accepted injuries.

LEGAL PRECEDENT

A wage-earning capacity 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.3 OWCP procedures contain provisions regarding 

the modification of a formal loss of wage-earning capacity.4 The relevant part provides that a 

formal loss of wage-earning capacity will be modified when: (1) the original rating was in error; 

 

2 On April 13, 2011 appellant claimed compensation (Form CA-7) for an additional six hours a week based on the 

reduction of his schedule. OWCP did not issue a final decision at that time adjudicating this specific claim. 

3

See Katherine T. Kreger, 55 ECAB 633 (2004).

4

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

2.1501 (June 2013).
3

(2) the claimant’s medical condition has materially changed; or (3) the claimant has been 

vocationally rehabilitated.5

OWCP procedures further provide that FECA Bulletin No. 09-05 should be consulted if 

the circumstances in the case indicate that the position in question may have been withdrawn (in 

whole or in part) as a result of NRP.6 FECA Bulletin No. 09-05 outlines the procedures OWCP 

should follow when limited-duty positions are withdrawn pursuant to NRP. If OWCP has issued 

a formal wage-earning capacity determination, it must develop the evidence to determine 

whether a modification of that determination is appropriate.7 FECA Transmittal No. 13-09 

provides information regarding updating FECA procedure manual Chapters 2.814 to 2.816 and 

2.1500 to 2.1501.8 OWCP procedures further provide that the party seeking modification of a 

formal loss of wage-earning capacity decision has the burden to prove that one of these criteria 

has been met.9

ANALYSIS

OWCP issued an August 13, 2010 LWEC determination, based on appellant’s actual 

earnings in a modified position for 12 hours a week. In his May 10, 2016 letter, appellant argued 

that the wage-earning capacity determination should be modified as the employing establishment 

partially withdrew his light-duty position.

The record indicates that on February 5, 2011, the employing establishment partially 

withdrew light duty pursuant to NRP, reducing appellant’s work schedule from 12 to 6 hours a 

week. It is well established that a withdrawal of a light-duty position is considered a recurrence 

of disability under OWCP’s regulations.10 As noted above, FECA Bulletin No. 09-05 was issued 

specifically to provide guidance when a claimant is sent home through NRP because light duty is 

no longer available.

When an LWEC determination has been issued, FECA Bulletin No. 09-05 requires 

OWCP to develop the evidence to determine whether a modification of the decision is 

appropriate.11 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contains

documentary evidence supporting that the position was an actual bona fide position, and to 

conduct appropriate medical development.12 Additionally, FECA Bulletin No. 09-05 states that 

 

5

Id. at Chapter § 2.1501.3(a).

6

Id. at Chapter § 2.1501.1.

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

8

FECA Transmittal No. 13-09 (issued June 4, 2013).

9

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1501.4 (June 2013).

10 See 20 C.F.R. § 10.5(x).

11 FECA Bulletin No. 09-05 (issued August 18, 2009); see also A.T., Docket No. 11-375 (issued 

September 19, 2012), N.F., Docket No. 13-0846 (issued July 3, 2013).

12 Id. at § I.A. 1-2.
4

OWCP may undertake further nonmedical development, such as requiring that the employing 

establishment address in writing whether the position on which the LWEC determination was 

based was a bona fide position at the time of the rating and direct the employing establishment to 

review its files for contemporaneous evidence concerning the position.13

The October 6, 2016 decision denying modification of the August 13, 2010 LWEC

determination does not refer to FECA Bulletin No. 09-05 or attempt to follow its provisions. 

There was no analysis of the appropriateness of the part-time, modified position on which the 

LWEC determination was based, or whether the February 5, 2011 partial withdrawal of that 

light-duty position entitled appellant to additional wage-loss compensation. The case will 

therefore be remanded to OWCP for a proper decision in accord with the established 

guidance. After such further development as OWCP deems necessary, it shall issue a de novo

decision.

On appeal appellant contends that he claimed compensation due to a lack of work 

available within his medical restrictions. He emphasizes that he did not assert a worsening of the 

accepted medical conditions. Rather, the employing establishment partially withdrew his lightduty position on February 5, 2011, reducing his work schedule from 12 hours a week to 6 hours a 

week. As explained above, the case will be remanded for additional development to comply 

with FECA Bulletin No. 09-05.

CONCLUSION

The Board finds that the case is not in posture for a decision.

 

13 Id. at § I.A.3.
5

ORDER

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

Compensation Programs dated October 6, 2016 is set aside, and the case remanded for additional 

development consistent with this decision and order.

Issued: December 7, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board