United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.L., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

RESERVES, Fort McCoy, WI, Employer 

__________________________________________ 

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Docket No. 15-0763 

Issued: March 28, 2016 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

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 February 18, 2015 appellant, through counsel, filed a timely appeal from 

December 16, 2014 and February 9, 2015 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.2 

ISSUES 

The issues are: (1) whether OWCP properly reduced appellant’s compensation to zero 

based on its determination that his actual wages as a limited-duty tools and parts attendant, 

effective October 7, 2014, fairly and reasonably represented his wage-earning capacity; and 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the February 9, 2015 OWCP decision and on appeal, appellant 

submitted new evidence. The Board, however, is precluded from reviewing evidence which was not before OWCP 

at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). 
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(2) whether appellant established that modification of the loss of wage-earning capacity (LWEC) 

determination was warranted. 

On appeal counsel contends that the LWEC decision should be set aside because it was 

based on a position that was not bona fide and, therefore, not suitable for an LWEC 

determination. He argues that although the tools and parts attendant position was a classified 

position it cannot be used to determine an LWEC because the lifting requirement was modified 

from 40 pounds to conform to appellant’s physical restrictions of 10 pounds. 

FACTUAL HISTORY 

OWCP accepted that on January 14, 2014 appellant, a 50-year-old full-time heavy mobile 

equipment repairer, sustained a closed fracture of the left metacarpal bone while removing a 

fender in the performance of duty. 

In an August 11, 2014 report, Dr. Mark Brenner, an orthopedic surgeon and appellant’s 

attending physician, determined that appellant had reached maximum medical improvement and 

provided the following permanent restrictions: no lifting with the left hand of objects greater 

than 10 pounds. 

On October 6, 2014 the employing establishment offered appellant a permanent, limitedduty position with a full-time schedule of eight hours per day, five days a week. The position 

was titled a tools and parts attendant. The duties included receiving, storing, identifying, and 

issuing tools, parts, and equipment used by shop personnel. The physical requirements did not 

require lifting over 10 pounds with the left hand. Appellant accepted the job offer on October 7, 

2014, which was to be effective October 19, 2014. The Notification of Personnel Action form 

(SF-50) from the Office of Personnel Management also indicated that the position had an 

effective date of October 19, 2014. 

By decision dated December 16, 2014, OWCP reduced appellant’s compensation to zero 

based on its determination that his actual wages as a limited-duty tools and parts attendant which 

appellant accepted on October 7, 2014, fairly and reasonably represented his wage-earning 

capacity. 

On January 6, 2015 appellant, through counsel, requested reconsideration.3

By decision dated February 9, 2015, OWCP denied modification of its December 16, 

2014 wage-earning capacity determination. 

LEGAL PRECEDENT -- ISSUE 1 

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 wage-earning 

capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and, 

                                                             3

 On February 4, 2015 appellant, through counsel, requested a schedule award. By decision dated March 26, 

2015, OWCP granted appellant a schedule award for one percent permanent impairment of the left hand. 
3

in the absence of evidence showing that they do not fairly and reasonably represent the injured 

employee’s wage-earning capacity, must be accepted as such measure.4

 

OWCP procedures state that, after a claimant has been working for 60 days, it will make 

a determination as to whether actual earnings fairly and reasonably represent wage-earning 

capacity.5

 The formula for determining loss of wage-earning capacity based on actual earnings, 

developed in the Albert C. Shadrick decision,6 has been codified at section 10.403 of OWCP 

regulations. OWCP first calculates an employee’s wage-earning capacity in terms of percentage 

by dividing the employee’s earnings by the current pay rate for the date-of-injury position.7

 

ANALYSIS -- ISSUE 1 

The Board finds that OWCP did not meet its burden of proof to reduce appellant’s 

compensation to zero. 

By decision dated December 16, 2014, OWCP reduced appellant’s compensation to zero, 

finding that his actual earnings as a limited-duty tools and parts attendant fairly and reasonably 

represented his wage-earning capacity. The Board finds that OWCP’s December 16, 2014 wageearning capacity decision was erroneous. OWCP procedures provide that a wage-earning 

capacity determination should not be made until the injured employee has completed 60 days of 

employment.8

 The record establishes that on October 6, 2014 the employing establishment 

offered appellant a full-time, limited-duty position as a tools and parts attendant with restrictions 

of no lifting over 10 pounds with the left hand. Appellant accepted the job offer on 

October 7, 2014. However, the position was not effective until October 19, 2014. The 

Notification of Personnel Action form (SF-50) from the Office of Personnel Management further 

establishes that the limited-duty position had an effective date of October 19, 2014. There is no 

evidence in the record supporting that appellant worked in the position offered by the employing 

establishment for more than 60 days prior to OWCP’s December 16, 2014 decision.9

 

Consequently, OWCP failed to establish that appellant performed the job for at least 60 days 

prior to its wage-earning capacity determination. 

The Board, therefore, finds that OWCP failed to follow its established procedures as it 

did not show that appellant performed the limited-duty tools and parts attendant position 

                                                             4 See Dennis E. Maddy, 47 ECAB 259 (1995). 

5 See L.J., Docket No. 14-0970 (issued August 21, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment: Determining Wage-Earning Capacity, Chapter 2.815.5 (June 2013) and Chapter 2.814.7(c) 

(October 2009). 

6

 5 ECAB 376 (1953). 

7

 20 C.F.R. § 10.403(d). 

8 See supra note 6. 

9 See W.D., Docket No. 11-0157 (issued September 8, 2011) (the Board reversed OWCP’s decision as there was 

no evidence in the record supporting that the employee worked in any position offered by the employing 

establishment for more than 60 days prior to its October 11, 1995 LWEC determination). 
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consistently for 60 days.10 Thus, OWCP failed to meet its burden to reduce appellant’s 

compensation to zero and its December 16, 2014 wage-earning capacity determination will be 

reversed. 

CONCLUSION 

The Board finds that OWCP improperly reduced appellant’s compensation to zero based 

on its determination that his actual wages as a limited-duty tools and parts attendant fairly and 

reasonably represented his wage-earning capacity.11 

ORDER 

IT IS HEREBY ORDERED THAT the December 16, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: March 28, 2016 

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 

                                                             10 See L.M., Docket No. 10-0949 (issued December 1, 2010). 

11 In view of the Board’s decision, the issue regarding modification of the LWEC determination is moot.