United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.F., Appellant 

and 

DEPARTMENT OF THE NAVY, PUBLIC 

WORKS CENTER, San Diego, CA, Employer 

__________________________________________ 

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Docket No. 17-0739 

Issued: June 6, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 14, 2017 appellant filed a timely appeal from a January 30, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the last merit decision dated June 24, 2015, to the filing of this appeal, pursuant to 

the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error. 

On appeal appellant asserts that she was not aware that a reduction in her compensation 

would be permanent when she assisted an elderly neighbor with paying his bills and acting as his 

power-of-attorney after he was admitted to a nursing home facility. She contends that she was 

not aware that a time element was involved when she agreed to help her neighbor. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the prior decision are incorporated herein by reference. The facts relevant to the instant appeal 

are set forth. 

OWCP accepted that on May 2, 1978 appellant, then a 41-year-old warehouseman, 

sustained a back sprain and exacerbation of preexisting congenital lumbar spondylosis without 

myelopathy as a result of picking up a box of paper in the performance of duty. She stopped 

work on May 3, 1978 and returned to work on August 1, 1978. Appellant stopped work again on 

February 5, 1979 and has not returned to work at the employing establishment. She underwent 

authorized lumbosacral fusion on July 24, 1979.3

 OWCP paid medical benefits and wage-loss 

compensation. 

In an April 17, 2012 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective May 5, 2012. It found that the weight of the medical evidence 

rested with the February 27, 2012 medical opinions of Dr. Jonathan D. Black, a Board-certified 

orthopedic surgeon and OWCP referral physician, that appellant’s accepted lumbar strain had 

resolved, her spondylolisthesis had been successfully surgically treated, and she could perform 

sedentary work duties with restrictions related to her nonwork-related conditions. 

Appellant requested an oral hearing, which was held on April 10, 2013. 

In a decision dated June 12, 2013, an OWCP hearing representative affirmed the 

April 17, 2012 decision. He found that the medical opinion of Dr. J. Mandume Kerina, an 

attending Board-certified orthopedic surgeon, that appellant continued to be disabled due to her 

accepted work condition of exacerbation of preexisting congenital lumbar spondylosis without 

myelopathy, was insufficient to outweigh Dr. Black’s opinion. The hearing representative noted 

that his opinion was not based on a thorough review of the medical record and was not supported 

by objective findings and adequate medical rationale. 

Appellant requested reconsideration on April 7, 2014. 

By decision dated May 2, 2014, OWCP denied modification of its termination decision. 

It found that Dr. Kerina’s March 31, 2014 report was not sufficiently rationalized to outweigh 

the weight accorded to Dr. Black’s report or to create a conflict in the medical opinion evidence. 

On May 21, 2014 appellant, through counsel, filed an appeal before the Board. In a 

decision dated November 25, 2014, the Board reversed OWCP’s termination of appellant’s 

compensation finding that a conflict existed in the medical opinion evidence between Drs. Black 

 

 2 Docket No. 14-1304 (issued November 25, 2014). 

3

 On January 5, 1982 appellant was involved in a nonwork-related motor vehicle accident. She was hospitalized 

from January 5 to 18, 1982 for recurrent lumbar disc syndrome. In January 1993 appellant sustained a back injury 

while getting into her car. She was unable to walk for six days. On February 19, 1983 appellant’s legs gave out as 

she got up from a seated position and fell to the ground. She was unable to walk for several days. In 

December 1984 appellant reinjured her back in a second nonwork-related motor vehicle accident. 
3

and Kerina as to whether appellant had continuing residuals and disability causally related to her 

accepted May 2, 1978 employment injuries. 

Appellant signed a Form EN1032 on February 12, 2015 indicating that she had received 

$200.00 a week since December 2013 from her incapacitated 93-year-old neighbor. She related 

that he had appointed her power-of-attorney. Appellant paid her neighbor’s bills and was the 

contact person for his nursing home. She noted that she would continue to receive payments 

from him until his death. 

 In a June 24, 2015 decision, OWCP reduced appellant’s wage-loss compensation 

effective December 1, 2013 based on its finding that her actual wages as a caretaker of $200.00 

per week fairly and reasonably represented her wage-earning capacity. It noted that, because she 

had shown the ability to perform the duties of the position for 60 days, the position was 

considered suitable to her partially disabled condition. OWCP then applied the Shadrick formula 

to calculate appellant’s loss of wage-earning capacity (LWEC).4

 This calculation showed that, 

effective December 1, 2013, she had a 29 percent wage-earning capacity. The payment of wageloss compensation every four weeks was reduced to $1,467.00. 

In letters dated March 29 and June 26, 2016, appellant informed OWCP that her neighbor 

died on March 3, 2016 and as of that date, she no longer received any remuneration from him or 

his estate. She requested a review of her status. In response to these letters, OWCP, on 

December 6, 2016, informed appellant that her compensation benefits had been restored and no 

further action was necessary on her part. 

On January 10, 2017 OWCP further advised appellant that its LWEC determination was 

not automatically canceled because her neighbor had died. It advised that the decision was 

permanent and instructed her to exercise the appeal rights that accompanied her decision. 

In an appeal request form dated January 13, 2017, received on January 17, 2017, 

appellant, through a checkmark, requested reconsideration. 

By decision dated January 30, 2017, OWCP denied appellant’s January 13, 2017 

reconsideration request because it was untimely filed and failed to demonstrate clear evidence of 

error. 

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.5

 Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.6

 Section 10.511 of OWCP regulations provide that 

if a formal LWEC decision has been issued, the rating is left in place until that determination is 

 4 Albert C. Shadrick, 5 ECAB 376 (1953). 

5 See 5 U.S.C. § 8115 (determination of wage-earning capacity). 

6 Sharon C. Clement, 55 ECAB 552 (2004). 
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modified by OWCP. Modification is only warranted where the party seeking modification 

establishes 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.7

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

modification of the wage-earning capacity determination.8

 In addition, Chapter 2.1501 of 

OWCP procedures contains provisions regarding the modification of a formal LWEC.9

ANALYSIS 

The Board finds that the case is not in posture for decision. In a decision dated June 24, 

2015, OWCP reduced appellant’s compensation effective December 1, 2013 based on its finding 

that her actual wages as a caretaker fairly and reasonably represented her wage-earning capacity. 

On January 13, 2017 appellant requested reconsideration because her neighbor had died and she 

would no longer receive the additional compensation. 

It is well established that a claimant may request a modification of a wage-earning 

capacity if there is a material change in the nature and extent of an injury-related condition, or a 

showing that the original determination was, in fact, erroneous.10 Although appellant indicated 

with a checkmark on her January 13, 2017 appeal request form that she was requesting 

reconsideration, she was in essence requesting a modification in her wage-earning capacity 

determination. The Board finds that the January 13, 2017 appeal request form from appellant 

constituted a request for modification of the June 24, 2015 LWEC determination.11 The Board 

has held that, when an LWEC determination has been issued and appellant submits evidence 

with respect to one of the criteria for modification, OWCP must evaluate the evidence to 

determine if modification of wage-earning capacity is warranted.12 In its January 30, 2017 

decision, however, OWCP evaluated her request under the clear evidence of error standard 

applicable to untimely requests for reconsideration. The Board consequently remands the case to 

OWCP for proper adjudication, to be followed by a de novo decision. 

CONCLUSION 

The Board finds that OWCP should have adjudicated appellant’s January 13, 2017 

request for reconsideration under the modification of LWEC standard. 

 7

 20 C.F.R. § 10.511. 

 8 See Stanley B. Plotkin, 51 ECAB 700 (2000). 

9

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

Chapter 2.1501 (June 2013). 

 10 20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007). 

11 See A.C., Docket No.15-710 (issued June 5, 2015); E.L., Docket No. 14-1434 (issued March 18, 2015); M.N., 

Docket No. 10-51 (issued July 8, 2010). 

12 See W.W., Docket No. 09-1934 (issued February 24, 2010). 
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ORDER 

IT IS HEREBY ORDERED THAT the January 30, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: June 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board