United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dayton, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1659 

Issued: July 14, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On August 16, 2016 appellant, through counsel, timely filed an application for review of 

a June 30, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). The 

Board docketed the appeal as No. 16-1659. 

Appellant, an 84-year-old former letter carrier, has an accepted traumatic injury claim for 

aggravation of degenerative disc disease postlaminectomy at C5-6 and strain on preexisting 

neurological condition, which arose on June 26, 1979.2 He stopped work for various periods and 

received compensation on the periodic rolls beginning June 16, 2002. Appellant participated in a 

 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) (2014). 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 (2006). Demands for 

payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for 

investigation. 

2

 Appellant previously injured his neck/upper back on August 25, 1976, which OWCP accepted for upper back 

strain (xxxxxx528). 
2

vocational rehabilitation program and, in August 2014, his rehabilitation counselor determined 

that he was capable of earning $360.80 per week as a receptionist.3

On May 18, 2015 OWCP issued a formal loss of wage-earning capacity (LWEC) 

determination based upon appellant’s ability to earn wages in the selected position of 

receptionist. Consequently, it adjusted appellant’s compensation effective May 16, 2015. 

Counsel requested a telephonic hearing with an OWCP hearing representative, which was held 

on January 15, 2016. 

By decision dated February 25, 2016, the hearing representative affirmed OWCP’s 

May 18, 2015 LWEC determination. 

In a March 22, 2016 letter, which OWCP received on March 24, 2016, appellant 

indicated that he was requesting reconsideration of OWCP’s February 25, 2016 decision. In 

connection with his claim, he submitted evidence that he believed showed he could no longer 

work as a receptionist. 

In a March 16, 2016 report, Dr. Jason Higey, an attending Board-certified cardiologist, 

reported that appellant’s cardiac condition, including coronary artery disease and valvular heart 

disease, had worsened in severity. 

In a March 21, 2016 report, Dr. Antony T. Jacob, an attending physical medicine and 

rehabilitation physician, indicated that appellant’s physical condition prevented him from sitting 

for more than 15 minutes at time, looking at a computer screen or holding a telephone for any 

length of time, or lifting above his waist level. He further noted that appellant was currently 

unable to engage in any kind of gainful employment. 

In an April 4, 2016 letter that OWCP received on April 7, 2016, counsel indicated that he 

was requesting reconsideration of OWCP’s February 25, 2016 decision on behalf of appellant. 

He also resubmitted copies of the March 16, 2016 report of Dr. Higey and the March 21, 2016 

report of Dr. Jacob. 

In a June 30, 2016 decision, OWCP denied modification of the hearing representative’s 

February 25, 2016 decision which affirmed the original May 18, 2015 LWEC determination. 

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 LWEC.4

 A wage-earning capacity 

determination is a finding that a specific amount of earnings, either actual earnings or earnings 

from a selected/constructed position, represents a claimant’s ability to earn wages.5

 Generally, 

 3

 The physical requirements of the receptionist position were deemed to be within the work restrictions 

recommended on June 17, 2014 by Dr. Edward G. Fisher, a Board-certified orthopedic surgeon serving as an OWCP 

referral physician. 

4

 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995). 

5 See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991). 
3

an employee’s actual earnings best reflect his or her wage-earning capacity.6

 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.7

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

OWCP’s finding remains undisturbed until properly modified.8

 Modification of an LWEC 

determination is unwarranted 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 erroneous.9

 The burden of proof is on the party seeking 

modification of the wage-earning capacity determination.10

OWCP’s procedure manual provides, “If a formal LWEC decision has been issued, and 

the claim is for recurrent disability, it should be processed in accordance with procedures for 

modifying a formal LWEC.”11

In this case, OWCP essentially determined that appellant had filed a request for 

reconsideration of its February 25, 2016 decision. Although both appellant and counsel did use 

the phrase “requesting reconsideration” in their letters, under the circumstances of this case, the 

Board finds that the issue presented was whether the May 18, 2015 wage-earning capacity 

determination should be modified. Appellant submitted evidence which indicated that he was 

totally disabled due to a worsening of his medical condition after OWCP issued its May 18, 2015 

LWEC determination. It is clear that the claim in this case was that appellant could not work as 

a receptionist, the position that OWCP determined had represented his LWEC, for the 

foreseeable future. The Board has held that, when a wage-earning capacity determination has 

been issued and appellant submits evidence with respect to disability for work, OWCP must 

evaluate the evidence to determine if modification of wage-earning capacity is warranted.12

If there is a claim for increased disability that would prevent a claimant from performing 

the position that was the basis for a LWEC decision, then clearly there is an issue of whether 

modification is appropriate.13 In this case, appellant submitted evidence of an increased 

 6 Hayden C. Ross, 55 ECAB 455, 460 (2004). 

7 Id.

8 See Katherine T. Kreger, 55 ECAB 633, 635 (2004). 

9

 20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 

2 -- Claims, Modification of Loss of Wage Earning Capacity Decisions, Chapter 2.1501.3 (June 2013). 

10 20 C.F.R. § 10.511. 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013). 

12 See 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 wage-earning capacity determination. See id. 

13 Id.
4

disability that prevented him from working as a receptionist. The Board finds that appellant’s 

claim for compensation raised the issue of whether a modification of the May 18, 2015 wageearning capacity decision was warranted and the case must be remanded for an appropriate 

decision on this issue. 

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

Compensation Programs dated June 30, 2016 is set aside, and the case remanded for further 

action consistent with this order. 

Issued: July 14, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board