United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer 

__________________________________________ 

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Docket No. 15-1801 

Issued: March 9, 2016 

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 August 31, 2015 appellant filed a timely appeal of an August 5, 2015 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 established that OWCP’s April 29, 2013 loss of wageearning capacity (LWEC) determination should be modified. 

FACTUAL HISTORY 

Appellant, a 41-year-old letter carrier, injured her left shoulder on April 4, 1987 when she 

stumbled while she was being attacked by a dog. She filed a traumatic injury claim (Form CA-1), 

which OWCP accepted for sprain of the left shoulder and left upper arm. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

Appellant was on wage-loss compensation until, on February 13, 1995 she accepted a 

full-time job as a modified letter carrier. The position met her physical restrictions and allowed 

her to work for eight hours a day, with no pushing, pulling or lifting over 25 pounds, and no 

repetitive climbing. The duties of the position were data input, writing reports, answering 

telephones, receiving visitors, photocopying, stuffing envelopes, preparing mail, and other 

miscellaneous office duties. 

Over time, appellant accepted other full-time modified job offers. These job offers 

remained in the administrative field. On May 2, 2007 appellant bid for an assignment to case 

letters for two hours a day, and perform administrative duties for up to eight hours a day. The 

record reflects that on November 20, 2009 appellant accepted a different position which was 

primarily administrative/clerical, including answering the telephone. On May 4, 2012 appellant 

was offered a modified limited-duty position, which included, in addition to administrative 

duties, that she case a delivery route for two hours a day. 

Appellant worked full time until February 27, 2013 when the employing establishment 

informed OWCP that appellant was in a leave-without-pay status with the employing 

establishment. 

By decision dated April 29, 2013, OWCP issued a retroactive wage-earning capacity 

decision. It found that appellant had been working full time more than 60 days in the 

February 13, 1995 modified position and the actual wages she earned in the position of modified 

letter carrier, $684.69 per week, fairly and reasonably represented her wage-earning capacity. 

OWCP further found that as her actual earnings in the modified letter carrier position met or 

exceeded the current, effective February 13, 1995, wages of her date-of-injury job, she would not 

be eligible for wage-loss compensation. 

On May 2, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. 

By decision dated July 31, 2013, an OWCP hearing representative set aside the April 29, 

2013 decision because the April 29, 2013 decision had not been served on appellant’s authorized 

representative. 

By decision dated August 14, 2013, OWCP reissued the April 29, 2013 decision. 

On August 20, 2013 appellant requested an oral hearing, which was held on 

April 8, 2014. 

At the April 8, 2014 hearing, appellant’s representative argued that the February 13, 1995 

modified letter carrier position was not a valid position upon which to base the August 14, 2013 

LWEC determination. He contended that actual wages earned were not the best measure of an 

injured worker’s earning capacity if such wages were earned in sheltered or odd-lot employment, 

as was the case with appellant. Mike Sullivan asserted that the evidence supported a finding that 

the February 13, 1995 modified letter carrier position was not a position at all, using the 

employing establishment’s definitions; rather, that it was an assignment created specifically to 

accommodate her permanent work restrictions. 
3

By decision dated May 29, 2014, an OWCP hearing representative affirmed the 

August 14, 2013 decision. 

By letter dated May 27, 2015, appellant’s representative requested reconsideration and 

reiterated his argument that the February 13, 1995 modified letter carrier position was not a valid 

position upon which to base the August 14, 2013 LWEC determination. He claimed that it was 

an assignment created specifically to accommodate appellant’s permanent work restrictions, and 

was a sheltered or odd-lot employment. In support of his contentions, he submitted: 300 pages 

of OWCP and program procedures; job offers dated June 18, July 25, August 7, September 5, 

and December 19, 2014, and March 19, 2015; and a letter from her treating physician Boardcertified in family medicine, Dr. Tish Landrum, in advising appellant that she was discontinuing 

her services. 

By decision dated August 5, 2015, OWCP denied modification of the August 14, 2013 

reissued wage-earning capacity decision. 

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

remains undisturbed until properly modified.2 Section 8115(a) of FECA provides that, in 

determining compensation for partial disability, the wage-earning capacity of an employee is 

determined by her actual earnings if her actual earnings fairly and reasonably represent her 

wage-earning capacity.3 Compensation payments are based on the wage-earning capacity 

determination and it remains undisturbed until properly modified.4

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.5

 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.6 

OWCP’s procedures provide that factors to be considered in determining whether the 

claimant’s work fairly and reasonably represents her wage-earning capacity include the kind of 

appointment, that is, whether the position is temporary, seasonal, or permanent, and the tour of 

                                                             2 See Katherine T. Kreger, 55 ECAB 633 (2004). See 5 U.S.C. § 8115 (determination of loss of wage-earning 

capacity). 

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

4

 5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000). 

5 Sharon C. Clement, 55 ECAB 552 (2004). 

6 T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000). 
4

duty, that is, whether it is part time or full time.7

 Further, a makeshift8 or odd-lot position 

designed for a claimant’s particular needs will not be considered suitable.9

 

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

Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact 

and a statement of reasons.10 OWCP erred in its August 5, 2015 decision by failing to discuss or 

analyze the arguments raised by the May 27, 2015 request for reconsideration. While OWCP 

listed the evidence appellant submitted, it did not provide any discussion or analysis regarding 

this evidence. It merely issued a summary statement that the evidence appellant submitted was 

not sufficient to meet her burden of proof. 

It is incumbent upon OWCP to review all of the evidence of record and make findings 

based upon the evidence of record. OWCP should make findings as to whether appellant met her 

burden of proof to establish that the original loss of wage-earning capacity was in error, that 

appellant’s subsequent work stoppage or change in alternate positions were due to a change in 

her injury-related condition or that appellant had been retrained or otherwise rehabilitated. 

Accordingly, the case will be set aside and remanded for consideration of the medical 

evidence pursuant to the standards set out in section 8128(a) and section 20 C.F.R. § 10.126. 

After such further development as OWCP deems necessary, it shall issue a de novo decision to 

protect appellant’s appeal rights. 

CONCLUSION 

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

                                                             7 Id.

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.815.7 (June 2013). 

9

 A makeshift position is one that is specifically tailored to an employee’s particular needs and generally lacks a 

position description with specific duties, physical requirements and work schedule. See Selden H. Swartz, 55 ECAB 

272 (2004); William D. Emory, 47 ECAB 365 (1996); James D. Champlain, 44 ECAB 438 (1993). 

10 20 C.F.R. § 10.126. 
5

ORDER 

IT IS HEREBY ORDERED THAT that the August 5, 2015 decision is set aside and 

remanded in accordance with this decision. 

Issued: March 9, 2016 

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