United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.E., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

BELLEFONTE TRAINING CENTER, 

Hollywood, AL, Employer

__________________________________________

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Docket No. 17-1180

Issued: December 18, 2017

Appearances: Case Submitted on the Record

Ronald K. Bruce, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 8, 2017 appellant, through counsel, filed a timely appeal from a March 15, 2017 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

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). 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. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq. 
2

ISSUE

The issue is whether appellant met his burden of proof to modify a March 13, 2014 loss 

of wage-earning capacity (LWEC) determination. 

On appeal counsel asserts that, because the March 13, 2014 LWEC was based on a 

temporary position created specifically for appellant and, as outlined by the Board in A.J.,

3

it was 

makeshift and temporary, such that the March 15, 2017 decision must be reversed.

FACTUAL HISTORY

On October 16, 2003 appellant, then a 34-year-old lineman apprentice trainee, injured his 

right knee on October 15, 2003 while undergoing lineman training. He did not immediately stop 

work. OWCP accepted right cruciate ligament sprain. Additional conditions of tear of right 

medial meniscus and right lower leg primary osteoarthritis were also accepted. 

On February 5, 2004 Dr. Kirk A. Fee, a Board-certified orthopedic surgeon, performed 

right knee arthroscopic surgery.

4

 On March 11, 2008 he performed additional right knee surgery

due to degenerative arthrosis. Appellant returned to modified duty on April 3, 2008.5 Dr. Fee 

performed right knee total arthroplasty on March 31, 2009. On June 1, 2009 appellant filed a 

recurrence claim (Form CA-2a) and claims for compensation (Form CA-7) for compensation 

beginning that day.6 He received the claimed compensation and was placed on the periodic 

compensation rolls effective October 25, 2009. 

In February 2010, appellant was referred for vocational rehabilitation services. 

In a September 9, 2011 report, Dr. Fee advised that appellant had recovered appropriately 

from his right total knee replacement. He provided permanent restrictions of no climbing, 

squatting, or kneeling, with a 50-pound weight restriction. 

On September 26, 2011 the employing establishment offered appellant a modified 

position as a lineman apprentice, stating that it was a position for which it had a need. The offer 

provided a list of physical requirements.7 Dr. Fee signed a release on September 28, 2011 

indicating that appellant had the physical ability to perform the position. The offer indicated that 

appellant would not violate any of his restrictions. It was in the employing establishment’s 

Muscle Shoals, Alabama, facility, and his duties would include sorting and inventory of material, 

 

3 Docket No. 10-0619 (issued June 29, 2010).

4 The record contains no claims for compensation at the time of this surgery. Appellant had left knee arthroscopic 

surgery, done by Dr. Fee, on June 30, 2006. A notation in the record indicates that he has a compensable left knee 

injury. Any claim regarding the left knee is not before the Board on this appeal.

5 Appellant took sick leave from March 10 to April 3, 2008. 

6 Appellant did not claim compensation for the period March 31 to May 31, 2009. 

7 The physical requirement noted standing for four hours daily, sitting, bending, and twisting for two hours daily, 

walking, squatting, and kneeling for one hour, and no climbing, with a 10- to 20-pound lifting restriction. 
3

working at a computer, and operating a forklift. The offer noted that appellant’s job as a lineman 

apprentice gave him the knowledge needed to identify the types of material needed for 

construction jobs. Appellant accepted the offer on September 30, 2011 and returned to work at 

the Muscle Shoals facility on October 24, 2011. 

In a March 14, 2012 report, Dr. Fee noted appellant’s return to work. He advised that 

appellant could do intermittent sitting, walking, lifting, bending, and squatting with a lifting 

requirement of 10 to 20 pounds. Dr. Fee added that appellant could not push or pull significant 

weight, but could operate foot controls and operate a truck or tractor. He also advised that

appellant had 25 percent permanent impairment of the right leg due to a total knee replacement.8

By decision dated March 13, 2014, OWCP determined that appellant’s earnings in the 

position of lineman-apprentice, effective October 25, 2011, fairly and reasonably represented his 

wage-earning capacity. It noted that, since his current actual earnings were greater than his pay 

rate when disability recurred on March 31, 2009, he had no LWEC. 

On April 13, 2015 the employing establishment notified OWCP that appellant had been 

terminated effective April 9, 2015. It attached April 9, 2015 correspondence sent to him

indicating that a March 4, 2015 notice of proposed action had been finalized. 

On April 17, 2015 appellant filed a recurrence claim. He indicated that the recurrence 

occurred on April 9, 2015 when management could no longer accommodate his restrictions. 

Appellant noted restrictions of no kneeling, squatting, climbing, or walking on uneven ground, 

and no prolonged standing, with a lifting restriction of 25 pounds. He described right and left 

knee pain, muscle spasm in the right leg and lower back, and nerve damage. The employing 

establishment indicated that on April 24, 2006 appellant also sustained an injury to his left knee, 

and that his modified position had restrictions of no bending, squatting, or ladder or pole 

climbing. Appellant also submitted claims for compensation beginning April 9, 2015. 

By letter dated May 12, 2015, OWCP informed appellant that, as a formal LWEC was in 

place, in order to establish his disability claim, he would need to meet one of the criteria for 

modifying an LWEC. It described the criteria and advised him of the evidence he needed to 

provide. 

In a June 1, 2015 report, Dr. Fee noted appellant’s complaint of occasional laxity in his 

right knee. Physical examination demonstrated full extension and flexion with no signs or 

symptoms of problems or infections, and no gross ligamentous instability. Dr. Fee reviewed 

right knee x-rays which showed good position of the total knee components with excellent 

overall fixation. He diagnosed status post right total knee replacement and recommended 

activity as tolerated. Dr. Fee recommended a functional capacity evaluation (FCE) to determine 

appellant’s physical capabilities. 

By decision dated June 16, 2015, OWCP found that appellant submitted insufficient 

evidence establish a basis for modifying the March 23, 2014 LWEC. 

 

8

Following review by its medical adviser who agreed with Dr. Fee’s impairment evaluation, by decision dated 

April 24, 2012 OWCP granted appellant a schedule award for 25 percent permanent impairment of the right leg. 
4

Appellant, through counsel, timely requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review. In support of the request, counsel forwarded an 

October 16, 2014 letter in which the employing establishment notified appellant that there were 

no reasonable accommodations available that would allow him to perform the essential functions 

of the duties of lineman apprentice. It noted that it had reviewed the position description and 

essential functions of the position, as well as appellant’s current condition, the current work 

available, and the business needs of the organization. 

A July 15, 2015 FCE, signed by Dr. Fee on July 23, 2015, demonstrated that appellant 

had difficulty completing or was unable to complete tasks requiring squatting, climbing, 

kneeling, and unilateral stance due to decreased strength and stability about the knees and 

subjective complaints of bilateral knee pain. He was assessed at a medium job level with a 

lifting ability of 50 pounds floor to waist and right and left carrying of 50 pounds.

At the hearing, held on February 16, 2016, appellant testified that his last day at work 

was in September 2014 and that he was paid through April 9, 2015. He indicated that, following 

the termination, he worked briefly as a forklift operator until the job ended. Counsel, citing the 

Board’s decision in A.J.,

9

argued that the modified job appellant returned to in 2011 was 

erroneous and, therefore, the March 13, 2014 decision should be modified. He maintained that 

the job was makeshift and temporary because it was crafted to meet appellant’s specific 

restrictions and was available only as long as the employing establishment could accommodate 

him. 

By decision dated April 27, 2016, an OWCP hearing representative set aside the June 16, 

2015 decision. She noted that, although appellant returned to a job in October 2011 which had 

an official title and formal position description, he did have strict restrictions. On remand,

OWCP was to obtain additional information from the employing establishment as to whether the 

position on which the March 13, 2014 LWEC was based was a classified, permanent position, to 

be followed by a de novo decision. 

On May 26, 2016 OWCP asked the employing establishment to comment regarding the 

2011 job offer, specifically inquiring if the position was based on a classified, permanent, actual 

position and, if so, to provide an SF-50 or other documentation to verify this fact. 

In a response dated May 31, 2016, the employing establishment replied in the affirmative 

that the position offered was permanent and that it was a bona fide position. A copy of the 

September 28, 2011 job description with attachments was included. 

By decision dated June 13, 2016, OWCP denied modification of the March 13, 2014 

LWEC decision. It found that, following review of the additional evidence submitted by the 

employing establishment, appellant did not meet any of the criteria for modifying a formal 

LWEC. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. At the hearing, held on February 8, 2017, counsel reiterated that the modified job 

 

9

Supra note 3.
5

appellant returned to in 2011 was erroneous because it was makeshift and, therefore, the 

March 13, 2014 decision should be modified. He maintained that the job was makeshift because 

it was crafted to meet appellant’s specific restrictions and was available only as long as the 

employing establishment could accommodate appellant, again referencing the Board’s decision 

A.J.

10

 

On March 13, 2017 OWCP’s hearing representative telephoned the employing 

establishment which verified that the position appellant returned to was a permanent, regular 

position, noting that the job was still being performed at the employing establishment. 

By decision dated March 15, 2017, OWCP’s hearing representative found that appellant 

did not meet his burden of proof to modify the March 13, 2014 LWEC determination. He noted 

that the evidence of record did not establish that appellant had experienced a material change in 

the nature and extent of the employment-related condition or had been retrained or otherwise 

vocationally rehabilitated. The hearing representative also found that the evidence of record 

failed to support that the March 13, 2014 LWEC was erroneous. He affirmed the June 13, 2016 

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.11 

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless it meets the requirements for modification.12 OWCP 

procedures at section 2.1501 contain provisions regarding the modification of a formal LWEC.

13

 

The relevant part provides that a formal LWEC will be modified when: (1) the original rating 

was in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has 

been vocationally rehabilitated.14 

As the Board explained in A.J.,

15 a position that is considered an odd-lot or makeshift 

position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity 

determination. In that case, the Board discussed several factors that may support a finding that 

an offered position is makeshift in nature. These factors include: (1) the position did not have 

 

10 Id. 

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

12 Sue A. Sedgwick, 45 ECAB 211 (1993).

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

2.1501 (June 2013).

14 Id. at § 2.1501.3(a).

15 Supra note 3.
6

an official title or formal position description; (2) there were strict limitations, such as fivepound lifting and no casing of mail, which indicated the claimant would not be able to secure a 

position in the community-at-large with such limited duties; (3) the claimant did not perform any 

meaningful tasks in the position; and (4) the job appeared to be temporary in nature.16

The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.17

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify the March 13, 

2014 LWEC determination. In that decision, OWCP found that his earnings as a linemanapprentice, effective October 25, 2011, fairly and reasonably represented his wage-earning 

capacity. It noted that, since his current actual earnings were greater than his pay rate when 

disability recurred on March 31, 2009, he had no LWEC. 

On April 17, 2015 appellant filed a recurrence claim (Form CA-2a). He indicated that 

the recurrence occurred on April 9, 2015 when management could no longer accommodate his 

restrictions. 

As a formal wage-earning capacity was in effect at the time of the claimed recurrence of 

total disability, appellant must show a basis for modification of that decision to be entitled to 

wage-loss compensation. He did not allege that the employment-related condition had materially 

changed or that he was retrained or otherwise vocationally rehabilitated. Rather, counsel, citing 

the Board’s case A.J., asserted that, because the March 13, 2014 LWEC was based on a 

temporary position created specifically for appellant, it was a makeshift position and, therefore, 

the March 15, 2017 decision was erroneous and must be reversed. 

The Board finds no evidence in this case that the modified lineman apprentice position 

was makeshift pursuant to the relevant factors outlined in A.J. regarding a makeshift position. 

As to the first factor, the job offered appellant had an official title and a detailed job description. 

Although the job duties were modified to meet his physical restrictions,18 the job description also 

included a list of the duties that he would perform and indicated that the employing 

establishment had a need for the position, and his job as a lineman apprentice gave him the 

knowledge needed to identify the types of material needed for construction jobs. On May 31, 

2016 the employing establishment affirmatively indicated that the position offered was 

permanent, and certified that it was a bona fide position. 

 

16 Id.

17 Jennifer Atkerson, 55 ECAB 317 (2004).

18 The job offer indicated that appellant would sort and inventory material, would work at a computer, and would 

operate a forklift. Dr. Fee noted on September 28, 2011 that appellant had the physical ability to perform the 

position. 
7

As to the second A.J. factor, while the position provided restrictions of limited walking, 

squatting, and kneeling, and no climbing, with a 10- to 20-pound lifting restriction,19 as noted,20

the duties of the position were those that would be available in a local job market. Moreover, at 

the hearing, appellant testified that following his termination he had worked briefly as a forklift 

operator and only stopped because that job ended. 

There is also no evidence that appellant performed tasks which were not meaningful in 

the modified position. On March 13, 2017 the employing establishment verified that the position 

he returned to was a permanent, regular position, noting that the job was still being performed at 

the employing establishment. 

As to counsel’s argument that the job was temporary, appellant performed the position 

for three years and the job is still being performed at the employing establishment. 

As the record supports that OWCP followed proper procedures, the Board finds that the 

March 13, 2014 LWEC was proper.21 There is, therefore, no basis to support that it should be 

modified.

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that OWCP properly denied modification of appellant’s wage-earning 

capacity determination.

 

19 Supra note 7.

20 Supra note 18.

21 See A.D., Docket No. 14-0253 (issued June 6, 2015).
8

ORDER

IT IS HEREBY ORDERED THAT the March 15, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 18, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board