United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lexington, KY, Employer 

__________________________________________ 

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Docket No. 16-1761 

Issued: December 21, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se

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 25, 2016 appellant filed a timely application for review of a February 29, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 The 

Board docketed the appeal as No. 16-1761.2

On April 22, 2004 appellant, then a 49-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained injuries to her neck and right upper extremity in 

the performance of duty on or about April 20, 2004. OWCP initially accepted appellant’s claim 

for C6-7 disc herniation with radiculopathy. On September 30, 2004 appellant underwent an 

anterior cervical discectomy at C6-7 with interbody fusion, which OWCP had authorized. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 29, 2016 decision was August 27, 2016. 

Because using September 1, 2016, the date the appeal was received by the Clerk of the Appellate Boards would 

result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is August 25, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 The case record provided to the Board includes evidence received after OWCP issued its February 29, 2016 

decision. The Board is precluded from considering evidence that was not in the case record at the time OWCP 

rendered its final decision. 20 C.F.R. § 501.2(c)(1). 
2

Effective June 7, 2006, the Office of Personnel Management (OPM) granted appellant a 

disability retirement annuity.3 In December 2009, OWCP expanded the accepted conditions in 

appellant’s claim to include C5-6 herniated disc with degenerative changes. Additionally, it 

found appellant entitled to disability compensation retroactive to April 24, 2008, and 

consequently, placed her on the periodic compensation rolls. 

Appellant participated in a vocational rehabilitation program and, in March 2012, her 

rehabilitation counselor determined that she was capable of earning wages in the constructed 

position of receptionist.4 

On May 17, 2013 a formal loss of wage-earning capacity (LWEC) decision was issued 

based upon appellant’s ability to earn $318.00 per week as a receptionist. Appellant’s 

compensation was adjusted effective June 2, 2013 based on this LWEC decision. 

By decisions dated July 15, 2014 and February 9, 2015, OWCP denied modification of 

the May 17, 2013 LWEC determination. 

On February 12, 2016 appellant requested reconsideration. She submitted the appeal 

request form that accompanied the February 9, 2015 decision. Appellant also submitted a 

February 8, 2016 letter explaining her disagreement with OWCP’s prior decision. 

In connection with her claim, appellant submitted evidence which she believed showed 

that she could no longer work as a receptionist. For example, in a December 11, 2014 report, 

Dr. Mark A. Deloma, an attending Board-certified anesthesiologist, noted that appellant reported 

worsening symptoms including increased arm, shoulder, hand, and neck pain which caused sleep 

disturbance and decreased ability to work. He diagnosed numerous conditions including 

possible left wrist ganglion, cervical postlaminectomy syndrome, and subacromial bursitis. 

In a September 10, 2015 report, Dr. Karim Rasheed, an attending Board-certified 

anesthesiologist, noted increased complaints of chronic neck pain radiating into the left upper 

extremity. 

By decision dated February 29, 2016, OWCP refused to reopen appellant’s case for 

further review of the merits of her claim because the latest request for reconsideration was 

untimely filed and appellant had failed to demonstrate clear evidence of error. 

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.5

 A wage-earning capacity 

 3

 OPM determined that appellant was disabled from performing her modified city carrier position due to cervical 

degenerative disc disease and bilateral thoracic outlet syndrome. 

4

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

recommended on October 25, 2012 by Dr. Theodore T. Le, a Board-certified orthopedic surgeon serving as an 

OWCP referral physician. 

5

 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995). 
3

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.6 

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

finding remains undisturbed until properly modified.7

 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.8

 The burden of proof is on the party seeking modification of the 

wage-earning capacity determination.9

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.”10

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

its February 9, 2015 decision. The Board finds that the issue presented was whether the May 17, 

2013 wage-earning capacity determination should be modified. Appellant submitted evidence 

which she believed demonstrated a worsening of her accepted medical condition. 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.11

The Board finds that appellant’s claim for compensation raised the issue of whether 

modification of the May 17, 2013 wage-earning capacity decision was warranted. The case 

therefore must be remanded for an appropriate decision on this issue. 

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

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

8

 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). 

9

 20 C.F.R. § 10.511. 

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

11 See Katherine T. Kreger, supra note 7. 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. 
4

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

Compensation Programs dated February 29, 2016 is set aside, and the case is remanded for 

further action consistent with this order of the Board. 

Issued: December 21, 2016 

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