United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Russell, KS, Employer 

__________________________________________ 

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Docket No. 17-0242 

Issued: May 9, 2017 

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 November 14, 2016 appellant filed a timely appeal from a May 23, 2016 nonmerit 

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

elapsed between the final merit decision dated June 25, 2015 to the date 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 denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on or before July 30, 2013 appellant, then a 48-year-old letter 

carrier, sustained thoracic spondylosis without myelopathy from T7-8 through T11-12, 

aggravation of lumbar spondylosis, and aggravation of lumbar stenosis from L2 through S1. 

In a September 26, 2013 report, Dr. Denise K. Weiss, an attending osteopath Boardcertified in anesthesiology, noted that appellant had been administered a series of thoracic and 

lumbar epidural steroid injections beginning on June 25, 2013. She noted that a July 3, 2013 

magnetic resonance imaging (MRI) scan demonstrated significant degenerative disc disease from 

T7 though T11, mild degenerative disc disease at T12, thoracic facet joint arthropathy at multiple 

levels, and degeneration and severe disc narrowing with neuroforaminal involvement from L1 to 

L4. Dr. Weiss opined that “carrying mailbags for extended periods of time definitely 

contribute[d] to her problem and certainly would worsen her pain.” 

Dr. Ali B. Manguoglu, an attending Board-certified neurosurgeon, restricted appellant to 

light duty in November 2013. Appellant remained under care for thoracic and lumbar 

conditions, and received additional thoracic facet joint injections on January 20, February 26, 

and May 15, 2014. 

On September 23, 2014 appellant accepted a permanent position at retained pay as a 

modified city carrier, working eight hours a day, five days a week, with Sundays and 

Wednesdays off. The activities of pulling, pushing, and lifting were limited to 20 pounds, and 

she was allowed a 5-minute break every 20 minutes. Appellant began work on September 23, 

2014 and remained in the modified position. She continued under medical treatment.2

By decision dated June 25, 2015, OWCP found that appellant’s actual earnings of 

$1,055.73 a week as a modified city carrier fairly and reasonably represented her wage-earning 

capacity. As these earnings equaled those of her date-of-injury position, it determined that she 

had no loss of wage-earning capacity. 

On July 6, 2015 appellant underwent radiofrequency ablation of the left medial branches 

of L3, L4, and the dorsal ramus of L5. Later, on November 10, 2015 she underwent 

radiofrequency ablation of the right medial branches of L2, L3, L4, and the dorsal ramus of L5. 

On December 15, 2015 appellant underwent radiofrequency ablation of the left medial branches 

of L3 and L4, and the dorsal ramus of L5. On January 12, 2016 she underwent radiofrequency 

ablation of the left medial branches of T8, T9, and T10. On February 2, 2016 appellant 

underwent radiofrequency ablation of the right medial branches of T8, T9, and T10. 

In a February 10, 2016 report, Dr. Manguoglu decreased appellant’s lifting limitation to 

10 pounds due to increased thoracic symptoms despite radiofrequency ablation. Appellant 

underwent a left piriformis injection on March 23, 2016. 

 2

 A February 19, 2015 lumbar MRI scan showed moderate-to-severe disc narrowing from L2 through L4, and 

severe disc narrowing from L4 to S1. On April 16, 2015 appellant underwent radiofrequency ablation of the right 

medial branches of L2, L3, L4, and the dorsal ramus of L5. On June 2, 2015 she underwent radiofrequency ablation 

of the right medial branches of T8, T9, and T10. 
3

In an April 19, 2016 report, Dr. Matthew N. Henry, an attending Board-certified 

neurosurgeon, opined that imaging studies revealed significant thoracic and lumbar degeneration. 

As there was no indication for surgery, he recommended “long-term prescription management.” 

On May 10, 2016 Dr. Sambhundh Panichabhongse, an attending Board-certified surgeon 

and family practitioner, restricted appellant to lifting no more than five pounds. 

On May 16, 2016 appellant requested reconsideration of the June 25, 2015 decision. She 

asserted that she was no longer able to perform the permanent modified carrier position as her 

physicians decreased her lifting limitation. In a narrative history, appellant described 

exacerbations of back pain when bending to deliver mail on May 4, 2016, and reaching for a 

bundle of flats on May 9, 2016. Additionally, she asserted new work restrictions from whom she 

referred to as “Dr. Sam.” Appellant then went to see Dr. Panichabhongse, who decreased her 

lifting capacity to five pounds. 

By decision dated May 23, 2016, OWCP denied reconsideration, finding that appellant’s 

request and the evidence in support thereof did not demonstrate legal error in OWCP’s June 25, 

2015 decision. It found her work restrictions inadequate as they were not signed by an 

identifiable physician. OWCP noted that, as appellant alleged intervening injuries on May 4 and 

9, 2016, she was precluded from meeting the criteria for modifying the loss of wage-earning 

capacity determination. It suggested that appellant filed a traumatic injury claim for the 

intervening injuries. Therefore, OWCP did not review the medical evidence submitted following 

issuance of the June 25, 2015 loss of wage-earning capacity determination. 

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.3

 Section 10.511 of OWCP regulations provide that 

if a formal loss of wage-earning capacity decision has been issued, the rating is left in place until 

that determination is 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.4

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

modification of the wage-earning capacity determination.5

 In addition, Chapter 2.1501 of 

OWCP procedures contain provisions regarding the modification of a formal loss of wageearning capacity.6

 

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

4

 20 C.F.R. § 10.511. 

5 Stanley B. Plotkin, 51 ECAB 700 (2000). 

6

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

2.1501 (June 2013). 
4

ANALYSIS 

The Board finds this case is not in posture for decision. By decision dated June 25, 2015, 

OWCP found appellant’s actual earnings as a modified city carrier fairly and reasonably 

represented her wage-earning capacity. The position required lifting up to 20 pounds. Following 

OWCP’s June 25, 2015 decision, appellant submitted medical evidence, which included 

neurosurgical reports chronicling five procedures performed subsequent to the loss of wageearning capacity determination, and updated work restrictions from two attending physicians. 

She filed a request for reconsideration on May 16, 2016. In a nonmerit decision dated May 23, 

2016, OWCP denied appellant’s request for reconsideration under the criteria of 5 U.S.C. 

§ 8128(a), finding that her request did not present evidence sufficient to warrant a merit review. 

It is well established that a claimant may establish that a modification of a loss of wageearning capacity determination is warranted 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.7 Although appellant requested reconsideration, she contended that her medical 

condition had worsened such that he could no longer perform the position on which OWCP 

based the loss of wage-earning capacity determination. The Board finds that this request should 

have been considered a request for modification of the June 25, 2015 loss of wage-earning 

capacity determination.8 The Board has held that, when a loss of wage-earning capacity 

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 the loss of 

wage-earning capacity determination is warranted.9 In this case, appellant asserted that her 

medical condition had changed, and medical evidence was submitted to support this assertion. 

The Board finds that OWCP should have adjudicated appellant’s request as a request for 

modification of the June 25, 2015 loss of wage-earning capacity determination. This 

adjudication should have included a merit review of the evidence submitted in support of the 

request.10 The Board will, therefore, remand the case to OWCP for proper adjudication, to be 

followed by an appropriate merit decision to preserve her appeal rights. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 7 P.C., 58 ECAB 405 (2007). 

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

9 W.W., Docket No. 09-1934 (issued February 24, 2010). 

10 B.W., Docket No. 15-0222 (issued April 8, 2015); F.B., Docket No. 09-99 (issued July 21, 2010); see also 

M.D., Docket No. 12-1317 (issued December 21, 2012). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Worker’s 

Compensation Programs dated May 23, 2016 is set aside and the case remanded for further 

proceedings consistent with this decision of the Board. 

Issued: May 9, 2017 

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