United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.I., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

SOUTH SUBURBAN GENERAL MAIL 

FACILITY, Bedford Park, IL, Employer 

__________________________________________ 

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Docket No. 16-0363 

Issued: June 7, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 21, 2015 appellant filed a timely appeal from a June 22, 2015 merit 

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

 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

 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). In computing a time period, the date of the event from which the designated period of time begins to 

run shall not be included while the last day of the period so computed shall be included unless it is a Saturday, a 

Sunday, or a legal holiday. 20 C.F.R. § 501.2(f)(2). See also John B. Montoya, 43 ECAB 1148 (1992). One 

hundred and eighty days from June 22, 2015, the date of OWCP’s last decision was Saturday, December 19, 2015. 

The next business day after December 19, 2015 was Monday, December 21, 2015, the date the Clerk of the 

Appellate Boards received the appeal. It is therefore timely filed. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has met her burden of proof to establish that her loss of 

wage-earning capacity determination should be modified. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

OWCP accepted that on or before October 19, 1992 appellant, then a 30-year-old mail 

processing machine operator, sustained lumbar disc herniations at L4-5 and L5-S1 due to 

repetitive lifting and bending in the performance of duty. She underwent an L5-S1 fusion in 

1993. On April 6, 1994 appellant underwent a posterior L4-5 fusion with screw and plate 

instrumentation. OWCP approved both surgical procedures. 

Dr. William A. Earman, Jr., an attending osteopathic physician Board-certified in 

orthopedic surgery, opined on July 7, 1995 that appellant had reached maximum medical 

improvement. Appellant required permanent physical restrictions due to her postsurgical status. 

Dr. Earman limited lifting to 20 pounds, with no bending, stooping, or twisting. Appellant also 

required frequent changes of position. Dr. Edward G. Nicholson, an attending osteopathic 

physician Board-certified in family practice, reduced her lifting limitation to 10 pounds due to 

lumbar instability. 

On December 30, 1996 appellant accepted a permanent job offer as a modified mail 

processor in the cancellation division, working from 3:00 p.m. to 11:30 p.m. Monday through 

Friday. The position complied with her permanent medical restrictions of no lifting over 10 

pounds, no bending or twisting, and the ability to sit or stand at will, sorting one ounce mail 

rejected from a cancellation machine. The employing establishment explained that it offered the 

position because of contractual obligations to provide “work available to employees injured on 

the job.” It noted the tasks required in the job and the physical requirements. 

By decision dated May 15, 1997, OWCP determined that appellant had no loss of wageearning capacity as she had worked in the modified mail processor position at retained pay for 

more than 60 days. 

From June 2000 through 2005, appellant continued working as a modified mail processor 

under the limitations specified in the December 30, 1996 position description. In 2002, OWCP 

assigned a vocational rehabilitation counselor to her case to assist the employing establishment 

in obtaining a prescribed ergonomic chair. 

On August 23, 2006 appellant accepted a full-time modified reassignment position in the 

cancellation unit. She had no production quota and could work at her own pace. Appellant was 

allowed to change positions at will, with lifting limited to five pounds. In reports from June 8, 

2007 to December 6, 2010, Dr. Yolanda Escalona, an attending Board-certified internist, 
3

affirmed appellant’s work restrictions against lifting more than five pounds, with no kneeling, 

bending, stooping, or twisting. 

Appellant claimed wage-loss compensation beginning September 13, 2010. She claimed 

80 hours of wage-loss compensation for the period December 6 to 17, 2010. On the reverse side 

of the claim forms, the employing establishment wrote “NRP [National Reassessment Process], 

No Work Available.” By decision dated January 13, 2011, OWCP denied appellant’s claim for a 

recurrence of disability as the medical evidence did not establish a spontaneous worsening of the 

accepted lumbar conditions. 

The employing establishment placed appellant in “stand by” status on February 4, 2011. 

In a March 4, 2011 letter, it advised her that, under the limited-duty guidelines of NRP, there was 

no work available within her restrictions as of that day. A review of area operations 

demonstrated that there were no necessary tasks within the medical restrictions due to appellant’s 

accepted injuries available in her commuting area. Appellant was not to report for duty until 

work could be found for her. The employing establishment instructed her to claim wage-loss 

compensation under FECA. Appellant claimed compensation for total disability commencing 

March 4, 2011. 

Appellant submitted reports dated from March 2011 through October 2012, from 

Dr. Holly Carobene, an attending physician Board-certified in pain management, diagnosing 

cervical and lumbar radiculopathy. Dr. Carobene administered lumbar epidural injections. 

Dr. Escalona affirmed prior work restrictions through November 3, 2011. 

In a February 22, 2012 letter, appellant contended that the May 15, 1997 loss of wageearning capacity determination was in error as it was based on a makeshift job specifically 

designed to accommodate her work limitations and was not available on the open labor market. 

In an April 5, 2012 letter, OWCP advised appellant of the evidence needed to establish 

that the May 15, 1997 loss of wage-earning capacity determination should be modified. It noted 

that she must submit factual evidence that the original determination was in error or that she had 

been vocationally retrained. Alternatively, appellant was to submit medical evidence 

demonstrating a material worsening of the accepted conditions such that she could no longer 

perform the permanent modified-duty position. OWCP afforded her 30 days to submit such 

evidence. 

Appellant submitted April 17 and 24, 2012 reports from Dr. Carobene reiterating prior 

work restrictions. 

By decision dated July 23, 2012, OWCP denied appellant’s claim for wage-loss 

compensation beginning March 4, 2011 as the medical evidence failed to establish a worsening 

of the accepted conditions such that she was totally disabled for work. 

On August 16, 2012 appellant requested an oral hearing before an OWCP hearing 

representative, held on November 27, 2012. At the hearing, she asserted that the May 15, 1997 

loss of wage-earning capacity decision was erroneous as it was based on a makeshift position. 

Appellant submitted physical therapy notes and an October 2, 2012 report from Dr. Carobene 

noting administration of a left L5 nerve root block. 
4

By decision dated February 11, 2013, an OWCP hearing representative affirmed the 

July 23, 2012 decision, finding that appellant had presented insufficient medical evidence to 

establish a material worsening of the accepted condition. She further found that the evidence 

failed to establish that the May 15, 1997 loss of wage-earning capacity determination was 

erroneous. Appellant then appealed to the Board. 

During the pendency of the prior appeal, appellant submitted claims for wage-loss 

compensation from February 4 to September 27, 2013.3

 

In an August 26, 2013 letter, an employing establishment human resources manager 

asserted that the “Rehabilitation Modified Assignment offered to and accepted by [appellant] on 

December 30, 1996, was a makeshift position. The loss of wage-earning capacity determination 

issued on May 15, 1997, as a result of this makeshift position appears to have been made in 

error.” 

By decision and order issued September 10, 2013,4 the Board set aside the February 11, 

2013 decision, finding that OWCP had not addressed FECA Bulletin No. 09-0005 or fully follow 

the procedures outlined therein for claims, such as this, in which limited-duty positions were 

withdrawn pursuant to NRP. The Board remanded the case for additional development, 

including a review of the medical evidence to determine if it established continuing work-related 

disability. A de novo decision was to follow. 

On October 21, 2013 appellant claimed wage-loss compensation from October 14 

to 25, 2013. 

In an October 22, 2013 letter, OWCP advised appellant to submit additional evidence 

regarding the requested modification of the May 15, 1997 loss of wage-earning capacity 

determination, establishing that the original rating was in error, that she had been retrained or 

rehabilitated, or that the accepted condition had materially worsened. It afforded her 30 days to 

submit such evidence. Appellant did not submit evidence within the allotted time. 

By decision dated December 11, 2013, OWCP denied modification of the May 15, 1997 

loss of wage-earning capacity determination, finding that there was “no information of record 

that either implies or contends that the loss of wage-earning capacity decision was without any 

factual basis at the time it was issued,” that appellant had been retrained, or that the accepted 

condition had materially worsened. 

Appellant disagreed and on January 9, 2014 requested an oral hearing. She submitted a 

February 19, 1997 personnel action form (SF-50) and a June 8, 2004 human resources form 

noting her return to work on December 30, 1996 in a permanent limited-duty assignment as a 

 3

 By decision dated September 24, 1998, OWCP granted a schedule award for 11 percent permanent impairment 

of the right lower extremity due to the accepted lumbar disc herniations. By decision dated February 27, 2013, 

OWCP denied appellant’s claim for a schedule award for extremity impairment related to accepted lumbar disc 

displacement. It found that she had not submitted medical evidence establishing that the accepted condition caused 

a ratable impairment of a scheduled member. 

4

 Docket No. 13-0993 (issued September 10, 2013). 
5

modified mail processor. Appellant also provided a copy of the March 4, 2011 letter advising 

her that the limited-duty position had been eliminated under the NRP. 

At the hearing, held May 14, 2014, appellant contended that the August 26, 2013 

employing establishment letter confirming that the December 30, 1996 job offer was for a 

makeshift position established that the original determination was in error. She also asserted that 

the termination of her permanent limited-duty position constituted a recurrence of disability 

requiring modification of the May 15, 1997 loss of wage-earning capacity determination. 

Appellant noted that she was approved for disability retirement, effective October 15, 2013. 

By decision dated August 6, 2014, an OWCP hearing representative set aside OWCP’s 

December 11, 2013 decision and remanded the case for additional development on whether the 

December 30, 1996 job offer was for a bona fide or makeshift position. Following such 

development, OWCP was to issue a de novo decision regarding whether the May 15, 1997 loss 

of wage-earning capacity determination should be modified. 

In an August 28, 2014 letter, appellant asserted that the December 30, 1996 job offer was 

a position not available on the open labor market. The job offer was created solely to 

accommodate her physical restrictions. “It was never available for bid or application by any 

other employee, and would cease to exist once [appellant] left.” 

In a September 17, 2014 e-mail, an employing establishment health and resources 

manager explained that appellant’s “rehab Job Modified Mail Processor Job ... effective 

December 30, 1996, was created specifically for [appellant] and in strict compliance with her 

medical restrictions.” Appellant’s duties were not associated with an organized work unit, but 

instead charged to a separate operations code classification for “Rehabilitation.” The manager 

noted that although appellant performed her duties “in an isolated location within the building,” 

her assigned tasks were an “essential part of the mail processing operation” that were “currently 

performed today” under a new classification code, with duties “absorbed into the various mail 

processing units, charged to the regular productive mail processing operation associated with the 

type of mail being processed, and where the damaged mail occur[s].” 

By decision dated November 17, 2014, OWCP denied modification of the May 15, 1997 

loss of wage-earning capacity determination, finding that the September 17, 2014 e-mail from 

the employing establishment proved that the December 30, 1996 job offer was for a bona fide

position. As appellant’s assigned tasks were “essential in the mail processing operation,” they 

were not makeshift. Therefore, the May 15, 1997 loss of wage-earning capacity determination 

was not issued in error. 

Appellant disagreed, and in a December 10, 2014 letter requested an oral hearing, held 

April 29, 2015. At the hearing, she asserted that if her job tasks as a modified mail processor 

were essential as asserted by the employing establishment in the September 17, 2014 e-mail, then 

her position should not have been eliminated under the NRP. 

The employing establishment submitted comments to the hearing transcript. In a 

May 20, 2015 letter, a health and resources manager newly alleged that appellant’s permanent 

modified assignment was not eliminated, but that she “removed herself from her job assignment 
6

when on February 20, 2010 she stopped work on total disability for [File No.] xxxxxx591 and 

underwent arthroscopic repair of her left shoulder.” The manager asserted that appellant 

“reported for duty February 4, 2011 with restrictions for” nonoccupational lumbar and cervical 

spine conditions. She contended that appellant was sent home on March 4, 2011 not because 

there was no work available within the permanent restrictions due to the accepted conditions, but 

because of the additional restrictions for the nonindustrial complaints. 

By decision dated June 22, 2015, an OWCP hearing representative affirmed the 

November 17, 2014 decision denying modification of the May 15, 1997 loss of wage-earning 

capacity determination. The hearing representative found that appellant had not established that 

the December 30, 1996 position was makeshift, that the accepted conditions had materially 

worsened, or that she had been retrained or vocationally rehabilitated. 

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.5

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.6

 OWCP’s procedures provide 

that, “[i]f a formal loss of wage-earning capacity decision has been issued, the rating should be 

left in place unless the claimant requests resumption of compensation for total wage loss. In this 

instance the CE [claims examiner] will need to evaluate the request according to the customary 

criteria for modifying a formal loss of wage-earning capacity.”7 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.8 

Factors to be considered in determining if a position fairly and reasonably represents the 

injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour 

of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part time 

(unless the claimant was a part-time worker at the time of injury), or sporadic in nature; 

(3) whether the job is seasonal in an area where year-round employment is available; and 

(4) whether the job is temporary where the claimant’s previous job was permanent.9

 

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

6 Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993). 

7

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

Chapter 2.814.9(a) (June 2013). See Harley Sims, Jr., 56 ECAB 320 (2005). 

8 Selden H. Swartz, 55 ECAB 272, 278 (2004). 

9 Supra note 7 at Part 2 -- Claims, Reemployment: Modification of Loss of Wage-Earning Capacity Decisions, 

Chapter 2.1501(3)a (June 2013). 
7

Additionally, a makeshift or odd-lot position designed to meet an injured employee’s particular 

needs will not be considered representative of one’s wage-earning capacity.10 

Assuming the position is both vocationally and medically suitable and conforms to the 

above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after she has successfully performed the required duties for at least 60 days.11 

ANALYSIS 

OWCP accepted that appellant sustained L4-5 and L5-S1 disc herniations in the 

performance of duty. Appellant underwent L5-S1 fusion with plate fixation in 1993, and a 

posterior L4-5 fusion in 1994. On December 30, 1996 she returned to work in a permanent 

rehabilitation position as a full-time modified mail handler, within permanent restrictions offered 

by her attending physicians. OWCP issued a May 15, 1997 loss of wage-earning capacity 

determination, based on appellant’s actual earnings in the modified mail handler position. 

On August 23, 2006 appellant accepted another full-time modified mail handler position 

within her permanent work limitations. The position had no production quota and allowed her to 

work at her own pace. The employing establishment terminated that position, effective 

March 14, 2011 under the NRP. Appellant requested modification of the May 15, 1997 loss of 

wage-earning capacity determination, contending that it was erroneous as it was based on a 

makeshift position. OWCP denied modification by decisions dated June 22, 2015, finding that 

the December 30, 1996 position was bona fide. 

It is axiomatic that an employee with an occupational injury may require job 

modifications or accommodations in order to return to work. The Board has long recognized that 

an employing establishment may accommodate an employee’s work-related medical restrictions 

by modifying the way a job is performed, if the assigned tasks of that position are those of a 

regular job, available in the community or open labor market, that would have been performed 

by another employee.12 However, the Board has also held that a job created specifically for a 

claimant, composed of odd-lot tasks within an employee’s medical restrictions, is makeshift.13 

In A.J., the Board set forth criteria for determining whether an offered position was 

makeshift and not a regular position. These criteria include: (1) lack of an official title or 

position description; (2) strict limitations which indicated that the claimants would not be able to 

secure a position in the community-at-large with such limited duties; (3) a lack of meaningful 

tasks; and (4) a job that is temporary in nature.14 In this case, the December 30, 1996 job offer, 

upon which the loss of wage-earning capacity was based, was for a permanent position with a 

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

11 Supra note 7 at Chapter 2.815.5(e) (June 2013). 

12 L.C., Docket No. 13-1934 (issued September 29, 2014), Jeffrey T. Hunter, 52 ECAB 503 (2001). 

13 P.G., Docket No. 14-1797 (issued September 16, 2015). 

14 Supra note 10. 
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job title and detailed description. It thus meets the first and fourth criteria under A.J. The 

physical restrictions, including the 10-pound lifting limitation, prohibition on bending and 

stooping, and the ability to sit or stand at will, are not overly strict. Lifting restrictions as low as 

five pounds have not been found to preclude finding a similar position in the community at 

large.15 The modified mail handler position thus meets the second criterion. 

The modified mail handler position also met the third criterion, whether the job required 

meaningful tasks, such that it was a “regular” position that would have been performed by 

another employee. Appellant was assigned to process one-ounce mail rejected by a cancellation 

machine. The employing establishment explained in its September 17, 2014 letter that, at the 

time of the assignment on December 30, 1996, these tasks were an “essential part of the mail 

processing operation” for handling damaged mail. It added that these tasks were still performed 

in the regular mail processing operation. The Board finds that the employing establishment’s 

explanation supports that the permanent, modified position was not makeshift.16

The Board notes that, in the August 26, 2013 letter, an employing establishment human 

resources manager asserted that the December 30, 1996 job offer was for a makeshift position. 

However, the employing establishment did not explain how the modified mail handler position 

did not meet the four criteria under A.J., or why it was not a regular position that would have 

been performed by another employee. Therefore, this letter is insufficient to establish that the 

position was makeshift, or that the May 15, 1997 loss of wage-earning capacity determination 

was otherwise in error. 

On appeal, appellant describes severe financial and personal hardships. She contends that 

she meets all criteria for modifying a loss of wage-earning capacity determination under the 

Board’s holding in Elmer Strong.17 Appellant alleges that the May 15, 1997 loss of wageearning capacity determination was erroneous as it was based on a makeshift position. As found 

above, the Board finds that the modified mail handler position was bona fide. 

Appellant also argues that the employing establishment’s withdrawal of her light-duty 

position under the NRP from March 4, 2011 to October 15, 2013 constituted a recurrence of 

disability. However, the employing establishment submitted a May 20, 2015 letter explaining 

that she voluntarily stopped work on February 20, 2010, and was sent home on March 4, 2011 

due to additional restrictions imposed for nonoccupational complaints. Additionally, appellant 

asserts that the accepted condition worsened with no intervening injury, and that she was 

vocationally rehabilitated through OWCP’s vocational rehabilitation program. However, she did 

not submit sufficient evidence to establish either argument. 

Appellant may request modification of the loss of wage-earning determination, supported 

by new evidence or argument, at any time before OWCP. 

 15 T.P., Docket No. 14-1207 (issued November 7, 2014). 

16 L.C., supra note 12. 

17 17 ECAB 226 (1965) (where the Board held that the three criteria for modification of a standing loss of wageearning capacity determination were: (1) a material change in the nature and extent of the injury-related condition; 

(2) the employee has been retrained or vocationally rehabilitated; and (3) the original determination was in error). 
9

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish that a loss of 

wage-earning capacity determination should be modified. 

ORDER 

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

Compensation Programs dated June 22, 2015 is affirmed. 

Issued: June 7, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board