United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Little Rock, AR, Employer 

__________________________________________ 

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Docket No. 16-1573 

Issued: September 5, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

On July 28, 2016 appellant filed a timely appeal from a July 21, 2016 merit decision of 

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

 The Board docketed the appeal as 

16-1573. 

The Board has duly reviewed the record and finds that the case is not in posture for 

decision. By decision dated February 14, 2012 under appellant’s claim in File No. xxxxxx908, 

 1

 The July 21, 2016 decision denied appellant’s claim for an aggravation of bilateral carpal tunnel syndrome, a 

cervical sprain, displacement of a cervical intervertebral disc, and trigger finger. OWCP accepted these conditions 

under four prior claims: File No. xxxxxx747, accepted for a sprain of the left radial collateral ligament affecting the 

elbow and forearm, left hand joint derangement, right radial styloid tenosynovitis, and right wrist and carpus 

enesopathy; File No. xxxxxx271, accepted for right arm de Quervain’s tenosynovitis; File No. xxxxxx908, accepted 

for bilateral carpal tunnel syndrome, cervical strain, and a temporary aggravation of C5-6 and C6-7 disc herniations; 

File No. xxxxxx474, accepted for trigger finger deformity of the right long finger. Under File No. xxxxxx908, on 

December 5, 2011, the employing establishment offered appellant a position as a modified administrative support 

assistant, performing the same clerical duties but with 50 percent fewer individual tasks than her date-of-injury job. 

Her restrictions allowed two hours of intermittent repetitive upper extremity motion, and two hours of fine 

manipulation. Appellant performed the position through February 2012 and continuing. On February 14, 2012 

under File No. xxxxxx908, OWCP issued a loss of wage-earning capacity determination, based on appellant’s actual 

earnings in the modified administrative support assistant position. 
2

accepted for bilateral carpal tunnel syndrome, cervical strain, and a temporary aggravation of 

C5-6 and C6-7 disc herniations, OWCP found that the modified administrative support assistant 

position appellant had accepted on December 5, 2011 fairly and reasonably represented her 

wage-earning capacity in accordance with 5 U.S.C. § 8115. 

Appellant filed a notice of occupational disease (Form CA-2) on September 25, 2013 

alleging that her duties on or before August 26, 2013 caused bilateral carpal tunnel syndrome, 

cervical strain, and a temporary aggravation of C5-6 and C6-7 disc herniations, conditions 

previously accepted by OWCP.2

 She contended that these conditions totally disabled her for 

work as of August 26, 2013. Appellant submitted an attending physician’s report holding her off 

work as of August 26, 2013. She also claimed wage-loss compensation for total disability 

commencing August 26, 2013. By decision dated July 21, 2016, OWCP denied the occupational 

disease claim, finding the medical evidence of record was insufficient to establish causal 

relationship. Additionally, it denied appellant’s claims for wage loss from August 26, 2013 

onward. OWCP did not acknowledge that it had issued a February 14, 2012 loss of wageearning capacity determination under File No. xxxxxx908. 

Once a loss of wage-earning capacity determination is made, it remains in place until it is 

modified.3

 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.4 

The burden of proof is on the party attempting to show a modification of the loss of wageearning capacity determination.5

 

Appellant’s submission of an occupational disease claim on September 25, 2013, with an 

accompanying claim for wage loss, indicates that she believed the accepted conditions had 

materially worsened such that she could no longer work. The claim should therefore be regarded 

as a request for modification of the February 14, 2012 loss of wage-earning capacity 

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

determination is warranted.6

 OWCP procedures specifically provide that if a formal wageearning capacity decision has been issued, and the claimant subsequently alleges a worsening of 

the accepted condition or conditions, such claim should be processed in accordance with 

procedures for modifying a formal wage-earning capacity decision.7

 In this case, in its July 21, 

 2 See supra note 1.

3

 See G.L., Docket No. 15-1487 (issued October 13, 2015); P.Y., Docket No. 09-2293 (issued September 1, 2010). 

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

5 Id. 

6 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). 

7

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

Decisions, Criteria for Modification, Chapter 2.1501.3.a.2 (February 2013). 
3

2016 decision, OWCP adjudicated the occupational disease claim without any reference to the 

loss of wage-earning capacity determination. 

The Board finds that OWCP should have determined whether appellant had established 

that the loss of wage-earning capacity determination should be modified based on a worsening of 

the accepted conditions.8 The Board will therefore remand the case to OWCP for proper 

adjudication, including combining appellant’s accepted upper extremity claims as appropriate, to 

be followed by issuance of a de novo decision to preserve appellant’s appeal rights. 

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

Compensation Programs dated July 21, 2016 is set aside and the case remanded to OWCP for 

further action consistent with this order of the Board. 

Issued: September 5, 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 

 8 Id.