United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-0834 

Issued: August 25, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 15, 2016 appellant timely appealed the February 26, 2016 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

ISSUE 

The issue is whether appellant’s actual earnings as a part-time, limited-duty carrier fairly 

and reasonably represented his wage-earning capacity effective June 12, 2009. 

 1

 5 U.S.C. § 8101 et seq.

2

 The case record provided to the Board includes evidence received after OWCP issued its February 26, 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) (2014). 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 Appellant, a 53-year-old former city 

carrier, injured his lower back as a result of a January 28, 2009 employment-related fall. He was 

delivering mail on private property when he slipped and fell on a tiled porch. OWCP accepted 

appellant’s claim for lumbar sprain/strain, aggravation of underlying L1-2 disc herniation, 

aggravation of underlying L4-5 disc bulge, and lumbar radiculopathy. After a four-month period 

of temporary total disability, appellant returned to work in a part-time, limited-duty capacity 

effective June 12, 2009. His limited-duty carrier responsibilities included “casing [and] pulling 

down route.” Appellant worked four hours per day, and OWCP compensated him for four hours 

of lost wages per day. 

On November 5, 2010 the employing establishment offered appellant another temporary 

part-time (four hours), limited-duty assignment. Per OWCP’s instructions, the employing 

establishment based the offer on the July 20, 2010 permanent restrictions identified by 

appellant’s treating physician, Dr. Gene I. Geld, a family practitioner.4 Appellant accepted the 

limited-duty job offer on November 6, 2010. 

Although appellant’s physician indicated that the work restrictions were permanent, the 

employing establishment advised OWCP that it was currently unable to extend an offer of 

permanent limited-duty work. The employing establishment explained that such an offer would 

have to await the next National Reassessment Program (NRP) review, but until then it would 

continue to provide appellant limited-duty work. OWCP in turn advised him that it could not 

issue a formal loss of wage-earning capacity (LWEC) determination based on actual earnings 

because his limited-duty assignment was not permanent.5

 Appellant remained on the periodic 

compensation rolls and continued to receive four hours of wage-loss compensation per day.6

On January 9, 2014 appellant filed a Form CA-2a claiming that he suffered a recurrence 

of disability beginning September 28, 2013. He alleged that his employing establishment 

withdrew limited-duty work effective September 28, 2013. Appellant also claimed that his 

 3

 Docket No. 15-0465 (issued April 29, 2015). 

4

 The November 5, 2010 modified assignment included “casing mail [and] maintaining all office duties” for 

appellant’s route (up to four hours per day). Additional duties included recording change of addresses (two to four 

hours per day), and casing mail on any open routes (two to four hours per day). The November 5, 2010 offer 

recognized that appellant was not to exceed four hours of limited-duty work per day. There was also no crouching, 

stooping, or climbing. Other limitations included occasional walking, sitting, standing, and reaching overhead (not 

to exceed four hours). Lastly, the offer noted frequent grasping, fine manipulation, and repetitive reaching (not to 

exceed four hours). Although the November 5, 2010 offer did not specify appellant’s salary, the employing 

establishment subsequently identified his annual salary as $54,619.00 (Level 1, Step A). 

5

 Personnel records indicate that appellant’s tenure with the employing establishment dated back to October 1996. 

6

 In 2011 OWCP briefly interrupted payment of wage-loss compensation while appellant received compensation 

for a schedule award. It resumed payment of wage-loss compensation effective October 4, 2011. 
3

previous limited-duty assignment exceeded his medical restrictions.7

 The employing 

establishment refuted his allegation that it had withdrawn his limited-duty assignment. To the 

contrary, it claimed to have merely accommodated his request that he be allowed to exhaust his 

remaining sick leave prior to commencing his OPM-approved disability retirement. 

By decision dated May 27, 2014, OWCP denied appellant’s claim for recurrence of 

disability beginning September 28, 2013. Appellant requested a hearing. The Branch of 

Hearings & Review’s hearing representative affirmed the denial of appellant’s recurrence claim 

in a December 16, 2014 decision.8 Appellant appealed to the Board. 

When the case was previously on appeal, the Board affirmed the hearing representative’s 

December 16, 2014 decision. In its April 29, 2015 decision, the Board found that appellant 

voluntarily stopped work on September 28, 2013 in response to OPM’s recent approval of a 

FERS-based disability retirement. Appellant did not establish that the employing establishment 

withdrew his part-time, limited-duty assignment on or after September 28, 2013. The Board 

further found that appellant failed to establish that the employing establishment changed his 

limited-duty assignment such that the November 5, 2010 job requirements exceeded his 

established physical limitations. Lastly, the Board found that the medical evidence of record did 

not establish that he was totally disabled on or after September 28, 2013 due to his employmentrelated lumbar condition.9

 The Board’s April 29, 2015 decision is incorporated herein by 

reference. 

Since the case was last before the Board, Dr. Geld provided a March 19, 2015 work 

capacity evaluation (OWCP 5-c) wherein he noted that appellant was unable to perform his usual 

job, but could work four hours per day performing sedentary or light duties. He limited appellant 

to four hours of sitting, walking, standing, kneeling, and reaching above shoulder. Dr. Geld 

precluded all twisting, bending/stooping, squatting, climbing, and operating a motor vehicle at 

work. Additionally, he imposed a four-hour, 20-pound restriction with respect to pushing, 

pulling, and lifting. Finally, Dr. Geld noted that appellant should take a five- to seven-minute 

break every half hour. 

Dr. Geld saw appellant for follow-up on June 18, September 16, and December 10, 2015. 

On each occasion, he examined appellant and reported that his condition and work restrictions 

remained unchanged. 

 7

 The position appellant held since November 6, 2010 allegedly required him to stand in excess of one hour. He 

also claimed that his limited-duty assignment exceeded his 20-pound lift/carry limitation. Appellant alleged that he 

had to lift and/or carry relay bags weighing 35 to 70 pounds. 

8

 The hearing representative found no evidence that the employing establishment withdrew appellant’s limitedduty assignment. Instead, the record established that appellant’s work stoppage was due to his acceptance of 

disability retirement benefits. The hearing representative further found that the evidence did not support appellant’s 

claim that the limited-duty position he performed since November 6, 2010 exceeded his medical restrictions. 

9

 Since June 2009, appellant’s treating physician, Dr. Geld, consistently found him capable of working part-time, 

limited duty. He indicated as much on September 20, 2013, just prior to appellant’s work stoppage, and again on 

December 19, 2013, a few days after the effective date of his disability retirement. 
4

On January 21, 2016 appellant advised OWCP that he planned to resume part-time work 

beginning January 25, 2016. He anticipated working four hours per day as a general food service 

worker at a high school. Appellant’s expected hourly wage was $8.25, and he intended to work 

20 hours per week while school was in session. 

In a February 26, 2016 decision, OWCP found that appellant’s part-time employment as 

a limited-duty carrier beginning June 12, 2009 fairly and reasonably represented his wageearning capacity. It noted that he earned $512.66 per week as a limited-duty carrier. The 

decision described appellant’s former duties casing mail and pulling down route.10 OWCP 

explained that because he had demonstrated the ability to perform the duties of the job for two 

months or more, the position was considered suitable to his partially disabled condition. The 

February 26, 2016 decision also noted the history of the claim, including appellant’s third-party 

surplus, his December 2013 disability retirement, and his subsequent claim for recurrence of 

disability, which OWCP denied.11 Additionally, OWCP indicated that a retroactive LWEC 

determination was appropriate, but offered no explanation. It also noted that Dr. Geld advised on 

December 10, 2015 that appellant’s work restrictions remained unchanged. Consequently, 

OWCP adjusted his wage-loss compensation based on his weekly earnings as a limited-duty 

carrier effective June 12, 2009. 

LEGAL PRECEDENT 

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 based on an LWEC.12 An employee’s actual 

earnings generally best reflect his or her wage-earning capacity.13 Absent evidence that actual 

earnings do not fairly and reasonably represent the employee’s wage-earning capacity, such 

earnings must be accepted as representative of the individual’s wage-earning capacity.14 

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

finding remains undisturbed until properly modified.15

A light-duty position that fairly and reasonably represents an employee’s ability to earn 

wages may form the basis of an LWEC determination if that light-duty position is a classified 

 10 According to the June 12, 2009 job offer, appellant was expected to case mail and pull down a route over the 

course of a four-hour workday. The job offer included a 20-pound lifting limitation, and indicated that the majority 

of his four-hour shift would be devoted to casing mail (one to four hours, intermittently). It also specified that an 

average of 30 minutes would be spent lifting up to 20 pounds, as well as 30 minutes spent pulling down the route. 

The June 12, 2009 offer did not specify appellant’s salary nor did it identify the position as permanent. 

11 However, OWCP did not specifically mention appellant’s November 5, 2010 modified assignment. 

12 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995). 

13 Hayden C. Ross, 55 ECAB 455, 460 (2004). 

14 Id.

15 See Katherine T. Kreger, 55 ECAB 633, 635 (2004). 
5

position to which the injured employee has been formally reassigned.16 The position must 

conform to the established physical limitations of the injured employee; the employing 

establishment must have a written position description outlining the duties and physical 

requirements; and the position must correlate to the type of appointment held by the injured 

employee at the time of injury.17 If these circumstances are present, a determination may be 

made that the position constitutes “regular” federal employment.18

With respect to part-time employment, FECA Procedure Manual (PM) provides: (1) a 

part-time position may form the basis of an LWEC determination if the employee was a parttime worker at the time of injury; and (2) for an employee who was a full-time employee on the 

date of injury, a part-time position may form the basis of an LWEC determination if the 

employee’s stable, established work restrictions limit him or her to part-time work.19 For a parttime position to fairly and reasonably represent the wage-earning capacity of an individual who 

was a full-time employee on the date of injury, the position should involve the number of hours 

the employee is capable of working as indicated in the current, stable work restrictions.20

Reemployment may not be considered representative of the injured employee’s wageearning capacity where the job is temporary and the employee’s date-of-injury job was 

permanent.21 However, if the employee was a temporary employee when injured, a temporary 

position may reasonably represent his or her wage-earning capacity as long as the position will 

last for 90 days or more.22 

As long as there is no work stoppage due to the accepted condition(s), a formal LWEC 

determination should be issued following 60 calendar days from the date of return to work.23 

If the injured employee is no longer working in the alternative position upon which a 

rating is being considered, OWCP may consider a retroactive LWEC.24 However, this is rare 

and should only be made where the employee worked in the position for at least 60 days; the 

employment fairly and reasonably represented his or her wage-earning capacity as outlined under 

 16 20 C.F.R. § 10.510.

17 Id.

18 Id.

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Earnings, Chapter 2.815.5c(1)(b) (June 2013). 

20 Id. at Chapter 2.815.5c(1)(b)(ii). 

21 Id. at Chapter 2.815.5c(2)(d). A job is considered temporary when expressly stated in the job offer, position 

description, or other supporting documentation. Id. If the language in the job offer is ambiguous, OWCP should ask 

the employing establishment if the position represents temporary work and document the file accordingly. Id.

22 Id. at Chapter 2.815.5c(2)(d)(iii). 

23 Id. at Chapter 2.815.6a. 

24 Id. at Chapter 2.815.7. 
6

FECA PM Chapter 2.815.5; and the subsequent work stoppage or change in the alternative 

positions(s) did not occur because of any change in the employee’s injury-related condition 

affecting his or her ability to work.25

ANALYSIS 

At the time of his January 28, 2009 work injury, appellant was a permanent employee 

working full-time as a city carrier. He was off work for approximately four months due to his 

accepted employment injury. On June 12, 2009 appellant returned to work as a part-time (four 

hours per day), limited-duty carrier “casing mail [and] pulling down route.” The written job 

offer included a 20-pound lifting restriction. After appellant’s physician identified permanent 

work restrictions in July 2010, OWCP asked the employing establishment to extend an offer of 

permanent limited-duty work. Appellant subsequently received and accepted a November 5, 

2010 modified assignment working four hours per day.26 This latest written offer did not 

identify the part-time modified assignment as permanent and upon further inquiry OWCP 

learned that the employing establishment could not extend a permanent offer at that time. The 

employing establishment explained that the possibility of a permanent assignment would have to 

await the next NRP review, but in the interim it would continue to provide appellant limited-duty 

work. The November 5, 2010 job offer is the most recent of record.27 Appellant continued to 

work part-time, limited duty through September 28, 2013, at which time he voluntarily stopped 

working in advance of his December 13, 2013 OPM-approved disability retirement. 

As noted, this case was previously before the Board with respect to appellant’s claimed 

recurrence of disability beginning September 28, 2013. OWCP denied the recurrence claim, 

which was subsequently upheld by the Branch of Hearings & Review, and affirmed by the 

Board. The Board’s prior decision referenced both the June 12, 2009 and November 5, 2010 

part-time, limited-duty assignments. The April 29, 2015 Board decision also noted that the most 

recent limited-duty position “was not identified as permanent,” and that the employing 

establishment specifically advised OWCP that it “was currently unable to extend an offer of 

permanent limited[-]duty” work. Moreover, the Board’s prior decision indicated that OWCP 

specifically acknowledged that it “could not issue a formal LWEC determination based on actual 

wages” from appellant’s latest temporary assignment. Given his permanent employee status at 

the time of the January 28, 2009 work injury, an LWEC determination based on a temporary 

assignment would have been inappropriate.28

The Board notes that the February 26, 2016 LWEC determination was based on a 

limited-duty assignment that appellant had not held since November 2010. It is unclear why 

OWCP selected the June 12, 2009 limited-duty carrier position rather than the November 5, 2010 

 25 Id. at Chapter 2.815.7(a). 

26 Although Dr. Geld continued to impose a 20-pound lifting/carrying (intermittent) restriction, the November 5, 

2010 job offer did not specifically identify any lifting/carrying restrictions. 

27 There is no indication in the record that the employing establishment subsequently amended the November 5, 

2010 job offer making it a permanent assignment. 

28 Supra note 19 at Chapter 2.815.5c(2)(d). 
7

modified assignment, which he performed for almost three years prior to his voluntary retirement 

in December 2013. The February 26, 2016 LWEC determination makes no mention of 

appellant’s November 5, 2010 modified assignment. 

Appellant argues that the job OWCP rated him on was a temporary assignment and 

therefore the position should not have formed the basis of an LWEC determination. The Board 

agrees. Neither the June 12, 2009 nor November 5, 2010 part-time, limited-duty assignment was 

specifically designated as a permanent position. Moreover, the former assignment was 

superseded by the latter, and it is clear from the record that the November 5, 2010 job offer was 

not intended to be permanent. At the time, the employing establishment specifically advised 

OWCP that it was not prepared to extend appellant a permanent offer. Reemployment in a 

temporary position may not form the basis of an LWEC determination where the employee’s 

date-of-injury job was permanent.29 Accordingly, OWCP’s February 26, 2016 decision shall be 

reversed. 

CONCLUSION 

Appellant’s actual earnings as a part-time, limited-duty carrier effective June 12, 2009 do 

not fairly and reasonably represent his wage-earning capacity. 

 29 Id.
8

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 25, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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