United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-454 

Issued: May 20, 2015 

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant 

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 December 24, 2014 appellant, through her representative, filed a timely appeal from a 

December 2, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) which found that her request for reconsideration was untimely and failed to show clear 

evidence of error. The Board docketed the appeal as No. 15-454. 

By decision dated August 21, 2006, OWCP reduced appellant’s compensation based 

upon her ability to work as an administrative clerk, which was found to be medically and 

vocationally suitable. In a decision dated November 14, 2007, the Board affirmed the 

August 21, 2006 decision finding that OWCP met its burden of proof to reduce appellant’s 

compensation effective August 21, 2006.1

 On September 4, 2014 appellant’s counsel requested 

reconsideration of the August 21, 2006 decision. He challenged the suitability of the constructed 

position and explained why he felt that OWCP’s decision was erroneous. Appellant also 

continued to submit medical evidence noting her status. In a December 2, 2014 decision, OWCP 

denied appellant’s request for reconsideration, finding that it was untimely filed and failed to 

establish clear evidence of error. 

 1

 Docket No. 07-45 (issued August 21, 2006). 
2

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

decision. As noted, OWCP issued a formal decision on appellant’s wage-earning capacity on 

August 21, 2006. Board precedent and OWCP procedures direct the claims examiner to consider 

the criteria for modification of a loss of wage-earning capacity (LWEC) determination when a 

claimant requests resumption of compensation for total wage loss.2

 While appellant’s counsel 

used the term reconsideration in his requests, he argued that the August 21, 2006 decision was in 

error.3

 The Board finds that OWCP should have adjudicated the issue of modification of the 

LWEC determination.4 The Board will therefore remand the case to OWCP for proper 

adjudication, to be followed by a de novo decision to preserve appellant’s appeal rights. 

IT IS HEREBY ORDERED THAT the December 2, 2014 Office of Workers’ 

Compensation Programs’ decision be set aside and the case remanded to OWCP for further 

proceedings consistent with this order. 

 

2 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.4(a) 

(June 2013) (if a claim for wage loss is received, OWCP should review the file to determine whether a formal 

LWEC is in place, and, if so, the claim should be developed, if necessary, as a request for modification of the 

LWEC). 

3

 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. 

Stanley B. Plotkin, 51 ECAB 700 (2000); see Federal (FECA) Procedure Manual, id. at Chapter 2.1501.3(a) 

(June 2013); 20 C.F.R. § 10.511. 

4 See F.B., Docket No. 09-99 (issued July 21, 2010). 
3

Issued: May 20, 2015 

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