United States Department of Labor

Employees’ Compensation Appeals Board

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J.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, CENTRAL ILLINOIS 

REGIONAL AIRPORT, Bloomington, IL, 

Employer

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Docket No. 18-0535

Issued: December 31, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 18, 2018 appellant filed a timely appeal from a December 20, 2017 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.

ISSUE

The issue is whether appellant has met his burden of proof to modify an August 12, 2016 

loss of wage-earning capacity (LWEC) determination.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 4, 2012 appellant, then a 35-year-old part-time transportation security 

officer, filed a traumatic injury claim (Form CA-1) alleging that he injured his lower back when 

assisting a customer with baggage on that date. He initially missed intermittent periods from work,

and then stopped work completely on January 30, 2013. On February 12, 2013 OWCP accepted 

the claim for lumbar back strain. It subsequently expanded acceptance of the claim to include 

thoracic or lumbosacral neuritis or radiculitis and displacement of lumbar intervertebral disc

without myelopathy.

On March 7, 2013 appellant accepted a modified part-time position. He was terminated by 

the employing establishment on March 8, 2013.2 OWCP initially paid appellant wage-loss 

compensation and medical benefits on the daily rolls and then paid appellant compensation on the 

periodic compensation roll, based on his part-time employment, as of April 8, 2013.

On an EN1032 form, signed by appellant on September 3, 2013, appellant indicated that 

he had worked for AFNI, a private employer, performing office work, from September 2010 to 

present. On an EN1032 form, signed by appellant on September 9, 2014, he indicated that he 

began work with AFNI on September 27, 2010 and continued, and that on June 16, 2014 he began 

a second office job with the City of Bloomington, Illinois.

3

Following an October 1, 2014 inquiry by OWCP, on October 30, 2014 the City of 

Bloomington indicated that appellant had commenced work as a cash collection manager for 40 

hours a week on June 16, 2014, and earned $2,423.08 biweekly. A position description was 

attached.4

In an EN1032, signed by appellant on October 1, 2015, he indicated that he had continued 

to work with AFNI until March 2015 and also worked for the City of Bloomington. Appellant 

continued to receive FECA compensation on the periodic roll.

OWCP obtained pay rate information from the employing establishment and prepared a 

pay rate memorandum on August 12, 2016. This indicated that, based on a 20-hour workweek 

with Sunday premium and night differential, appellant’s weekly pay rate was $843.44.

By decision dated August 12, 2016, OWCP determined that appellant’s actual earnings 

with the City of Bloomington, Illinois, where he had worked since June 16, 2014, fairly and 

 

2 The termination notice indicated that appellant, who was hired on June 19, 2011, was terminated during his twoyear trial period due to misconduct.

3

In February 2014, OWCP referred appellant to Dr. Eric Orenstein, a Board-certified orthopedic surgeon, for a 

second-opinion evaluation. In a March 24, 2014 report, he advised that appellant could not return to a transportation 

security officer position, but could return to work in a sedentary light-duty job.

4 The position description indicated that the manager managed, safeguarded, and reconciled most of the city’s water 

utility revenues and collection activity, supervised support staff employees, and was responsible for ensuring excellent 

customer service to the public. The work also involved developing customer service standards, enforcing internal 

controls, and supervising within a collective bargaining agreement and under city policies to ensure that work 

processes and rules were followed. The work was performed in an office environment. 
3

reasonably represented his wage-earning capacity. It further found that he had no loss of wageearning capacity because his actual earnings of $1,211.54 per week met or exceeded the current 

wages for the job he held when injured on November 4, 2012.

On August 20, 2016 appellant requested a hearing with OWCP’s Branch of Hearings and 

Review. During the hearing, held before an OWCP hearing representative on March 6, 2017, 

appellant testified that at the time of the November 4, 2012 employment injury, he worked full

time at AFNI as a performance improvement specialist, and worked part time for the employing 

establishment. He indicated that at present he worked for the City of Bloomington, in a job just 

like the position he had at AFNI, but that now he supervised more employees. Appellant 

maintained that the LWEC determination should have been based on his full-time work at AFNI 

as well as his part-time work at the employing establishment. The hearing representative explained 

the criteria needed to modify an LWEC determination and asked that appellant furnish a job 

description and earnings information from AFNI.

Appellant forwarded a job description of the performance improvement specialist position 

at AFNI.5 He also forwarded income tax information for the years 2014, 2015, and 2016. This 

included W2 forms reporting income from the City of Bloomington.6

By decision dated May 16, 2017, OWCP’s hearing representative affirmed the August 12, 

2016 LWEC determination, finding that appellant had not met his burden of proof to establish that 

the August 12, 2016 LWEC determination was erroneous.

On June 2, 2017 appellant requested reconsideration and provided a summary of his 

employment.

By decision dated August 23, 2017, OWCP found appellant had submitted insufficient 

evidence to support modification of the August 12, 2016 LWEC determination.

Appellant next requested reconsideration on September 5, 2017. He submitted federal and 

state tracking information for the years 2011, 2012, and 2013.7

 

5 The position summary indicated that the performance improvement specialist provided support and direction to 

coaches and collectors by answering questions, providing training, modeling behaviors, identifying performance 

deficiency trends, input into curriculum development, and ensuring strategy is in affect and validating results. The 

incumbent was to create trend reports and performance data to be provided to senior management as requested.

6 Appellant also forwarded treatment notes dated January 30 and March 28, 2017 in which Dr. Gustavo Galue, a 

Board-certified family physician, described physical examination findings and diagnosed displacement of lumbar 

intervertebral disc without myelopathy and low back pain radiating to the left leg. The record also includes treatment 

notes dated September 26 and November 29, 2016 completed by Andrew Tharp, a nurse practitioner, who works with

Dr. Galue.

7 Appellant also submitted additional progress notes from Dr. Galue dated May 8 to November 27, 2017 in which 

he described appellant’s low back pain, which was currently unchanged.
4

The employing establishment submitted appellant’s pay rate information for the date of

injury. It also provided the maximum salary of a full-time employee in August 2016 the date the 

LWEC was issued when including night differential and Sunday and holiday premium pay.

By decision dated December 20, 2017, OWCP found that the evidence of record was 

insufficient to warrant modification of the August 12, 2016 LWEC determination. It noted that, 

as the position appellant held with AFNI in 2012 was dissimilar from his employing establishment 

position, it obtained earnings of a full-time employee at the employing establishment performing 

the same duties as appellant, who was a part-time employee. OWCP concluded that appellant’s 

current pay rate in private employment was equal to or greater than the current pay of the job held 

when injured and, therefore, there was no loss of wage-earning capacity.

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 on loss of wage-earning capacity.8 An LWEC determination 

is a finding that a specific amount of earnings, either actual earnings or earnings from a 

selected/constructed position, represents a claimant’s ability to earn wages.9 Generally, an 

employee’s actual earnings best reflect his wage-earning capacity.

10

 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.

11

OWCP procedures provide that, if an injured employee has returned to alternative 

employment in the private sector, the claims examiner should consider the number of hours 

actually being worked in relation to the number the claimant is medically capable of working and 

review both the nature of the occupation and the actual wages earned in the new position to 

determine whether the earnings fairly and reasonably represent the wage-earning capacity.12

Compensation payments are based on these determinations, and OWCP’s finding remains 

undisturbed until properly modified.13 Modification of a wage-earning capacity determination is 

unwarranted unless there is a material change in the nature and extent of the injury-related 

 

8 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see T.H., Docket No. 18-0704 (issued September 6, 2018).

9 See W.G., Docket No. 18-0374 (issued August 28, 2018).

10 T.H., supra note 8.

11 Id.

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determination of Whether Earnings Are Representative of 

the Wage-Earning Capacity, Chapter 2.815.5d (June 2013). 

13 See W.G., supra note 9; Katherine T. Kreger, 55 ECAB 633, 635 (2004).
5

condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original 

determination was erroneous.14 The burden of proof is on the party seeking modification.15

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify the August 12, 

2016 LWEC determination.16

Appellant asserts on appeal that the August 12, 2016 LWEC determination was erroneous 

because it was not based on the two jobs that he held when injured on November 4, 2012. He does 

not assert that he had established a material change in his employment-related condition or indicate 

that he had been retrained or otherwise vocationally rehabilitated. 

As the Board explained in the case Michael A. Wittman,

17 OWCP is not restricted from 

considering earnings from employment which commenced subsequent to the employment injury 

in determining whether the actual earnings of the subsequent employment fairly and reasonably 

represent an employee’s wage-earning capacity.18 If an employee’s earning capacity actually 

increases after the injury by the commencement of a job or earnings in a position which he did not 

have on the date of injury, whether or not similar to the federal employment at the time of injury, 

OWCP may consider such earnings as a factor in evaluating his or her wage-earning capacity.19 

At the time of the employee’s employment injury on November 4, 2012, he did not have concurrent 

employment with the City of Bloomington, which he began on June 16, 2014, 19 months after the 

employment injury. 

Thus, in the case at hand, the Board finds that OWCP properly applied the principles of 

section 8114(d) of FECA20 and determined that appellant had no loss of wage-earning capacity on 

August 12, 2016 because his weekly earnings in private employment with the City of Bloomington 

exceeded those of his federal employment. There is, therefore, no evidence to support that the 

August 12, 2016 LWEC determination was erroneous.

Appellant argues that in determining appellant’s loss of wage-earning capacity, his fulltime earnings at AFNI should have been added to his earnings from his part-time employment at 

the employing establishment, to determine his date-of-injury pay rate. The Board also notes that 

the case Irwin E. Goldman, 23 ECAB 6 (1971), established the principle that earnings from 

 

14 20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 

2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).

15 J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

16 5 U.S.C. § 8114(d).

17 43 ECAB 800 (1992). 

18 Id.

19 Id. 

20 5 U.S.C. § 8114(d). This provision provides the methodology for determining average annual earnings. See also

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4 (March 2011).
6

concurrent, dissimilar employment shall be excluded by OWCP when determining an injured 

federal employee’s pay rate. Thus, when appellant was injured on November 4, 2012 performing 

transportation security duties, his dissimilar employment at AFNI doing office work shall not be 

considered in his pay rate for compensation purposes. 

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met his burden of proof to modify the August 12, 

2016 LWEC determination.

ORDER

IT IS HEREBY ORDERED THAT the December 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 31, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board