United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Francisco, CA, Employer

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Docket No. 18-1429

Issued: March 8, 2019

Appearances: Case Submitted on the Record

Denise Eaton-May, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On July 16, 2018 appellant, through counsel, filed a timely appeal from a January 31, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards docketed the appeal as No. 18-1429.

On October 15, 2007 appellant, then a 40-year-old part-time flexible clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on October 1, 2007 she sustained a right hand 

injury when she smashed her hand in a door. By decision dated November 5, 2007, OWCP 

accepted the claim for contusion of the right finger. It subsequently expanded the claim to 

include right wrist sprain, contusion of right wrist and hand, adhesive capsulitis of right shoulder, 

right upper extremity juvenile osteochondrosis, sprain of right elbow and forearm, and right 

ulnar collateral ligament. 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Appellant stopped work following the October 1, 2007 employment injury and received 

wage-loss compensation benefits. OWCP placed her on the periodic rolls beginning 

September 27, 2009. 

On August 10, 2009 OWCP noted that appellant was referred for vocational 

rehabilitation services and advised that the position of customer service representative was found 

to be vocationally and medically suitable.

On February 4, 2013 OWCP proposed to reduce appellant’s compensation benefits based 

on her capacity to earn wages of $400.00 per week as a customer service representative.

2

 It 

found that her wage-loss compensation should be reduced because she was no longer totally 

disabled and the position of customer service representative was medically and vocationally 

suitable, and fairly and reasonably represented her wage-earning capacity. Appellant was 

provided 30 days to submit evidence and argument challenging the proposed action. She did not 

respond. 

By decision dated March 7, 2013, OWCP finalized the reduction of appellant’s wage-loss 

compensation, effective March 10, 2013. The loss of wage-earning capacity (LWEC) 

determination was based on the position of customer service representative with the ability to 

earn $400.00 a week. 

On March 13, 2013 appellant, through counsel, contested the March 7, 2013 decision and 

requested an oral hearing before an OWCP hearing representative. A hearing was held on 

July 18, 2013. Appellant submitted various medical reports from her treating physicians in 

support of her claim for total disability. 

Ultimately, by decision dated June 16, 2014, OWCP affirmed the March 7, 2013 LWEC 

determination.

Following the denial of June 3, 2015 and August 29, 2016 reconsideration requests, on 

November 21, 2017 appellant requested reconsideration of OWCP’s decision and submitted 

additional medical evidence in support of her claim. 

Accompanying the reconsideration request was a brief dated November 14, 2017 wherein

counsel argued that OWCP had not met its burden to reduce her compensation benefits as 

appellant was totally disabled and unable to perform sedentary work. She further argued that the 

medical evidence submitted demonstrated that appellant was entitled to modification of her 

wage-earning capacity due to a material change and worsening of her medical condition such 

that she was incapable of performing the duties of a customer service representative. New

medical reports dated from January 26 through November 8, 2017 were also submitted. 

By decision dated January 31, 2018, OWCP denied appellant’s request for

reconsideration.

 

2 5 U.S.C. § 8115.
3

The Board, having duly considered the matter, concludes that the case is not in posture 

for decision and must be remanded for further development.3 

It is well established that a claimant may establish that a modification of a wage-earning 

capacity is warranted if there is a material change in the nature and extent of an injury-related 

condition, or a showing that the original determination was, in fact, erroneous.4 Although 

appellant requested reconsideration and counsel used the term reconsideration in her 

November 14, 2017 brief, counsel contended that OWCP committed error in its LWEC 

determination because appellant was incapacitated at the time the determination was issued and 

had requested a resumption of compensation for total wage loss.5 Counsel further argued that the 

newly submitted medical reports established a material change and worsening of her medical 

condition which warranted modification of the wage-earning capacity decision.

The Board finds that the November 21, 2016 request for reconsideration and 

accompanying November 14, 2017 brief from counsel constituted a request for modification of 

the March 7, 2013 LWEC determination. The Board has held that, when an LWEC

determination has been issued and appellant submits evidence with respect to one of the criteria 

for modification, OWCP must evaluate the evidence to determine if modification of wageearning capacity is warranted.6

 

The Board accordingly remands the case to OWCP for proper adjudication, to be 

followed by a de novo decision.7

 

3 N.M., Docket No. 17-0262 (issued July 3, 2017).

4 20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007).

5

Id. 

6 See W.W., Docket No. 09-1934 (issued February 24, 2010).

7 W.R., Docket No. 16-0098 (issued May 26, 2016).
4

IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action

consistent with this order. 

Issued: March 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board