United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Honolulu, HI, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0186

Issued: August 2, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 5, 2018 appellant filed a timely appeal from an October 4, 2018 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 OWCP met its burden of proof to modify a July 15, 2014 loss of wageearning capacity (LWEC) determination, effective October 7, 2018.

FACTUAL HISTORY

On November 27, 2011 appellant, then a 55-year-old data collection technician, filed a 

traumatic injury claim (Form CA-1) alleging that on November 26, 2011 he sustained a low back 

injury when attempting to lift flat tubs from the back of a web cage while in the performance of 

 

1 5 U.S.C. § 8101 et seq.
2

duty. On January 20, 2012 OWCP accepted the claim for lumbago. Appellant stopped work on 

November 26, 2011 and received continuation of pay for the 45-day period commencing 

November 27, 2011. It began paying him compensation benefits on the supplemental rolls 

effective February 4, 2012, and on the periodic rolls effective March 9, 2014. Appellant resigned 

from employment due to medical reasons effective August 11, 2014. 

On July 19, 2013 OWCP referred appellant for, and he participated in, vocational 

rehabilitation services. Based on labor market analysis prepared by the vocational rehabilitation 

specialist, by letter dated June 3, 2014, OWCP proposed to reduce appellant’s wage-loss 

compensation due to his ability to earn wages as a general clerk. 

By decision dated July 15, 2014, OWCP reduced appellant’s compensation, effective 

July 8, 2014, based on his ability to earn wages in the constructed position of general clerk

(clerical), Department of Labor’s Dictionary of Occupational Titles (DOT) # 209.562-010, at the 

rate of $360.00 a week. Following a March 6, 2015 telephonic hearing regarding the LWEC 

determination, by decision dated May 21, 2015, an OWCP hearing representative affirmed the 

July 15, 2014 LWEC determination.

Appellant was treated by Dr. Bernard M. Portner, a Board-certified physiatrist, from 

November 18, 2016 to May 26, 2017, for low back pain from a work-related injury on 

December 7, 2015. He reported currently working a desk job. Dr. Portner diagnosed displacement 

of lumbar intervertebral disc without myelopathy, lumbar spine instability, work-related injury 

caused by lifting, lumbago, and somatic dysfunction of sacral region. He noted that appellant 

continued his full-time desk job and recommended chiropractic treatment and a weight loss 

regimen. 

In a Form EN1032, signed May 14, 2017, appellant reported working for the VA in an 

administrative support position with actual earnings of $41,768.90. He noted dates of employment 

as December 31, 2014 to the present. Appellant submitted a notification of personnel action (Form 

SF50) approved on January 7, 2017, from the Department of Veterans Affairs (VA), who advised 

that appellant was employed as a program support assistant with pay of $41,768.90 a year effective 

January 8, 2017.

In a letter dated May 16, 2018, OWCP informed the employing establishment that 

appellant returned to work for the VA as a program support assistant. It noted that he was currently 

receiving compensation for his LWEC pursuant to the July 15, 2014 LWEC determination. 

OWCP advised that on the date of injury appellant was a data collection technician, level seven, 

step zero and requested the current salary for this position.

In a separate letter dated May 16, 2018, OWCP requested that the VA provide pay rate 

information for the position of program support assistant effective May 16, 2018 including 

premium pay.

On May 24, 2018 the employing establishment indicated that the current salary of a data 

collection technician, level seven, step zero was $61,335.00.
3

On June 5, 2018 OWCP acknowledged receipt of the CA-1032 in which appellant reported 

that he was employed by the VA in a position processing disability claims. It noted that on July 15, 

2014 appellant’s compensation was reduced to reflect his ability to earn wages as a general clerk. 

OWCP requested that appellant submit additional information regarding his employment, 

specifically his grade and step, job title, job duties, whether he underwent additional training or 

schooling for the position, and his latest earnings statement.

The VA responded to OWCP’s May 16, 2018 request for information and indicated that

the salary for a program support assistant, full-time GS-7, Step 1, effective May 16, 2018, was 

$42,462.00 with no night differential or Sunday pay. 

In a letter dated May 28, 2018, received on June 8, 2018, appellant indicated that he 

assumed a new position at the VA on August 22, 2017. Appellant submitted a notification of 

personnel action, Standard Form (SF50), dated August 20, 2017 which noted that he changed 

positions from a program support assistant to a veteran service representative effective 

August 20, 2017. It noted the initial probationary period was completed. The VA indicated that 

the position has known promotion potential and the determination on promotion to the next higher 

grade would be made by August 19, 2018. In a notification of personnel action (SF50) approved 

January 7, 2018, the salary for the position of veteran service representative was $47,129.00.

On June 14, 2018 OWCP referred appellant’s file to vocational rehabilitation for updated 

labor market information for a general clerk, DOT #209.562-010. In a July 3, 2018 report, the 

vocational rehabilitation counselor conducted a labor market survey for general clerk, DOT 

#209.562-010 and provided an updated Form CA66. The current salary for DOT#209.562-010 

general clerk in the claimant’s labor market was $476.00 a week.

Effective August 19, 2018, appellant was promoted to a GS-9, step 1 with earnings of 

$51,940.00 a year plus a cost-of-living increase of 10.99 percent. In a Shadrick2 documentation 

memorandum dated August 20, 2018, OWCP determined that for a data collection technician the 

total weekly pay for the grade and step for the date of injury November 26, 2011 was $1,396.28. 

It further noted that the total current weekly pay, effective August 19, 2018, for the grade and step 

for a data collection technician was $1,578.13. OWCP calculated that the actual earnings on which 

the wage-earning capacity was based for a veteran service representative $1,108.62.

On August 27, 2018 OWCP proposed to modify the formal LWEC determination issued 

on July 15, 2014 because the evidence of record substantiated that appellant was vocationally 

rehabilitated, had obtained additional training, education, and qualification, and was employed in 

a new job “which pays 25 percent more that the current pay of the job in which [the] wage-earning 

capacity was previously determined on July 15, 2014.” It indicated that appellant was previously 

rated as a general clerk and was now employed as a veteran service representative. The job as a 

veteran service representative paid $1,108.62 a week and the current pay for the job for which the 

wage-earning capacity was previously determined was $476.00 a week. OWCP determined that 

$1,108.62 was “at least” 25 percent more than $476.00. In an accompanying “computation of 

compensation,” it determined that appellant had 70 percent wage-earning capacity when dividing 

 

2 Albert C. Shadrick, 5 ECAB 376 (1953).
4

the amount that he was capable of earning as a veteran service representative, $1,108.62, by the 

pay rate for the position of general clerk (clerical), $1,578.13.

On September 4, 2018 appellant explained his disagreement with the proposed 

modification of his July 15, 2014 LWEC determination and submitted additional medical 

evidence.

Appellant submitted a report from Dr. Spencer Lau, an osteopath, dated July 30, 2018 who 

treated him for bilateral low back pain, stable, from a workers’ compensation lifting injury on 

November 26, 2011. Dr. Lau noted findings on examination of the lumbar spine of restriction with 

range of motion, facet loading was painful, and intact reflexes, motor strength, and sensation. He

diagnosed displacement of the lumbar intervertebral disc without myelopathy, sacral region 

somatic dysfunction, low back pain, and work-related injury. Dr. Lau noted that appellant 

currently had a “desk job” at the VA.

By decision dated October 4, 2018, OWCP modified the July 15, 2014 LWEC 

determination. It found that appellant had obtained additional training and was employed at the 

VA in a position which paid 25 percent more than the current pay for the job for which his wageearning capacity was previously determined on July 15, 2014, i.e., general clerk (clerical) position. 

OWCP concluded: “The LWEC determination issued on July 15, 2014 has been modified. A 

decision that addresses your current wage-earning capacity will be issued under separate cover.”

In a separate decision of even date, OWCP advised appellant that, effective October 7, 2018, it 

would reduce his compensation benefits based on his actual earnings as a veteran service 

representative, which commenced on August 22, 2017. It found that as he had performed the 

duties of this position for two or more months, OWCP concluded that it fairly and reasonably 

represented appellant’s wage-earning capacity and “is considered suitable to [his] partially 

disabled condition.” OWCP provided a computation of compensation which revealed that 

appellant had 70 percent wage-earning capacity when comparing his actual earnings of $1,108.62 

to the current pay rate for his date-of-injury position of $1,578.13, i.e., ($1,108.62 divided by 

$1,578.13).

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.3 A loss of wage-earning 

capacity 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.4 

Generally, an employee’s actual earnings best reflect his wage-earning capacity.5 Absent evidence 

 

3 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995). 

4 See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

5 Hayden C. Ross, 55 ECAB 455, 460 (2004). 
5

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.6

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

undisturbed until properly modified.

7

 Modification of a wage-earning capacity determination is 

unwarranted 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 erroneous.

8

 The burden of proof is on the party seeking modification.9

ANALYSIS

The Board finds that OWCP has met its burden of proof to establish that the July 15, 2014 

LWEC determination should be modified, effective October 8, 2018.

Following vocational rehabilitation services, on July 15, 2014 a formal decision was issued 

reducing appellant’s compensation as he had the capacity to earn wages as a general clerk. As 

noted, modification of such determination is only warranted where the party seeking modification 

establishes either that there was 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 erroneous.10 

The evidence substantiates that appellant is employed in a new position as a veteran service 

representative. On a Form EN1032 signed May 14, 2017, appellant advised that he returned to 

work on December 31, 2014 for the VA in an administrative support position with actual earnings 

of $41,768.90. In a notification of personnel action (Form SF-50) approved January 7, 2017, the 

VA advised that appellant was employed as a program support assistant. Appellant was appointed 

to the position of a veteran service representative on August 20, 2017 and effective August 19, 

2018 he was promoted to a GS-9, step 1 with earnings of $51,940.00 a year plus a cost-of-living 

increase of 10.99 percent. 

On July 3, 2018 the vocational rehabilitation counselor conducted an updated labor market 

survey for general clerk, DOT #209.562-010. The current salary for DOT# 209.562-010 general 

clerk in the claimant’s labor market was $476.00 a week. The evidence reveals that actual earnings 

on which the wage-earning capacity was based for a veteran service representative was $1,108.62 

a week which is greater than 25 percent more than the current pay for the job for which his wage-

 

6

Id.

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

8 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). 

9

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

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

Chapter 2.1501.3 (June 2013).
6

earning capacity was previously determined on July 15, 2014. The Board finds that OWCP 

established the criteria for modifying the loss of wage-earning capacity determination, specifically 

that appellant has been retrained or otherwise vocationally rehabilitated.11

Appellant asserted that he would experience financial hardship if his compensation was 

modified. However, his assertion does not addressthe issue in this case -- whether OWCP properly 

modified the July 15, 2014 wage-earning capacity determination. There is no evidence that the 

physical requirements of the position were outside his physical ability as Dr. Lau acknowledged 

on July 30, 2018 that appellant was currently working at a desk job with the VA.

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

evidence or argument, at any time before OWCP. 

CONCLUSION

The Board finds that OWCP met its burden of proof to modify the July 15, 2014 LWEC 

determination, effective October 7, 2018.

 

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

Chapter 2.1501.3 and Chapter 2.1501.8(c) (June 2013).
7

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2018 decisions of the Office of 

Workers’ Compensation Programs are affirmed. 

Issued: August 2, 2019

Washington, DC

Christopher J. Godfrey, 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