United States Department of Labor

Employees’ Compensation Appeals Board

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A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Coppell, TX, Employer

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Docket No. 18-0370

Issued: March 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 4, 2017 appellant filed a timely appeal from a June 8, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards

assigned Docket No. 18-0370.1

Appellant has two accepted claims which have been consolidated. In a case adjudicated 

by OWCP under File No. xxxxxx935, it accepted a March 26, 2001 occupational disease claim 

(Form CA-2) for neck and right shoulder sprains, brachial plexus lesions, right carpal tunnel 

syndrome, and other congenital anomalies of muscle, tendon, fascia, and connective tissue on the 

right. OWCP also accepted a 2006 occupational disease claim, adjudicated under OWCP File No. 

xxxxxx300, for brachial neuritis or radiculitis and left carpal tunnel syndrome. These claims have 

been administratively combined with OWCP File No. xxxxxx935 serving as the master file. 

 

1 The Board notes that appellant submitted evidence with her appeal to the Board. However, the Board’s Rules of 

Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP 

at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on 

appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first 

time on appeal. Id.
2

By decisions dated March 21, 2006 and July 1, 2009, OWCP determined that appellant’s 

actual earnings as a modified mail processing clerk fairly and reasonably represented her wageearning capacity. It found that appellant had a zero loss of wage-earning capacity.

2

Under OWCP File No. xxxxxx935, beginning in September 2016, appellant filed claims 

for compensation (Form CA-7) for wage loss beginning March 12, 2016 and continuing. In merit 

decisions dated November 9, 2016 and June 8, 2017, OWCP denied appellant’s claims for 

disability compensation.3

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

decision. 

Appellant’s submission of claims for compensation for disability beginning March 12, 

2016 and continuing indicates that she believed the accepted conditions had materially worsened 

such that she could no longer work. The claim should therefore be regarded as a request for 

modification of the July 1, 2009 loss of wage-earning capacity (LWEC) determination. The Board 

has held that, when an LWEC determination has been issued and appellant submits evidence with 

respect to disability for work, OWCP must evaluate the evidence to determine if modification of 

the LWEC determination is warranted.4 OWCP procedures specifically provide that if a formal 

LWEC decision has been issued and the claimant subsequently alleges a worsening of the accepted 

condition or conditions, such claim should be processed in accordance with procedures for 

modifying a formal LWEC decision.5 In this case, in its June 8, 2017 decision, OWCP adjudicated 

appellant’s claims for disability without any reference to the LWEC determination.

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.6 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.7

The Board finds that OWCP should have determined whether appellant had established 

that the March 21, 2006 LWEC determination should be modified based on a worsening of the 

 

2

In a decision dated June 22, 2011, OWCP found that appellant had established that the loss of wage-earning 

capacity (LWEC) determination should be modified during the time period April 14 through June 3, 2011.

 

3 Appellant also filed a recurrence claim (Form CA-2a) alleging a recurrence of disability on March 12, 2016 under 

File No. xxxxxx300. By decision dated December 20, 2016, OWCP denied this recurrence claim. On February 15, 

2017 OWCP denied appellant’s request for a hearing from the December 20, 2016 decision. Appellant did not file an 

appeal with the Board from either decision.

4 E.H., Docket No. 17-0963 (issued August 24, 2018).

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

Criteria for Modification, Chapter 2.1501.3.a.2 (June 2013).

6 B.C., Docket No. 18-0407 (issued September 17, 2018).

7

Id.
3

accepted conditions.

8

 The Board will therefore remand the case to OWCP for proper adjudication, 

to be followed by issuance of a de novo decision to preserve appellant’s appeal rights.9

IT IS HEREBY ORDERED THAT the June 8, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this order of the Board.

Issued: March 5, 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

 

8 See H.J., Docket No. 16-1573 (issued September 5, 2017).

9

Id.