United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.F., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, GILMER FEDERAL 

CORRECTIONS INSTITUTION, 

Glenville, WV, Employer

__________________________________________

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Docket No. 18-0323

Issued: June 25, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 4, 2017 appellant filed a timely appeal from a November 21, 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 the case.

ISSUE

The issue is whether appellant has met her burden of proof to modify a May 25, 2017 loss 

of wage-earning capacity (LWEC) determination.

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On April 14, 2009 appellant, then a 40-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) alleging that, while in the performance of duty on April 2, 2009, she was 

dragging a practice dummy during physical training and her left knee “went one way and the 

dummy went the other way,” causing a left knee strain. She stopped work on the date of injury.2

On April 14, 2009 appellant accepted a temporary alternate duty (TAD) assignment as a 

telephone monitoring officer at retained pay. She accepted extensions of this light-duty position 

through August 26, 2009.

OWCP accepted that appellant sustained a left knee strain. On September 10, 2009 it

expanded its acceptance of the claim to include a closed lateral dislocation of the left patella.

On October 2, 2009 appellant underwent an OWCP-approved diagnostic left knee 

arthroscopy with open medial patellofemoral ligament (MPFL) imbrication, performed by

Dr. George K. Bal, an attending Board-certified orthopedic surgeon. OWCP paid her wage-loss 

compensation on the supplemental rolls commencing October 2, 2009. Effective October 2, 2009 

appellant’s salary as a corrections officer at Grade 6, Step 1 was $769.54 week, or $40,016.00 a 

year.

Appellant returned to work on January 4, 2010 in the telephone monitor position. 

However, the position exceeded her postsurgical restrictions as it required inmate contact. The 

employing establishment placed appellant in a leave without pay (LWOP) status. OWCP resumed 

payment of wage-loss compensation on the supplemental rolls effective January 5, 2010.3

On April 22, 2010 Dr. Bal opined that appellant could perform full-time light duty with no 

inmate contact, emergency response, or running. Appellant returned to full-time work in the 

telephone monitor position, effective April 25, 2010, at an annual salary of $45,376.00. The 

employing establishment extended the position on June 22, 2010 at the same rate of pay. 

Appellant stopped work on October 25, 2010 to participate in a prescribed work-hardening 

program.4 OWCP resumed payment of compensation for total disability on the supplemental rolls 

commencing November 6, 2010. Dr. Bal continued to hold appellant off from work. 

As of June 7, 2011, appellant’s date-of-injury pay rate was $769.54 a week or $40,016.00 

a year. OWCP placed her case on the periodic compensation rolls effective July 3, 2011.5 

 

2 The employing establishment issued an authorization for examination and/or treatment (Form CA-16) on April 2, 

2009, which authorized appellant to seek treatment for a left knee injury sustained that day. 

3 Appellant received medical management nurse services in January to August 2010. 

4 As of October 25, 2010, appellant’s annual salary as a secretary was $45,376.00. 

5 On July 25, 2011 OWCP obtained a second opinion report from Dr. Barry A. Levin, a Board-certified orthopedic 

surgeon. Dr. Levin opined that appellant required a second surgery to stabilize her left knee. He limited appellant to 

light-duty work pending surgery.
3

On September 6, 2011 appellant returned to work in a temporary-duty assignment as a

discipline hearing officer (DHO) secretary at Grade 6, Step 5, with an annual salary of $45,376.00.

6

She accepted an extension of the position on October 24, 2012.

On January 25, 2013 Dr. Joseph J. Fazalare, an attending Board-certified orthopedic 

surgeon, performed an authorized MPFL revision to address left patellar instability. OWCP paid 

appellant wage-loss compensation for temporary total disability on the supplemental rolls 

commencing January 25, 2013 based on her annual salary of $46,540.00. It noted that she was 

entitled to a recurrent pay rate as the January 25, 2013 work stoppage constituted a second 

recurrence of disability.

7

On April 30, 2013 Dr. Fazalare performed an authorized closed manipulation of the left 

knee under anesthesia. OWCP continued to pay appellant wage-loss compensation at the recurrent 

pay rate based on her salary as of January 25, 2013.

In a letter dated May 31, 2013, the employing establishment advised that it would offer 

appellant her assigned temporary position as a DHO secretary in an office setting. Appellant would 

not be required to respond to emergencies or to run. The employing establishment would 

accommodate appellant’s attendance at physical therapy appointments if she could also work four 

hours on those days.

On June 18, 2013 appellant returned to work for six hours a day, two days a week in a TAD 

assignment as a DHO secretary. She increased her work schedule to eight hours a day, three days 

a week as of July 29, 2013. OWCP paid appellant wage-loss compensation for the remaining 

hours.

In a report dated December 17, 2013, Dr. Fazalare related that appellant had sustained a 

new misalignment of the left patella while descending a flight of stairs. He restricted her from 

firearms training and responding to emergencies. In a report dated February 19, 2014, Dr. Fazalare 

opined that appellant had attained maximum medical improvement (MMI).

8

On September 17, 2014 appellant accepted an extension of her TAD assignment as DHO 

secretary, with no response to emergency situations. 

 

6 By decision dated September 21, 2012, OWCP found that appellant was not entitled to a recurrent pay rate as she 

had not resumed regular-full-time employment for more than six months after the accepted injury. On October 16, 

2012 appellant requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. 

At the hearing held on February 15, 2013, appellant contended that she was entitled to a recurrent pay rate as she 

performed full-time work in the temporary secretarial position from April 25 to October 25, 2010, a period of six 

months. By decision dated May 2, 2013, OWCP’s hearing representative affirmed the September 21, 2012 decision.

7 Appellant participated in physical therapy treatments in February/September 2013. She received medical 

management nurse services from April to September 2013.

8

In a December 29, 2014 e-mail, the employing establishment confirmed that appellant’s date-of-injury position 

as a law enforcement officer required her to walk and stand up to one hour, perform self-defense maneuvers, run for 

an extended distance, drag a body an extended distance, carry a stretcher with one other person, climb stairs, and lift 

25 pounds.
4

On September 26, 2014 OWCP expanded the acceptance of appellant’s claim to include 

“other joint derangement, lower leg, left patella instability.”

In a report dated March 18, 2015, Dr. Paul Bachwitt, a Board-certified orthopedic surgeon

consulting to the employing establishment, found appellant unable to perform essential functions

of her date-of-injury position. He opined that she had not attained MMI. 

On May 12, 2015 appellant filed a claim for compensation (Form CA-7) for wage loss for

the period May 10, 2015 and continuing. She provided a narrative report and work excuse slip

dated May 11, 2015 from Dr. Charles E. Giangarra, an attending Board-certified orthopedic 

surgeon. Dr. Giangarra opined that appellant’s accepted left knee condition required additional 

surgery to assess the structural integrity of the articular cartilage. He held her off work 

commencing May 11, 2015. OWCP paid appellant wage-loss compensation for total disability 

commencing May 11, 2015.9

In a letter dated May 12, 2015, the employing establishment notified appellant that she had 

been unable to perform the duties of her date-of-injury position since April 2, 2009, and that there 

were no positions available within her medical restrictions. 

OWCP placed appellant’s case on the periodic rolls effective December 13, 2015. It paid 

her compensation based on her actual earnings as of May 11, 2015, the recurrent pay rate.

On February 1, 2016 OWCP obtained a second opinion regarding appellant’s work 

capacity from Dr. Saghir U.R. Mir, a Board-certified orthopedic surgeon. Dr. Mir diagnosed

chondromalacia of the left patella. He opined that appellant could not perform her date-of-injury 

position, but could return to sedentary or light-duty work with permanent restrictions against 

prolonged walking, standing, or climbing steps.

On February 25, 2016 OWCP expanded the acceptance of appellant’s claim to include 

chondromalacia of the left patella. 

As Dr. Mir found that appellant was not totally disabled from work, OWCP referred her 

for vocational rehabilitation on February 25, 2016.10

In a letter dated April 11, 2016, the employing establishment noted that Dr. Mir’s 

February 1, 2016 restrictions precluded appellant from resuming a permanent position. 

 

9 By decision dated July 17, 2015, OWCP denied appellant’s claim for wage-loss compensation commencing 

May 11, 2015 as there was insufficient medical evidence of record to establish disability for the dates claimed. On 

August 24, 2015 appellant requested reconsideration. By decision dated September 1, 2015, OWCP denied 

modification based on a lack of medical evidence finding her totally disabled for work for the claimed period. On 

September 15, 2015 appellant requested reconsideration. By decision dated December 11, 2015, OWCP vacated its 

September 1, 2015 decision and accepted her claim for wage-loss compensation for total disability commencing 

May 11, 2015.

10 The vocational rehabilitation counselor noted that appellant had a bachelor’s degree in sports management with 

a minor in business. She had worked as a secretary, receptionist, fund raiser, athletic trainer, and corrections officer. 
5

Following a vocational rehabilitation effort, on March 19, 2017, appellant began work at 

the employing establishment’s Drug Enforcement Administration (DEA) as a clerk, GS-0303-05, 

Step 10, at an annual salary of $42,702.00.

In a May 1, 2017 e-mail, the employing establishment confirmed that appellant’s date-ofinjury pay rate as a GS-6, Step 1 corrections officer was $42,715.00 a year. When she stopped 

work on May 10, 2015, her annual salary as a GS-6, step 7 DHO secretary was $50,040.00.

By decision dated May 25, 2017, OWCP found that appellant had no LWEC. Appellant

had been employed as a clerk full time commencing March 19, 2017, a period of more than 60 

days, with weekly wages of $821.19. Effective May 1, 2017, the current pay rate for her date-ofinjury job and step when injured was $821.44 a week. When rounded to the nearest percentage 

point as required by the Shadrick11 formula used to determine wage-earning capacity, OWCP 

found that appellant had no LWEC as her current actual earnings were essentially equal to the 

current pay rate for her date-of-injury position.

On June 22, 2017 appellant requested a review of the written record by an OWCP hearing 

representative. She contended that her annual salary as a DEA clerk was $7,338.00 less than her 

salary as of May 11, 2015 when she stopped work at the employing establishment.

By decision dated September 19, 2017, an OWCP hearing representative set aside OWCP’s

May 25, 2017 LWEC determination and remanded the case to determine whether the offered DHO 

secretary position was a regular, classified position. 

On remand, the employing establishment submitted a September 25, 2017 letter reasserting 

that the positions of correctional officer and DHO secretary were legitimate classified positions 

announced on a public internet job site and open to all qualified applicants. The telephone monitor 

position had since been abolished. As of April 29, 2009, appellant had been correctional officer 

at Grade 6, Step 1 with annual earnings of $40,016.00. On January 3, 2010 she had been promoted 

to senior correctional officer, Grade 7, Step 2, at an annual salary of $45,258.00. As of April 11, 

2010, appellant accepted a transfer to DHO secretary, Grade 6, Step 5, with an annual salary of 

$45,376.00. While working as a DHO secretary, she received cost of living and within-grade step 

increases through January 8, 2017, at which time her Grade 6, Step 7 salary was $50,040.00. 

Appellant’s annual salary remained at $50,040.00 as of March 18, 2017 when she stopped work at 

the employing establishment. She began work at the DEA on March 19, 2017 as a Grade 5, Step 

10 clerk, with annual wages of $42,702.00. The employing establishment provided official 

position descriptions for each job. 

By decision dated November 21, 2017, OWCP denied modification of the May 25, 2017 

LWEC determination. It found that appellant’s actual earnings as a DEA clerk were $821.19 a 

week, approximately equal to the current pay of her date-of-injury position as a corrections officer 

of $821.44 a week. Therefore, she had no LWEC. 

 

11 Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d). 
6

LEGAL PRECEDENT

A wage-earning capacity decision is a determination that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination.12

Under section 8115(a) of FECA,13 wage-earning capacity is determined by the actual

wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. Generally, wages actually earned are the best measure of wage-earning capacity

and, in the absence of evidence showing that they do not fairly and reasonably represent the injured

employee’s wage-earning capacity, must be accepted as such measure.14 The formula for

determining LWEC, developed in the case of Albert C. Shadrick15 has been codified at section 

10.403(c)-(e) of OWCP’s regulations.16 

Under the Shadrick formula, OWCP calculates an employee’s wage-earning capacity in 

terms of percentage by dividing the employee’s actual or constructed earnings (as entered in item 

(3) of the Shadrick formula) by the current or updated pay rate for the position held at the time of 

injury as entered in item (2).

17

 The employee’s wage-earning capacity in dollars is computed by 

first multiplying the pay rate for compensation purposes, defined in 20 C.F.R. § 10.5(s) as the pay 

rate at the time of injury, the time disability begins, or the time disability recurs (if the recurrence 

begins more than six months after the injured employee resumes regular full-time employment 

with the United States), whichever is greater (as entered in item (1) of the Shadrick formula), by 

the percentage of wage-earning capacity as entered in item (4). The resulting dollar amount is 

entered as item (5) of the Shadrick formula, then subtracted from the pay rate for compensation 

purposes to obtain LWEC as entered in item (6).

18

 The regulations further provide that the 

employee’s wage-earning capacity in terms of percentage is computed by dividing the employee’s 

earnings by the current pay rate.19

Factors to be considered in determining if a position fairly and reasonably represents the 

injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour 

of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part time 

(unless the claimant was a part-time worker at the time of injury), or sporadic in nature; (3) whether 

the job is seasonal in an area where year-round employment is available; and (4) whether the job 

 

12 See Sharon C. Clement, 55 ECAB 552 (2004).

13 5 U.S.C. § 8115(a). 

14 D.M., Docket No. 16-1527 (issued July 25, 2017); D.P., Docket No. 14-0301 (issued July 16, 2014).

15 5 ECAB 376 (1953). 

16 20 C.F.R. § 10.403(c)-(e). 

17 Id. at § 10.403(c)-(d). 

18 Id. at § 10.403(e). 

19 Id. at § 10.403(d). See also R.E., Docket No. 17-1288 (issued May 16, 2018); C.H., Docket No. 13-1369 (issued 

September 24, 2014).
7

is temporary where the claimant’s previous job was permanent.20 Additionally, a makeshift or 

odd-lot position designed to meet an injured employee’s particular needs will not be considered 

representative of one’s wage-earning capacity.21

Assuming the position is both vocationally and medically suitable and conforms to the 

above-noted criteria, and there is no work stoppage due to the accepted condition(s), a formal 

LWEC determination should be issued following 60 calendar days from the date of return to 

work.22 If the injured employee is no longer working in the alternative position upon which a 

rating is being considered, OWCP may consider a retroactive LWEC.23 However, this is rare and 

should only be made where the employee worked in the position for at least 60 days, the 

employment fairly and reasonably represented his or her wage-earning capacity as outlined under 

FECA Chapter 2.815.5, and the subsequent work stoppage or change in the alternative position(s) 

did not occur because of any change in the employee’s injury-related condition affecting his or her 

ability to work.24

The Board had held that it is inappropriate to issue a retroactive wage-earning capacity

determination when there is a pending claim for compensation.25 The Board has also found a

retroactive wage-earning capacity determination to be inappropriate when the employee submitted 

medical evidence showing that his or her employment-related injury had progressed.26 The Board 

has also noted that the pay rates of the date-of-injury job and the new job should be compared as 

of the time that the formal LWEC decision is being prepared, unless there are compelling reasons 

to use a different date.27

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.28 OWCP’s procedures provide 

that, “[i]f a formal [LWEC] decision has been issued, the rating should be left in place unless the 

claimant requests resumption of compensation for total wage loss. In this instance the CE [claims 

examiner] will need to evaluate the request according to the customary criteria for modifying a 

 

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Modification of Loss of Wage-Earning 

Capacity Decisions, Chapter 2.1501(3)a (June 2013). 

21 A.J., Docket No. 10-0619 (issued June 29, 2010).

22 D.M., supra note 14; D.P., supra note 14; supra note 20 at Chapter 2.815.6(a).

23 D.M., supra note 14; D.P., supra note 14; supra note 20 at Chapter 2.815.7.

24 Id.

25 C.H., supra note 19.

26 Id.

27 C.H., supra note 19. See also Kit C. Jeh, Docket No. 03-1085 (issued July 12, 2004).

28 J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 

45 ECAB 211 (1993).
8

formal [LWEC].”

29

 The burden of proof is on the party attempting to show a modification of the 

wage-earning capacity determination.30

ANALYSIS

The Board finds that appellant has not met her burden of proof to modify the May 25, 2017 

LWEC determination.

OWCP accepted that on April 2, 2009 appellant sustained a left knee strain, closed 

dislocation of the left patella, and left patellar instability while in the performance of duty. At the 

time of her April 2, 2009 employment injury, appellant was working full time as a corrections 

officer at the Grade 6, Step 1 pay level, with annual wages of $40,016.00. On April 14, 2009 she 

resumed work in a regular, classified position in temporary status as a telephone monitoring 

officer. Following authorized surgery on October 2, 2009, appellant resumed work as a telephone 

monitoring officer from January 4 to October 25, 2010. On September 6, 2011 she resumed work 

as a DHO secretary. Appellant again stopped work on January 25, 2013 to recover from authorized 

left knee surgery. She resumed work part time as a secretary on June 18, 2013, increasing 

gradually to full-time work. Appellant performed the secretarial position through May 11, 2015, 

when her attending physician held her off from work due to the accepted left knee conditions. 

OWCP paid appellant wage-loss compensation based on her recurrent pay rate as of May 11, 2015 

as she had returned to regular, full-time work for more than six months following the accepted 

April 2, 2009 left knee injury.

Following vocational rehabilitation, appellant began work on March 19, 2017 as a DEA 

clerk at GS-5, Step 10, with annual wages of $42,702.00. She continued working in this position 

and in a decision dated May 25, 2017, OWCP determined that her current position of DEA clerk 

in which she was employed since March 19, 2017 fairly and reasonably represented her wageearning capacity. It reduced her wage-loss compensation to zero noting that she had a LWEC of 

zero percent because her actual earnings met or exceeded the current wages of the corrections 

officer job she held when injured on April 2, 2009. By decision dated November 21, 2017, OWCP 

affirmed its May 25, 2017 LWEC determination. 

The Board finds that OWCP properly determined that appellant’s actual wages as a DEA 

clerk since March 19, 2017 fairly and reasonably represented her wage-earning capacity. The 

record does not establish that the DEA clerk position constituted part-time, sporadic, seasonal, or 

temporary work, nor does the record reveal that the position was a make-shift job designed for 

appellant’s particular needs.31 Moreover, OWCP made its May 25, 2017 LWEC determination 

after she had been working in the position for more than 60 days.32

 

29 Supra note 20 at Chapter 2.814.9(a) (June 2013). See Harley Sims, Jr., 56 ECAB 320 (2005).

30 J.A., supra note 28; Selden H. Swartz, 55 ECAB 272, 278 (2004).

31 C.H., supra note 19.

32 D.M., supra note 14; D.P., supra note 14; supra note 20 at Chapter 2.815.6(a).
9

Appellant contended that the May 25, 2017 LWEC determination was erroneous. She 

asserted that OWCP improperly applied the Shadrick formula to determine that she had an LWEC 

of zero percent.33 Appellant argued that, rather than using her current wages in the clerk position 

in line (3) of its Shadrick formula calculation, OWCP should have used her wages from May 11, 

2015, her recurrent pay rate as set forth in line (1) of the Shadrick formula calculation. In effect, 

she has argued that OWCP should have performed a retroactive LWEC determination. 

The Board finds that OWCP properly applied the Shadrick formula to determine that 

appellant had zero percent LWEC. In its May 25, 2017 determination as affirmed by decision 

dated November 20 and finalized on November 21, 2017, OWCP properly used appellant’s weekly 

pay rate of $935.94 from her secretary position on May 11, 2015 when disability recurred in line 

(1) of the Shadrick formula. Use of this figure was proper because it represented the highest figure 

of appellant’s pay at the time of injury, the monthly pay at the time disability began, or the monthly 

pay at the time disability recurred, if the recurrence began more than six months after the injury.34 

Appellant has not contested OWCP’s calculation of line (2) of the Shadrick formula. On 

May 1, 2017 OWCP obtained information from the employing establishment that the current 

weekly pay rate for her job and step when injured was $821.44 a week. The Board notes that 

OWCP properly entered this amount as line (2) of the Shadrick formula.

Appellant has contested OWCP’s calculation of line (3) of the Shadrick formula. OWCP 

used her actual weekly earnings as a clerk, effective May 1, 2017, of $821.19 in line (3) of the 

Shadrick formula. Appellant asserts that OWCP should have performed a retroactive LWEC 

calculation on line (3) based on her actual wages on May 11, 2005 when disability recurred, 

$935.94 a week.

The Board finds, however, that a retroactive LWEC determination is not appropriate in this 

case. As noted above, OWCP regulations provide, the comparison of earnings and current pay 

rate for the job held at the time of injury need not be made at the beginning of partial disability. 

OWCP may use any convenient date for making the comparison as long as both wage rates are in 

effect on the date used for comparison.35 Also, as noted above, a retroactive LWEC should not be 

made where a subsequent work stoppage occurred because of any change in the employee’s injury-

 

33 See supra notes 17 through 19 regarding the application of the Shadrick formula.

34 5 U.S.C. § 8101(4) defines “monthly pay” for purposes of computing compensation benefits as follows: “[T]he 

monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time 

compensable disability recurs, if the recurrence begins more than six months after the injured employee resumes 

regular full-time employment with the United States, whichever is greater....” 5 U.S.C. § 8105(a) of FECA provides: 

“If the disability is total, the United States shall pay the employee during the disability monthly monetary 

compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic compensation for total 

disability.” 5 U.S.C. § 8110(b) of FECA provides that total disability compensation will equal three-fourths of an 

employee’s monthly pay when the employee has one or more dependents. OWCP’s regulations define “disability” as 

“the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury.” 

20 C.F.R. § 10.5(f).

35 20 C.F.R. § 10.403(d).
10

related condition affecting his or her ability to work.36 In the case at bar, appellant stopped work 

in the DHO secretary position on May 11, 2015 due to a change in her accepted left knee 

conditions. Therefore, the most appropriate method for OWCP to calculate line (3) of the Shadrick 

formula was to use appellant’s actual wages contemporaneous with the date of the decision. 

OWCP properly compared her wage rates in lines (2) and (3) as of May 1, 2017 and issued its 

LWEC determination soon thereafter on May 25, 2017. Because its calculations showed that 

appellant was able to earn the current wages of the position she held when injured on April 2, 

2009, she had no disability within the meaning of FECA.37

For these reasons, OWCP properly determined that appellant had no LWEC and reduced 

her wage-loss compensation to zero after finding that her actual wages as a clerk properly 

represented her wage-earning capacity.38 Therefore, appellant has not demonstrated that OWCP’s 

May 25, 2017 LWEC determination, as affirmed on November 21, 2017, was in error. She has 

not met her burden of proof that the LWEC determination should be modified.

39

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 her burden of proof to modify the May 25, 2017 

LWEC determination.

 

36 Federal (FECA) Procedure Manual at Chapter 2.815.7. See also D.M., supra note 14 and D.P., supra note 14.

37 20 C.F.R. § 10.5(f). See also C.H., supra note 19.

38 Id.

39 J.A., supra note 28.
11

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated November 21, 2017 is affirmed.

Issued: June 25, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board