United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Concord, NC, Employer

__________________________________________

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Docket No. 17-1104

Issued: December 6, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 26, 2017 appellant filed a timely appeal from an April 12, 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.2

ISSUE

The issue is whether appellant’s actual earnings as a modified bulk mail clerk fairly and 

reasonably represented her wage-earning capacity as of November 10, 2014.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the April 12, 2017 decision OWCP received additional evidence. 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

FACTUAL HISTORY

On August 15, 2013 appellant, then a 74-year-old bulk mail technician, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained an injury in the performance of duty on 

August 14, 2013 as a result of her attempt to catch a large, heavy parcel before it fell on the floor. 

OWCP accepted the claim for complete right rotator cuff rupture and authorized a July 17, 2014 

right shoulder surgery. OWCP paid appellant disability compensation.

In an August 29, 2014 report, Dr. Robert J. Morgan, a Board-certified orthopedic surgeon, 

released appellant to work that day with restrictions of no lifting above shoulder level with the 

right upper extremity; no lifting more than one pound waist to shoulder with the right upper 

extremity; no lifting floor to waist with the right upper extremity; and no ladder use.

On October 29, 2014 Dr. Morgan updated appellant’s work restrictions to no lifting over 

one pound above shoulder level with the right upper extremity; no lifting more than 5 pounds waist 

to shoulder with the right upper extremity; and no lifting more than 10 pounds floor to waist with 

the right upper extremity.

Effective November 10, 2014, appellant returned to work full-time as a modified bulk mail 

clerk, without wage loss. The duties included boxing mail, answering the door, answering 

telephones, processing nixie mail, and scanning and distributing accountable mail. The physical 

requirements included standing for three-and-a-half hours per day, reaching and fine manipulation 

for six hours per day, sitting for five hours per day, and lifting 10 pounds or less within appellant’s 

right arm restrictions for six hours per day.

On March 21, 2016 the employing establishment confirmed that appellant was still 

working the same modified assignment and advised that it was not a temporary position.

By decision dated April 12, 2017, OWCP found that appellant’s earnings as a modified 

bulk mail clerk fairly and reasonably represented her wage-earning capacity. It noted that 

appellant had demonstrated her ability to perform the assigned duties of the job for 60 days or 

more and; therefore, the modified bulk mail clerk position was considered suitable to the 

limitations of her partial disability. Because appellant’s actual weekly earnings as a modified bulk 

mail clerk met or exceeded the current wages of her date-of-injury position, OWCP determined 

that appellant had no loss of wage-earning capacity (LWEC).3

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.4 An employee’s actual 

earnings generally best reflect his or her wage-earning capacity.5 Absent evidence that actual 

 

3 Appellant’s weekly pay rate as a modified bulk mail clerk was $1,104.69, whereas her weekly pay rate on the date 

of injury was $1,057.83.

4 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

5 Hayden C. Ross, 55 ECAB 455, 460 (2004).
3

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 the wage-earning capacity determination, and OWCP’s 

finding remains undisturbed until properly modified.7

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 

is temporary where the claimant’s previous job was permanent.8 Additionally, a makeshift or oddlot position designed to meet an injured employee’s particular needs will not be considered 

representative of one’s wage-earning capacity.9

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

above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after he or she has successfully performed the required duties for at least 60 

days.10 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.11 

The burden of proof is on the party seeking modification of the wage-earning capacity 

determination.12

ANALYSIS

The Board finds that appellant’s actual earnings as a modified bulk mail clerk fairly and 

reasonably represented her wage-earning capacity. 

On November 10, 2014 the employing establishment offered appellant a position as a 

modified bulk mail clerk. The position description outlined various duties which included boxing 

mail, answering telephones, and processing, scanning, and distributing mail. The job offer 

acknowledged that appellant had right arm lifting restrictions. Accordingly, the physical 

requirements of the modified job offer included lifting 10 pounds or less within appellant’s right 

arm restrictions for six hours per day. Appellant successfully performed these from November 10, 

 

6

Id.

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

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.814.7a (October 2009).

9 A.J., Docket No. 10-0619 (issued June 29, 2010) (a makeshift/odd-lot position generally lacks a position 

description with specific duties, physical requirements, and a work schedule).

10 Supra note 8 at Chapter 2.814.7c(1).

11 Tamra McCauley, 51 ECAB 375, 377 (2000).

12 Id.
4

2014 to March 21, 2016, which is an indication that the position fairly and reasonably represented 

her wage-earning capacity.

While the employing establishment’s November 10, 2014 job offer sought to accommodate 

appellant’s injury-related limitations, the written job offer included details regarding which duties 

appellant was expected to perform and specific details regarding pay rate, tour of duty, location, 

and start date. The Board thus finds that the November 10, 2014 offer was not for a makeshift/oddlot position.13

 Appellant successfully performed the modified bulk mail clerk for at least 60 days, 

and the wages appellant earned beginning November 10, 2014 met or exceeded the current wages 

of her date-of-injury job. Accordingly, the Board finds that OWCP properly determined that 

appellant had no LWEC.

CONCLUSION

The Board finds that appellant’s actual earnings as a modified bulk mail clerk fairly and 

reasonably represented her wage-earning capacity. 

ORDER

IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 6, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

13 See A.J., supra note 9.