United States Department of Labor

Employees’ Compensation Appeals Board

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B.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer

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Docket No. 18-1515

Issued: June 20, 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

JANICE B. ASKIN, Judge

On August 2, 2018 appellant filed a timely appeal from a July 23, 2018 decision of the 

Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards

assigned the appeal Docket No. 18-1515.

On December 23, 2007 appellant, then a 52-year-old mail processor, filed an occupational 

disease claim (Form CA-2) for a left upper extremity condition that she attributed to factors of her 

federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome, bilateral 

benign neoplasm of the connective and soft tissue of the upper limb including the shoulder, and 

chronic pain syndrome.2 It paid appellant wage-loss compensation on the supplemental rolls 

beginning January 1, 2009 and on the periodic rolls beginning July 5, 2009.

 

1 The Board notes that appellant submitted additional evidence on appeal. 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 OWCP also authorized bilateral carpal tunnel releases.
2

By decision dated June 19, 2017, OWCP reduced appellant’s wage-loss compensation 

effective June 25, 2017 finding that she had the capacity to earn wages of $360.40 per week as a 

receptionist.3 Appellant timely requested a review of the written record by an OWCP hearing 

representative.

By decision dated November 17, 2017, OWCP’s hearing representative affirmed the 

June 19, 2017 decision. She found that OWCP had properly reduced appellant’s wage-loss 

compensation as the positon of receptionist was medically and vocationally suitable. The hearing 

representative further found that OWCP had properly determined her loss of wage-earning 

capacity based on her date-of-injury pay rate and the entry level salary for the selected positon of 

receptionist. 

On February 23, 2018 appellant requested reconsideration of the hearing representative’s 

November 17, 2017 decision. She submitted a November 1, 2017 decision from the Social 

Security Administration (SSA) finding her disabled as of June 3, 2010. In her request for 

reconsideration, appellant noted that the included decision was based upon new evidence regarding 

her “employability.” Appellant subsequently submitted an SSA disability determination and 

transmittal form (SSA-831) 

By decision dated July 23, 2018, OWCP reviewed appellant’s request for reconsideration 

pursuant to 5 U.S.C. § 8128 and 20 C.F.R. § 10.609, and denied modification of the hearing 

representative’s November 17, 2017 decision, which affirmed the original June 19, 2017 LWEC

determination. 

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

decision.

4

Modification of an LWEC 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.5 The burden of 

proof is on the party seeking modification of the wage-earning capacity determination.6 Unlike 

reconsideration pursuant to 5 U.S.C. § 8128(a), there is no time limitation for requesting 

 

3 OWCP initially issued a loss of wage-earning capacity (LWEC) determination on October 15, 2015 finding 

appellant capable of earning $448.50 per week as a receptionist. By decision dated March 18, 2016, a representative 

of OWCP’s Branch of Hearings and Review found that the selected position of receptionist was medically and 

vocationally suitable. However, the hearing representative set aside the October 15, 2015 decision and remanded the 

case to OWCP to determine the appropriate weekly wage for a receptionist. OWCP issued a June 9, 2016 LWEC 

determination finding that appellant was capable of earning $360.40 per week as a receptionist. That decision was 

similarly set aside by an OWCP hearing representative because OWCP relied on an incorrect pay rate in determining 

appellant’s loss of wage-earning capacity. Following remand, OWCP issued a proposed LWEC determination on 

April 24, 2017, followed by the June 19, 2017 final LWEC determination.

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

5 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).

6 20 C.F.R. § 10.511.
3

modification of an LWEC determination.7 Any request for “modification” (especially those 

without an accompanying claim for compensation) should be reviewed carefully to determine 

whether the claimant is seeking a reconsideration of a recently issued LWEC decision, as opposed 

to a modification of the LWEC determination.8

It is well established that a claimant may establish that a modification of an LWEC

determination is warranted if there has been a material change in the nature and extent of an injuryrelated condition, or a showing that the original determination was, in fact, erroneous.9

 Although 

appellant used the term reconsideration in her February 23, 2018 correspondence, she questioned 

OWCP’s finding about her employability given SSA’s recent disability determination.

The Board finds that the February 23, 2018 letter from appellant constituted a request for 

modification of the June 19, 2017 LWEC determination.10 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 the 

LWEC determination is warranted.11 The Board finds that the issue is whether a modification of 

the June 19, 2017 LWEC determination was warranted and thus the case must be remanded for an 

appropriate decision on this issue.12

 

7 W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

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

2.1501.4a (June 2013).

9 20 C.F.R. § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).

10 R.Z., Order Remanding Case, Docket No. 17-1455 (issued February 15, 2019). 

11 L.P., Order Remanding Case, Docket No. 18-1429 (issued March 8, 2019); W.R., Docket No. 16-0098 (issued 

May 26, 2016).

12 T.H., Order Remanding Case, Docket No. 16-1659 (issued July 14, 2017).
4

IT IS HEREBY ORDERED THAT the July 23, 2018 decision of the Office of Workers’

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

this order of the Board.

Issued: June 20, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board