United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Orlando, FL, Employer 

__________________________________________ 

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Docket No. 16-1237 

Issued: May 3, 2017 

Appearances: Case Submitted on the Record

Ronald Webster, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On May 24, 2016 appellant, through counsel, filed a timely appeal from a March 21, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2 (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 properly denied modification of its January 14, 2015 

decision. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

In a claim adjudicated by OWCP under File No. xxxxxx661, OWCP accepted that 

appellant, then a 42-year-old customs and border protection officer, sustained injuries in a motor 

vehicle accident on February 27, 1990. The accepted injuries were: closed fracture of left rib(s); 

contusion of left shoulder and upper arm; closed fracture of right carpal bone; closed fractures of 

bilateral tibia and fibula; fractures of phalanges of left third and fourth toes of foot; and tear of 

medial meniscus of the right knee. Appellant returned to work following this injury. 

In a claim adjudicated under File No. xxxxxx318, OWCP accepted that on July 24, 2007 

appellant sprained his right ankle and the medial collateral ligament of his right knee when he 

fell down stairs. It later expanded File No. xxxxxx318 to include aggravation of degenerative 

arthritis of the right knee. Appellant subsequently returned to work for intermittent periods until 

he underwent a total arthroplasty of the right knee on October 31, 2008. He was placed on the 

periodic compensation roll in December 2008.3

In June 2009, appellant was referred for vocational rehabilitation. Based on labor market 

analysis prepared by the vocational rehabilitation specialist, by letter dated January 6, 2010, 

OWCP proposed to reduce appellant’s entitlement to monetary compensation due to his ability to 

earn wages as a telecommunication dispatcher. By decision dated February 19, 2010, OWCP 

reduced appellant’s compensation based on his ability to earn wages in the constructed position 

of telecommunication dispatcher.4

OWCP granted appellant a schedule award for 10 percent permanent impairment of the 

right upper extremity on June 15, 2010. On June 24, 2010 it granted him a schedule award for 

40 percent permanent impairment of the right lower extremity. On January 18, 2011 a hearing 

representative of OWCP’s Branch of Hearings and Review affirmed the June 15, 2010 schedule 

award determination. 

In a July 15, 2011 decision, OWCP denied appellant’s claim to expand File No. 

xxxxxx661 to include back and gait conditions. Appellant requested an oral hearing. On 

February 2, 2012 an OWCP hearing representative vacated the July 15, 2011 decision and 

remanded the case for further medical development. Following further development, on 

August 9, 2012 OWCP additionally accepted abnormality of gait under File No. xxxxxx661. 

On August 29, 2011 appellant also filed a claim for compensation (Form CA-7) for the 

period April 18, 2011 to August 29, 2011. By decision dated October 31, 2011, OWCP denied 

that appellant sustained a recurrence of disability commencing April 18, 2011. Appellant 

requested an oral argument. On May 25, 2012 an OWCP hearing representative set aside the 

October 31, 2011 decision and remanded the case to OWCP for further development of the 

medical evidence. 

 3

 On January 29, 2010 OWCP administratively combined File Nos. xxxxxx661 and xxxxxx318, with the former 

serving as the master file. 

4

 The record at that time indicated that appellant had applied for Office of Personnel Management (OPM) 

retirement benefits and was receiving 30 percent disability from the Department of Veterans Affairs (VA). In 

OWCP EN1032 forms signed by appellant on September 12, 2010 and September 7, 2011, he affirmed that he was 

receiving both OPM and VA benefits. 
3

In a de novo merit decision dated November 7, 2012, OWCP again denied that appellant 

sustained a recurrence of disability on April 18, 2011. The November 7, 2012 decision was 

affirmed by an OWCP hearing representative on May 30, 2013. 

Appellant, through counsel, requested reconsideration on April 24 and 

December 15, 2014. In merit decisions dated July 23, 2014 and January 14, 2015, OWCP denied 

modification of the prior decisions, finding that appellant failed to establish a recurrence of 

disability commencing April 18, 2011. 

Appellant, through counsel, again requested reconsideration on May 26, 2015. In a merit 

decision dated March 21, 2016, OWCP denied modification of its prior decision. 

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 and it 

remains undisturbed until properly modified.5

 OWCP procedures provide, “If a formal loss of 

wage-earning capacity (LWEC) decision has been issued, and the claim is for recurrent 

disability, it should be processed in accordance with procedures for modifying a formal 

LWEC.”6 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. The burden of proof is on the 

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

ANALYSIS 

The Board finds that this case is not in posture for decision. In its March 21, 2016 

decision, OWCP applied the standard for a timely request for reconsideration rather than the 

standard for modifying an LWEC decision. 

In its March 21, 2016 decision, before the Board in this appeal, OWCP noted that in both 

its July 23, 2014 and January 14, 2015 decisions it had found the medical evidence insufficient to 

establish that appellant incurred a clinically-observable material worsening of the accepted 

conditions to establish a recurrence of disability. The March 21, 2016 decision concluded that 

the evidence presented was not of sufficient probative value to alter the January 14, 2015 

decision. The proper issue in this case is whether the February 19, 2010 LWEC determination 

should be modified. 

The Board has held that, when an LWEC determination has been issued and a claimant 

submits evidence alleged to show disability for work, OWCP must evaluate the evidence to 

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

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013). 

7 Sue A. Sedgwick, 45 ECAB 211 (1993). 
4

determine if modification of wage-earning capacity is warranted.8

 As noted above, OWCP’s 

procedures direct the claims examiner to consider the criteria for modification when a claimant 

alleges recurrent disability.9

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

standard of review for requests for recurrence of disability after a wage-earning capacity decision 

has issued, to be followed by an appropriate merit decision to preserve appellant’s appeal 

rights.10

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the March 21, 2016 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: May 3, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 8 K.R., Docket No. 09-28 (issued September 16, 2009). 

9 Supra note 6. 

10 R.L., Docket No. 16-72 (issued February 11, 2016).