United States Department of Labor

Employees’ Compensation Appeals Board

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M.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baltimore, MD, Employer

__________________________________________

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Docket No. 21-0036

Issued: August 23, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 9, 2020 appellant filed a timely appeal from a September 10, 2020 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.

ISSUE

The issue is whether appellant has met her burden of proof to modify a January 13, 1995 

loss of wage-earning capacity (LWEC) determination.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are 

as follows.

On May 1, 1992 appellant, then a 32-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained a bilateral knee injury causally related to factors of 

her federal employment. She noted that she first became aware of the condition on April 20, 1989 

and of its relationship to her federal employment on April 6, 1992. OWCP initially accepted the 

claim for bilateral genu varum, and later accepted bilateral chondromalacia patellae, and bilateral 

unspecified internal derangement of the knees. Appellant underwent bilateral knee arthroscopies 

on July 8, 1992 and left knee surgery on April 28, 1993.

On October 29, 1993 appellant accepted a position as a modified T6 letter carrier with the 

employing establishment, effective October 30, 1993. The duties of the position included filing, 

casing, and distribution of mail within physical restrictions. The position’s work restrictions were 

based on those set forth by Dr. Claudia Thomas Carty, a Board-certified orthopedic surgeon, in a 

work restriction evaluation (Form OWCP-5) dated August 13, 1993.3

By decision dated January 13, 1995, OWCP determined that appellant’s position as a 

modified letter carrier at the employing establishment fairly and reasonably represented her wageearning capacity with zero LWEC.

On April 13, 1995 OWCP accepted appellant’s claim for a March 6, 1995 recurrence of 

disability. It paid intermittent wage-loss compensation from March 6 to June 9, 1995. Appellant 

underwent a right knee lateral release and an abrasion arthroplasty on September 18, 1995. OWCP 

again paid her wage-loss compensation from September 18 to 29, 1995 following her right knee 

procedure. By decision dated August 14, 2000, it granted appellant a schedule award for 30 

percent permanent impairment of the right lower extremity, and 20 percent permanent impairment 

of the left lower extremity. The period of the award ran from December 28, 1998 to September 30, 

2001, a total of 144 weeks.

In correspondence dated January 8, 2007, appellant informed OWCP that her knee 

conditions had been stable since her resignation from the employing establishment in 

October 1998; however, she had recently developed recurrent severe knee pain and problems.

By letter dated June 22, 2016, appellant requested information regarding the status of her 

claim. In a development letter dated July 21, 2016, OWCP advised that her claim had been closed 

and sent to the Federal Records Center due to inactivity as no medical documentation or bills had 

been received since June 1, 2001. OWCP noted the deficiencies in her claim for a recurrence of 

 

2 Order Remanding Case, Docket No. 18-1081 (issued May 22, 2020).

3 The work restrictions included two hours of walking and standing per day, one hour of lifting and bending, no 

squatting, climbing, kneeling, lifting, pushing/pulling over 20 pounds, or use of a vehicle.
3

disability and need for medical treatment and informed her of the type of evidence necessary to 

establish the claim. No further action was taken on the recurrence claim at that time. 

On January 25, 2017 appellant submitted a notice of recurrence (Form CA-2a) claiming 

disability due to her accepted knee conditions and a need for medical treatment. An additional 

copy of the claim form was submitted on June 25, 2017. Appellant indicated that her recurrence

began on January 26, 2007. She also submitted an itemization of her medical treatment for her 

knees since 2007, a history of her employment since leaving the employing establishment, and 

physical evidence.

An x-ray of appellant’s right knee obtained on January 23, 2007 demonstrated 

osteoarthritic changes. An x-ray of the right knee obtained on April 17, 2008 demonstrated 

moderate arthrosis of the knees. An x-ray of the right knee obtained on February 10, 2009 

demonstrated no acute findings and extensive degeneration of the medial compartment with joint 

space narrowing. An x-ray of the left knee obtained on the same date demonstrated 

tricompartmental osteoarthritic changes, most prominent in the medial compartment though less 

severe than in the right knee.

Operative notes dated April 22, 2009 indicate that appellant underwent a right knee 

meniscectomy and right knee medial femoral condyle chondroplasty and medial proximal tibia 

chondroplasty on that day. Operative notes dated May 22, 2009 indicate that appellant underwent 

a left knee medial meniscectomy and left knee chondroplasty.

In a letter dated May 2, 2017, appellant related that she was concerned regarding OWCP’s 

statement that she had not submitted documentation to her claim since June 1, 2001. She again 

related that after she left her position at the employing establishment, she had minimal issues with 

her knees other than expected degeneration until she resumed employment in 2006, she related her 

treatment through the years and noted that she had undergone bilateral knee replacements in 2012.

On September 24, 2017 appellant submitted a list of her medical treatment during the 

period January 26, 2007 through February 5, 2014.

By decision dated November 1, 2017, OWCP denied appellant’s claim for a recurrence of 

disability. It found the medical evidence of record was insufficient to establish a change or 

worsening of her accepted conditions, without an intervening cause, to the point that she could no 

longer work. OWCP noted that this decision did not affect her entitlement to medical benefits for 

her accepted work-related conditions.

On April 13, 2018 appellant timely filed an appeal with the Board. By order dated May 22, 

2020, the Board set aside the November 1, 2017 decision and remanded the case for further 

proceedings. The Board found that OWCP had adjudicated appellant’s recurrence claim without 

proper consideration of the LWEC determination as a result of appellant’s submission of evidence 

with respect to disability and worsening of the accepted conditions.

On remand, OWCP sent a letter to appellant dated July 31, 2020 advising her that she had 

not submitted sufficient evidence to support modification of the January 13, 1995 formal LWEC 

determination. It advised her of the three criteria necessary for modifying such decisions, i.e., that 

there was a material change in the nature and extent of the injury-related condition, the employee 
4

had been retrained or otherwise vocationally rehabilitated, or the original determination was, in 

fact, erroneous. It afforded her 30 days to provide evidence substantiating that she had met any of 

the criteria.

By letter dated August 27, 2020, appellant requested additional time to prepare an adequate 

response and indicated that she would be out of town for approximately a week.

By decision dated September 10, 2020, OWCP denied appellant’s request for modification 

of its January 13, 1995 LWEC determination. It found that she had not provided evidence 

substantiating that she had met any of the three criteria for modifying the LWEC determination. 

LEGAL PRECEDENT

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

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

wages.4 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.5 A determination regarding 

whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be 

made only after an employee has worked in a given position for at least 60 days.6 Wage-earning 

capacity may not be based on an odd-lot or make-shift position designed for an employee’s 

particular needs, a temporary position when the position held at the time of injury was permanent, 

or a position that is seasonal in an area where year-round employment is available.7

Compensation payments are based on the wage-earning capacity determination, and it 

remains undisturbed until properly modified.8

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.9 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 

 

4 5 U.S.C. § 8115(a); see O.S., Docket No. 19-1149 (issued February 21, 2020); Mary Jo Colvert, 45 ECAB 575 

(1994); Keith Hanselman, 42 ECAB 680 (1991).

5 See M.G., Docket No. 19-1659 (issued August 18, 2020); J.A., Docket No. 18-1586 (issued April 9, 2019).

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Wages, Chapter 2.815.5 (June 2013).

7 See M.S., Docket No. 19-0692 (issued November 18, 2019); James D. Champlain, 44 ECAB 438, 440-41 (1993); 

Federal (FECA) Procedure Manual, id. at Chapter 2.815.5c (June 2013).

8 See M.F., Docket No. 18-0323 (issued June 25, 2019).

9

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

45 ECAB 211 (1993).
5

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

formal [LWEC].”

10

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

wage-earning capacity determination.11

ANALYSIS

The Board finds that appellant has not met her burden of proof to modify a January 13, 

1995 LWEC determination.

With respect to the first basis for modifying an LWEC determination, appellant has not 

demonstrated that the January 13, 1995 LWEC determination was erroneous.12 On October 30, 

1993 she returned to work for the employing establishment as a modified letter carrier. The 

position was within the work restrictions recommended by Dr. Carty. It was not an odd-lot or 

make-shift position, and it was not an invalid temporary or seasonal position. Appellant worked 

in the position for more than 60 days prior to the issuance of the January 13, 1995 LWEC 

determination.13 Therefore, appellant has not presented evidence showing that the January 13, 

1995 LWEC determination was erroneous when issued.

Further, the Board notes that appellant has alleged that her accepted condition had 

worsened such that she became totally disabled from all work as a result of the accepted 

employment conditions commencing January 26, 2007. Since OWCP found that appellant could 

perform the duties of a modified letter carrier, the issue is whether there has been a material change 

in her work-related condition that would render her unable to perform those prescribed duties.14 

This is primarily a medical question.15 In reviewing the medical evidence of record, the Board 

finds that appellant has failed to provide sufficient medical evidence to establish that a 

modification of the January 13, 1995 LWEC determination is warranted due to of a worsening of 

her work-related condition, which disabled her from work in the modified position.

16

Appellant has not submitted a rationalized opinion from a physician indicating that her 

accepted work-related condition had worsened such that she became unable to perform the 

modified position as a result of the accepted employment conditions commencing 

January 26, 2007. Appellant’s own statements on the matter are not medical evidence from a 

qualified physician and are thus of no probative value in establishing that modification of the 

 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.812.9(a) 

(June 2013); D.T., Docket No. 18-0174 (issued August 23, 2019); J.B., Docket No. 17-0817 (issued April 26, 2018); 

Harley Sims, Jr., 56 ECAB 320 (2005).

11 O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

12 See supra note 9.

13 See supra notes 6 and 7.

14 D.Q., Docket No. 17-1220 (issued May 18, 2018); Phillip S. Deering, 47 ECAB 692 (1996).

15 R.S., Docket No. 15-1229 (issued October 2, 2015).

16 See R.L., Docket No. 15-1337 (issued January 27, 2016).
6

January 13, 1995 LWEC determination is warranted on this basis.17 Appellant submitted 

diagnostic reports dated from January 23, 2007 through February 10, 2009. These reports do not 

address whether there had been a material change in her work-related condition that rendered her 

unable to perform her prescribed duties as a modified letter carrier. As such, they are of no 

probative value in establishing that a modification of the January 13, 1995 LWEC determination 

is warranted.18 Similarly, the operative reports of April 22 and May 22, 2009 do not address such 

a material change, and do not establish that modification of the LWEC determination is 

warranted.19 This evidence is therefore insufficient to establish appellant’s claim. 

The Board further notes that appellant has not alleged, as a basis for modification of the 

January 13, 1995 LWEC determination that she had been retrained or otherwise vocationally 

rehabilitated.20

Thus, the Board finds that appellant has not met her burden of proof to modify the 

January 13, 1995 LWEC determination.

Appellant may request modification of an 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 January 13, 

1995 LWEC determination.

 

17 See R.S., supra note 15.

18 Id.; see also D.T., Docket No. 18-0174 (issued August 23, 2019).

19 Id.

20 See supra note 9.
7

ORDER

IT IS HEREBY ORDERED THAT the September 10, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 23, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board