United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, MILWAUKEE 

MITCHELL INTERNATIONAL AIRPORT, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 20-0154

Issued: April 7, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On October 25, 2019 appellant filed a timely appeal from an August 8, 2019 nonmerit 

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

Boards assigned Docket No. 20-0154.

1

On March 11, 2003 appellant, then a 37-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that on March 1, 2003 she experienced right shoulder 

and neck pain while checking bags, weighing 50 to 100 pounds each, for 2 to 2.5 hours without a 

break, while in the performance of duty. OWCP accepted the claim under File No. xxxxxx562 for 

right rotator cuff syndrome, herniated disc at C3-4, C4-5, and C5-6, cervical spondylosis without 

myelopathy, and disc desiccation at C6-7. Appellant stopped work on September 8, 2003. She 

 

1 The Board notes that following the August 8, 2019 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

eventually returned to work with restrictions, stopping several times throughout the years. On

November 7, 2005 appellant underwent an OWCP authorized C5-6 discectomy and fusion. She 

was released to return to work on March 6, 2006. On October 29, 2008 appellant stopped work 

and underwent an OWCP-approved cervical surgery on October 30, 2008. She returned to parttime limited-duty work on March 6, 2009.2

The record reveals that, under OWCP File No. xxxxxx976, OWCP accepted appellant’s 

May 19, 2009 occupational disease claim (Form CA-2) for a right plantar fasciitis condition. On 

May 21, 2009 appellant returned to work full time in a limited-duty capacity. On May 28 and 

August 10, 2009 she accepted a limited-duty assignment as a full-time modified transportation 

security officer with restrictions.

3

 On December 10, 2009 appellant stopped work due to her 

accepted employment injury under OWCP File No. xxxxxx976.4 

By decision dated December 22, 2009, OWCP found that the modified transportation 

security position that appellant worked since August 10, 2009 fairly and reasonably represented 

her wage-earning capacity. It also found that there was no loss of wage-earning capacity (LWEC) 

as her actual earnings met or exceeded the current wages of the job she held when injured.5 On 

January 14, 2011 the employing establishment terminated appellant’s employment on the grounds 

she could not perform the essential duties of a transportation security officer.

In a letter to OWCP dated April 26, 2017, appellant related that she had been released back 

to work under OWCP File No. xxxxxx976 on June 10, 2010, but was not offered a limited-duty 

assignment. She filed Form CA-7 claims for wage-loss compensation for periods commencing 

April 17, 2017.

Appellant submitted multiple requests for modification of the December 22, 2009 LWEC 

determination. By decisions dated September 25 and December 29, 2017, April 12 and August 3, 

2018, and January 16 and April 19, 2019, OWCP denied modification of the December 22, 2009 

LWEC determination. 

Appellant continued to file Form CA-7 claims for wage-loss compensation. 

On April 30, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated May 17, 2019, OWCP denied appellant’s request for an oral hearing as 

she had previously requested reconsideration. After exercising discretion, it further denied the 

 

2 By decision dated April 15, 2009, OWCP granted appellant a schedule award for 15 percent permanent 

impairment of the right arm. 

3 Appellant also had restrictions from her May 19, 2009 injury.

4 OWCP paid appellant wage-loss compensation under OWCP File No. xxxxxx976 until April 17, 2017 when her 

wage-loss benefits were terminated. It has not administratively combined the current claim, File No. xxxxxx562, with 

File No. xxxxxx976.

5 On December 10, 2009 appellant stopped work. She was released to return to work on June 15, 2010 in a limitedduty capacity on a full-time basis, but the employing establishment was unable to accommodate the restrictions.
3

request, finding that the issue could be equally-well addressed through a request for 

reconsideration.

Appellant continued to file Form CA-7 claims for wage-loss compensation. 

On May 30, 2019 appellant requested reconsideration. In her May 30, 2019 letter, she

again argued that OWCP’s December 22, 2009 LWEC determination was erroneous and should 

be modified as the modified transportation security officer position was temporary in nature. 

Appellant indicated that the employing establishment withdrew the August 10, 2009 limited-duty 

position, which caused the work cessation. She indicated that she was removed from employment

on January 21, 2011, after receiving permanent work restrictions from her treating physician. 

Appellant also indicated that on April 4, 2019 the employing establishment acknowledged that the 

limited-duty position was not a permanent position, but that it was temporary and subject to 

revision due to changes in work restrictions or employing establishment operational requirements. 

Thus, she contended that the limited-duty position was makeshift since it was designed to meet 

her own particular restrictions. In a June 17, 2019 letter, appellant also presented arguments 

pertaining to the submission of her Form CA-7 claims for compensation. She requested that 

OWCP enforce the employing establishment’s responsibility to follow the regulations and 

protocols.

Appellant also submitted medical documentation pertaining to on-going treatment of her 

accepted conditions. This included follow-up reports from Dr. Luciana Berceanu, a Boardcertified anesthesiologist, dated May 20 and June 17, 2019 with regards to appellant’s right sided 

neck/upper back, scapular/arm pain. The record also reflects that appellant underwent trigger point 

injections in the right trapezius on June 26 and July 10, 2019, performed by Dr. Berceanu. 

On July 18, 2019 OWCP sent a copy of appellant’s reconsideration request to the 

employing establishment for comments as the reconsideration request regarded the factual 

component of the LWEC determination. It afforded the employing establishment 20 days to 

respond. No response was received. 

By decision dated August 8, 2019, OWCP denied appellant’s request for reconsideration.

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

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.6 The burden of proof is on the 

party attempting to establish a modification of the LWEC determination.7

 

6 20 C.F.R. § 10.511; see C.H., Docket No. 19-1114 (issued April 30, 2020); A.S., Docket No. 18-0370 (issued 

March 5, 2019); Tamra McCauley, 51 ECAB 375 (2000); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).

7

Id.
4

The Board finds that appellant’s May 30, 2019 for reconsideration was, in fact, a request 

for modification of the December 22, 2009 LWEC determination. It is well established that a 

claimant may establish that a modification of an LWEC determination is warranted if there has 

been a showing that the original determination was, in fact, erroneous.8

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 is warranted.9

As OWCP improperly reviewed the case under the standard for a timely reconsideration

request, the case must therefore be remanded to OWCP for a proper decision which includes 

findings of fact and a clear and precise statement regarding whether appellant has met her burden 

of proof to establish modification of the December 22, 2009 LWEC determination.10 Furthermore,

appellant’s prior claim under OWCP File No. xxxxxx976 also involves an alleged injury to the left 

foot/ankle. OWCP’s procedures provide that cases should be administratively combined when 

correct adjudication depends on frequent cross-referencing between files and where two or more 

injuries occur to the same part of the body.11 Therefore, on remand, for a full and fair adjudication, 

OWCP shall administratively combine the present claim with File No. xxxxxx976 prior to 

adjudicating the issue of the LWEC modification. Following any further development as deemed 

necessary, OWCP shall issue a de novo decision.

 

8

Id. at § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).

9 See L.P., Docket No. 18-1429 (issued March 8, 2019).

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

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) 

(February 2000); R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., Docket No. 19-1490 (issued 

January 29, 2020).
5

IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: April 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board