United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Philadelphia, PA, Employer

__________________________________________

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Docket No. 18-1782

Issued: May 29, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 25, 2018 appellant, through counsel, filed a timely appeal from a May 3, 

2018 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.

 

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

ISSUE

The issue is whether appellant has met her burden of proof to modify an August 1, 2011 

loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On December 18, 2006 appellant, then a 50-year-old practical nurse, filed an occupational 

disease claim (Form CA-2) alleging that on December 14, 2006 she first realized that her neck and 

back pain were due to duties relative to patient care while in the performance of duty.4 She filed 

a second Form CA-2 on that same date alleging that she first realized that her bilateral carpal tunnel 

syndrome and right shoulder pinched nerve were caused or aggravated by her employment duties.5 

OWCP accepted appellant’s claims for right neck sprain; right shoulder, upper arm, and rotator 

cuff sprain; right shoulder calcifying tendinitis; right shoulder impingement syndrome; and right 

median neuropathy. Appellant received intermittent wage-loss compensation on the supplemental 

rolls commencing December 16, 2006. Subsequently, OWCP accepted a recurrence of disability 

commencing May 18, 2010. 

On March 2, 2011 the employing establishment offered appellant an accommodated 

licensed practical nurse position. The job offer noted the work schedule, salary, and referred to an 

attachment for the job description and physical requirements. The attachment accompanying the 

job offer was a performance plan and a list of the performance elements/standards for the position. 

Appellant accepted the job offer on March 9, 2011. 

By decision dated August 1, 2011, OWCP issued an LWEC determination in which it 

found that appellant’s actual earnings in her accommodated licensed practical nurse position met 

or exceeded the current wages of the job she held when injured and therefore her wage-loss 

compensation payments were terminated. 

On October 24, 2011 appellant filed a Form CA-2 alleging that on October 6, 2011 she 

first realized that her cervical sprain with right-sided radiculopathy, right medial neuropathy, and 

right rotator cuff tear had been aggravated by her duties in the accommodated position she had 

performed since March 9, 2011.6 

 

3 Docket No. 16-0098 (issued May 26, 2016), Order Remanding Case, Docket No. 14-0084 (issued July 10, 2014). 

4 This claim was assigned OWCP File No. xxxxxx093. 

5 This claim was assigned OWCP File No. xxxxxx067. On April 15, 2010 OWCP combined OWCP File 

Nos. 00000067 and xxxxxx093, with xxxxxx067 as the master file number. 

6 This claim was assigned OWCP File No. xxxxxx523. On October 24, 2011 OWCP combined OWCP File 

Nos. xxxxxx093, xxxxxx523, and xxxxxx067, with OWCP File No. xxxxxx093 as the master file number. 
3

In a statement dated November 6, 2011, appellant related that on June 8, 2011 she was 

removed from the accommodated position and assigned to a job requiring observing patients who 

were a threat to themselves or at risk to themselves. On September 28, 2011 she was reassigned 

to a position sorting mail. 

In an October 6, 2011 report, Dr. Scott M. Fried, a Board-certified osteopathic orthopedic 

surgeon, noted that appellant reported increased symptoms and that she was having difficulty with 

her current physical job duties which required prolonged neck and head flexion. He was also 

concerned that the activity of pushing and pulling a cart aggravated her injuries. Dr. Fried reported 

that appellant could perform brief and limited computer work in an ergonomic environment. He 

also opined that she should avoid repetitive activities and prolonged positioning. Dr. Fried 

determined that appellant was unable to work due her flare-up of her symptoms and difficulty with 

her current job activities. He recommended functional capacity testing to determine her current 

limitations and capabilities. 

A functional capacity evaluation (FCE) report dated October 28, 2011 detailed appellant’s 

work capability. The report noted that she became symptomatic on her right side when performing 

repetitive and heavy lifting tasks. Restrictions included: occasional light fine manipulation and 

firm grasping; no repetitive work; avoid frequent firm grasping, fine manipulation, and repetitive 

tasks; and under 10 pounds of lifting or carrying. Under physical demands, the report found that 

appellant was capable of up to six hours of sitting; occasional static position; rotational 

movements; flexing movements; bending/stooping, squatting, crawling, climbing stairs, reaching 

above left shoulder level, kneeling, and balance; no repetitive fine manipulation; occasional fine 

manipulation; no climbing a ladder or reaching above the right shoulder; and frequent extension 

movements. Lifting and carrying restrictions of up to 10 to 24 pounds were also provided for the 

left and right hand. The report concluded that appellant was capable of performing sedentary work 

requiring up to 10 pounds of carrying and/or lifting items and occasional walking/standing. 

In an April 22, 2013 report, Dr. Fried provided physical examination findings and detailed 

appellant’s injury and treatment history from October 28, 2009, the date he first treated her. He

reported that she returned to work on March 9, 2011 and on June 20, 2011 she noted an aggravation 

of her symptoms. Physical examination findings were markedly positive and it was noted that any 

increase in activities caused a flare-up in appellant’s symptoms. On October 6, 2011 appellant

reported a significant flare up of her symptoms involving her arm, right neck, and plexus. At the 

time of the flare-up she was in a new modified job which required a frequent writing, prolonged 

sitting, and pulling a cart with a laptop, which Dr. Fried opined aggravated her symptoms. 

According to Dr. Fried appellant’s condition continued to be markedly positive and she 

continued to have symptom flare ups with any increased activity. He reviewed her statement, 

noted that she requested voice-activated software as an accommodation several times, and noted 

the different jobs and duties assigned to her. Dr. Fried reported that on September 20, 2011 

appellant’s duties included filing paid invoices and processing mail which involved bending and 

“prolonged postured of the head and neck.” He also opined that her repetitive computer activity 

aggravated her condition. Dr. Fried reported that appellant has accepted employment injuries of 

right median neuropathy, carpal tunnel, cervical radiculopathy, and right rotator cuff strain and 

sprain, which were aggravated by her computer work, the lack of voice-activated software to limit 

writing and keying activities, and nonergonomic seating. He also opined that the work duties she
4

was performing in her modified position were outside the restrictions noted in the October 2011 

FCE. 

In an April 25, 2013 addendum, Dr. Fried opined that as of October 6, 2011 appellant was 

totally disabled from work due to the work injuries outlined in his prior April 22, 2013 report. He 

further noted that the October 2011 FCE testing supported that her disability was due to her 

employment injuries and she was unable to perform her modified job duties. 

By decision dated October 24, 2014, following the combining of the claim files, OWCP 

had found that the evidence from the combined claim files was insufficient to establish a new 

occupational disease or that appellant’s employment duties had aggravated her accepted 

conditions. Appellant, through counsel, requested an oral hearing on March 27, 2015. By decision 

dated May 22, 2015, a hearing representative affirmed the denial of her claim finding that the 

medical reports of Dr. Fried were insufficient to establish that the accepted conditions had been 

aggravated by the job duties she performed during the period March 9 to October 6, 2011. 

Appellant appealed to the Board.

By decision dated May 26, 2016, the Board remanded the case to OWCP for a 

determination of whether appellant had established total disability due to an aggravation of her 

accepted conditions such that the August 1, 2011 LWEC should be modified. 

Following remand, by decision dated September 27, 2017, OWCP denied modification of 

the August 1, 2011 LWEC determination. 

On October 6, 2017 appellant, through counsel, requested an oral hearing before a 

representative of the OWCP Branch of Hearings and Review. A hearing was held on 

March 13, 2018. 

By decision dated May 3, 2018, OWCP’s hearing representative affirmed OWCP’s 

September 27, 2017 decision finding that the evidence of record did not substantiate a modification 

of the August 1, 2011 LWEC determination. 

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, represent a claimant’s ability to earn 

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

remains undisturbed until properly modified.7 

A light-duty position that fairly and reasonably represents an employee’s ability to earn 

wages may form the basis of an LWEC determination if that light-duty position is a classified 

position to which the injured employee has been formally reassigned.8 The position must conform 

to the established physical limitations of the injured employee; the employing establishment must 

 

7 See L.T., Docket No. 18-0797 (issued March 4, 2019); Katherine T. Kreger, 55 ECAB 633 (2004).

8 20 C.F.R. § 10.510.
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have a written position description outlining the duties and physical requirements; and the position 

must correlate to the type of appointment held by the injured employee at the time of injury.9 If 

these circumstances are present, a determination may be made that the position constitutes 

“regular” federal employment. In the absence of a “light-duty position” as described in this 

paragraph, OWCP will assume that the employee was instead engaged in noncompetitive, 

makeshift or odd lot employment which does not represent the employee’s wage-earning capacity, 

i.e., work of the type provided to injured employees who cannot otherwise be employed by the 

Federal Government or in any well-known branch of the general labor market.

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless it meets the requirements for modification.10 OWCP 

has by regulations defined when modification of a LWEC determination should occur.11 

“...Modification of such a determination is only warranted where the party seeking 

the modification establishes either that 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.”

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s May 22, 2015 decision because the Board 

considered that evidence in its May 26, 2016 decision. Findings made in prior Board decisions 

are res judicata absent any further review by OWCP under section 8128 of FECA.12

On March 9, 2011 appellant accepted a March 2, 2011 modified job offer from the 

employing establishment for a position as an accommodated licensed practical nurse. The job 

offer noted the work schedule, salary, and listed the performance elements/standards in an 

attachment. No physical restrictions were provided. In an August 1, 2011 LWEC determination,

OWCP found that the position fairly and reasonably represented appellant’s wage-earning capacity 

as she had been performing the position since March 9, 2011 and had demonstrated the ability to 

perform the duties of the modified job of accommodated licensed practical nurse for 60 days or 

more. 

An LWEC determination can be modified if it was issued in error.13 The Board finds that 

the current record does not establish that the March 2, 2011 job offer from the employing 

 

9

Id.

10 See C.C., Docket No. 18-1127 (issued January 29, 2019); Sue A. Sedwick, 45 ECAB 211 (1993). 

11 20 C.F.R. § 10.511. 

12 T.J., Docket No. 18-1477 (issued April 4, 2019). 

13 Supra note 11. 
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establishment complied with OWCP’s regulations regarding light-duty job offers. The physical 

requirements of the position were not described in the job offer or accompanying documents. 

Therefore, it is unclear from the record what the physical requirements of licensed practical nurse 

position were and whether the physical requirements of the position were within appellant’s 

medical restrictions. On remand OWCP should obtain relevant evidence including a written 

description of the job duties and physical restrictions of the modified position appellant performed 

as of March 9, 2011.14 

The Board finds that the record of evidence is incomplete and thus the case will accordingly 

be remanded to OWCP to properly resolve the issues presented. After such further development 

as is deemed necessary, OWCP should issue an appropriate decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’

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

this decision of the Board.

Issued: May 29, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

14 See A.J., Docket No. 10-0619 (issued June 29, 2010); 20 C.F.R. § 10.510.