United States Department of Labor

Employees’ Compensation Appeals Board

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C.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Harrison, OH, Employer

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Docket No. 19-1114

Issued: April 30, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

On April 13, 2019 appellant filed a timely appeal from an October 16, 2018 decision of the 

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

assigned Docket No. 19-1114.2

On February 25, 2011 appellant, then a 59-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her right hand and upper arm on October 14, 

2010 when she fell while in the performance of duty. OWCP accepted the claim for aggravation 

 

1 Under the Board’s Rules of Procedure, an appealmust be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from October 16, 2018, the date of OWCP’s last decision was 

April 14, 2019. As this fell on a Sunday, appellant had until Monday, April15, 2019 to file the appeal. Since using 

April 16, 2019, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of 

appealrights, the date of the postmarkis considered the date of filing. The date of the U.S. Postal Service postmark

is April 13, 2019, rendering the appealtimely filed. See 20 C.F.R. § 501.3(f)(1).

2 The Board notes that following the October 16, 2018 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

of preexisting right shoulder osteoarthritis and arthropathy, aggravation right shoulder 

impingement syndrome; right carpal tunnel syndrome; and right middle and ring finger flexor 

tenosynovitis. Appellant received wage-loss compensation on the periodic rolls as of June 5, 2011. 

On June 13, 2011 she underwent an OWCP authorized right rotator cuff and sub-acromial 

decompression surgery. 

On April 14, 2014 OWCP found a conflict in medical opinion between the second opinion 

examiner, Dr. Edward G. Fisher, a Board-certified orthopedic surgeon and Dr. Robert L. Reed, a 

Board-certified general surgeon. In a March 1, 2014 report Dr. Fisher opined that appellant could 

work full time in both of the selected positions of medical records clerk, Dictionary of 

Occupational Titles (DOT) 245.362.010 and insurance clerk, DOT 214.362.023, two positions 

previously deemed appropriate by vocational rehabilitation. In December 3, 2012 and January 23, 

2013 reports Dr. Fisher opined that appellant was permanently disabled. To resolve the conflict 

OWCP properly referred a statement of accepted facts (SOAF), a list of medical questions, and 

the medical record to Dr. Richard T. Sheridan, a Board-certified orthopedic surgeon, for an 

impartial medical evaluation. The SOAF noted appellant’s nonemployment medical history 

included post-polio syndrome; multilevel degenerative disc disease from mid and lower cervical 

spine, and that appellant had accepted right shoulder conditions under a prior injury claim in 

OWCP file No. xxxxxx343. 

In a June 23, 2014 report, Dr. Sheridan noted that appellant used a right wrist brace, a cane,

and a walker when necessary. He opined that the only residuals that remained of appellant’s 

accepted conditions were restricted motion in the right shoulder for which no additional therapies 

or treatments were recommended. Dr. Sheridan found no additional current diagnosis that were 

caused, aggravated, accelerated and/or precipitated by the October 14, 2010 employment injury.

He opined that appellant could not return to her former duties as a rural carrier without physical 

restrictions because of her right-sided shoulder motion restriction. Dr. Sheridan reviewed the 

position Insurance Clerk and opined that she was capable as performing this position given her

right shoulder restrictions. He advised that both work and nonwork-related residuals were 

considered. In his June 23, 2014 work capacity evaluation (Form OWCP-5c) Dr. Sheridan opined 

that appellant had reached maximum medical improvement and that she was capable of full-time 

employment with no restrictions.

By decision dated July 20, 2015, OWCP issued a formal loss of wage-earning capacity 

(LWEC) determination based upon appellant’s ability to perform the selected position of insurance 

clerk, DOT 205.367.022. It found that the weight of the medical evidence was afforded to

Dr. Sheridan, in his capacity as an impartial medical examiner (IME), regarding appellant’s ability 

to perform the sedentary insurance clerk position. 

On August 17, 2015 appellant requested a hearing before an OWCP hearing representative. 

By decision dated June 22, 2016, a hearing representative affirmed the July 20, 2015 LWEC 

decision. On June 26, 2917 appellant requested reconsideration. By decision dated September 22, 

2017, OWCP denied modification of its June 22, 2016 LWEC decision.

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It noted that the medical evidence, which showed that her polio syndrome continued to worsen, was insufficient 

to modify her LWEC as it was not a work-related condition.
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On September 25, 2018 OWCP received appellant’s September 21, 2018 request for 

reconsideration. Appellant alleged several errors in the LWEC determination. She alleged that 

the SOAF provided to Dr. Sheridan, the IME, was inaccurate as it failed to provide a complete and 

accurate list of her preexisting conditions, including degenerative cervical disc disease with 

cervical lordosis, asthma, polio, lumbar disc degeneration, atrophy of the left leg, gait and walking 

disorder, ataxia and tremulous of the right arm, depression, and fatigue. Appellant also alleged 

error in the substance of Dr. Sheridan’s report and conflicting work evaluation, as he had not 

properly addressed her current limitations or discussed her ability to perform the selected position

in light of all of her preexisting conditions. 

By decision dated October 16, 2018, OWCP denied appellant’s request for reconsideration 

finding that it was untimely filed and failed to demonstrate clear evidence of error.

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 

modification of an LWEC determination.7 Requests for “modification” 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

The Board finds that appellant’s September 21, 2018 request for reconsideration was, in 

fact, a request for modification of the July 20, 2015 LWEC determination. Appellant specifically 

alleged error in the SOAF which Dr. Sheridan, the IME, relied upon, as well as in Dr. Sheridan’s 

June 23, 2014 report, upon which the LWEC determination was based. 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.9

As OWCP improperly reviewed the case under the standard for an untimely 

reconsideration request, the case must 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 

 

4 B.H., Docket No. 18-1515 (issued June20, 2019); 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.

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

8

Supra note 5, Federal (FECA) Procedure Manual, Chapter 2.1501.4a (June 2013). 

9

20 C.F.R. § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).
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of proof to establish modification of her LWEC determination.10 The Board consequently remands 

the case to OWCP for proper adjudication, to be followed by a de novo decision.

IT IS HEREBY ORDERED THAT the October 16, 2018 decision of the Office of 

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

consistent with this order of the Board.

Issued: April 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

10 See L.H., Docket No. 18-1787 (issued July 29, 2019); R.Z., Docket No. 17-1455 (issued February 15, 2019).