United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.S., Appellant

and

U.S. POSTAL SERVICE, HIGHLAND 

STATION, Memphis, TN, Employer

__________________________________________

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Docket No. 21-1172

Issued: July 14, 2023

Appearances: Case Submitted on the Record

David N. Gillis, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 26, 2021 appellant, through counsel, filed a timely appeal from a June 14, 2021 

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 to consider the merits of the 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 his burden of proof to modify OWCP’s 

December 31, 2020 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On January 10, 2018 appellant, then a 51-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging on that date he sprained his leftshoulder when he grabbed a hand rail 

after slipping on a ramp while in the performance of duty. He stopped work on January 10, 2018. 

OWCP accepted appellant’s claim for left shoulder rotator cuff strain. On August 28, 2018 it 

expanded acceptance of the claim to include bicipital tendinitis, primary osteoarthritis, and 

effusion of the left shoulder. OWCP paid appellant wage-loss compensation on the supplemental 

rolls beginning June 30, 2018, and on the periodic rolls beginning August 19, 2018. 

On December 18, 2018 appellant underwent an OWCP-authorized left shoulder 

arthroscopy with biceps tenotomy, inferior labral partial tear debridement, subacromial 

decompression with acromioplasty, clavicle resection, and rotator cuff repair. Following his 

surgery, he returned to work on February 11, 2019 for four hours per day.

On August 16, 2019 Dr. Arsen Manugian, a Board-certified orthopedic surgeon, found that 

appellant had reached maximum medical improvement and could return to full-time work with 

permanent restrictions of lifting up to 50 pounds occasionally at waist level and no reaching, 

pulling, or pushing.

On September 6, 2019 appellant accepted a full-time modified position as an office 

assistant.3 The duties included answering telephones, taking messages, assisting with customer 

complaints, and tracking packages. The physical requirements were simple grasping for 2 to 6

hours a day, and lifting no more than 50 pounds at waist level for 2 to 6 hours a day. The salary 

was $65,037.00 per year.

On December 17, 2020 appellant advised OWCP that, approximately two months after the 

September 6, 2019 job offer, the employing establishment offered him a 204B position as a 

rotating supervisor with an increase in pay. He indicated that he began the new position in 

December 2019.4

By decision dated December 31, 2020, OWCP issued a retroactive LWEC determination

finding that appellant’s full-time position as an office assistant beginning September 6, 2019 fairly 

and reasonably represented his wage-earning capacity with no loss of earnings. It found that his 

current wages met or exceeded those of his date-of-injury position.

3 An August 30, 2019 job offer for the position of office assistant, also accepted by appellant, provided the duties 

as simple grasping for four hours per day, and lifting not more than 35 pounds for two hours per day no higher than 

waist level. This offer was apparently superseded by the job offer of September 3, 2019.

4 As appellant accepted the office assistant position on September 6, 2019,December 2019 was more than 60 days 

after his return to work.
3

On May 12, 2021 appellant, through counsel, requested reconsideration. Counsel 

contended that appellant could not meet the physical requirements of the office assistant position

on which the December 31, 2020 LWEC determination was based. He noted that the position 

required appellant to lift 50 pounds for up to six hours a day. Counsel provided a Department of 

Labor chart defining the physical demand characteristics of work and specifying that occasional 

activity occurred between 0 to 33 percent of the workday, or up to 2.64 hours of an 8-hour 

workday, frequent activity occurred for 34 to 66 percent of the workday, or up to 5.28 hours of the 

workday, and constant activity occurred for 67 to 100 percent of the workday, or at least 5.36 hours 

a day. Counsel contended that, as the physical requirements of more than occasional lifting of 50 

pounds exceeded appellant’s work restrictions, the position could not properly form the basis of 

an LWEC determination.

By decision dated June 14, 2021, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT

Section 8115(a) of FECA provides that, in determining compensation for partial disability, 

the wage-earning capacity of an employee is determined by the employee’s actual earnings if the 

actual earnings fairly and reasonably represent the employee’s wage-earning capacity.5 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.6 

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. The position must conform 

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

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.7

OWCP’s procedures provide that, in cases where reemployment is within the Federal 

Government, a formal actual earnings LWEC should include an “indication that the physical 

requirements of the alternative work do not exceed the work limitations.”

8

 

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.9 Wage-earning capacity may not be based on an odd-lot or make-shift position 

5

5 U.S.C. § 8115(a); V.H., Docket No. 20-1012 (issued August10, 2021); Loni J. Cleveland, 52 ECAB 171 (2000).

6

See D.A., Docket No. 21-0267 (issued November 19, 2021); M.J., Docket No. 21-0036 (issued August23, 2021); 

K.B., Docket No. 20-0358 (issued December 10, 2020); Lottie M. Williams, 56 ECAB 302 (2005).

7

20 C.F.R. § 10.510; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity 

Based on Actual Wages, Chapter 2.815.5c (June 2013).

8

Id. at Chapter 2.815.6d(5) (June 2013).

9

Id.
4

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 whe re year-round 

employment is available.10

If the injured employee is no longer working in the alternative position upon which an 

LWEC rating is being considered, OWCP may consider a retroactive LWEC.11 However, this is 

rare and should only be made where the employee worked in the position for at least 60 days, the 

employment fairly and reasonably represented his or her wage-earning capacity as outlined under 

FECA Chapter 2.815.5, and the subsequent work stoppage or change in the alternative position(s) 

did not occur because of any change in the employee’s injury-related condition affecting his or her 

ability to work.12

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.13 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 

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

formal [LWEC].”

14

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

wage-earning capacity determination.15

ANALYSIS

The Board finds that appellant has met his burden of proof to modify OWCP’s 

December 31, 2020 LWEC determination.

As OWCP issued a formal LWEC determination, the decision will remain in place unless 

there is a material change in the nature and extent of the injury-related position, the employee has 

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

id. at Chapter 2.815.5c (June 2013).

11 M.F., Docket No. 18-0323 (issued June 25, 2019); D.M., Docket No. 16-1527 (issued July 25, 2017); D.P., 

Docket No. 14-0301 (issued July 16, 2014); id. at Chapter 2.815.7.

12 Id.

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

45 ECAB 211 (1993).

14 Supranote 7 atChapter 2.1501.3a (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).

15 O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).
5

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

erroneous.16

The Board finds that appellant has established that the original determination was in error. 

On September 6, 2019 appellant accepted a modified job offer from the employing establishment 

for a position as an office assistant. The physical requirements included lifting of 50 pounds at

waist level for two to six hours a day.

In his August 16, 2019 report, Dr. Manugian, found that appellant could return to full-time 

work with restrictions of occasional 50-pound waist-level lifting. Counsel submitted evidence that 

lifting up to 50 pounds for 6 hours per day, as required by the offered position, constituted constant

lifting, defined as 67 to 100 percent of the workday, rather than occasional lifting, defined as 0 to 

33 percent of the workday or up to 2.64 hours of an 8-hour workday. Consequently, the office 

assistant position offered on September 3, 2019 did not comport with appellant’s medical 

restrictions as established by Dr. Manugian.

Appellant has provided evidence that the modified position did not conform to his 

established physical limitations as determined by Dr. Manugian. As noted, OWCP’s regulations 

and procedures provide that a LWEC determination based on actual earnings must conform to the 

physical limitations of the injured employee.17 Therefore, the original LWEC determination was 

in error and appellant has met his burden of proof to modify OWCP’s December 31, 2020 LWEC 

determination.18

CONCLUSION

The Board finds that appellant has met his burden of proof to modify OWCP’s 

December 31, 2020 LWEC determination.

16 B.H., Docket No. 21-0892 (issued November 29, 2021); J.A., Docket No. 17-0236 (issued July 17, 2018); SueA. 

Sedgwick, 45 ECAB 211 (1993).

17 See supra notes7 and 8; see also C.M., Docket No. 22-0205 (issued August 17, 2022); E.F., Docket No. 19-1019 

(issued November 6, 2019); W.R., Docket No. 18-1782 (issued May 29, 2019).

18 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 14, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board