United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rochester, NY, Employer

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Docket No. 21-1059

Issued: May 20, 2022

Appearances: Case Submitted on the Record

Coby Jones, for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On July 7, 2021 appellant filed a timely appeal from a May 20, 2021 nonmerit decision of 

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

assigned Docket No. 21-1059.

On January 24, 2000 appellant, then a 38-year-old letter carrier, filed a traumatic injury

claim (Form CA-1) alleging that he sustained an injury to his right shoulder, wrist, and hip when 

he slipped on an icy sidewalk and fell while in the performance of duty. OWCP accepted the claim 

for right shoulder strain and bursitis and authorized arthroscopic surgery which was performed on 

August 11, 2000 and November 21, 2002. It paid appropriate compensation benefits on the 

supplemental rolls commencing September 13, 2002. Appellant did not immediately stop work,

but returned to a light-duty position and on March 15, 2003 he returned to full-time light-duty 

work. 

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

On July 25, 2003 appellant filed a notice of recurrence (Form CA-2a), alleging that on 

June 11, 2003 he had worsening pain in the right shoulder and neck. By decision dated 

November 13, 2003, OWCP denied his claim for a recurrence of disability. On February 6, 2004

appellant requested reconsideration and submitted medical evidence. By decision dated March 29, 

2004, OWCP denied modification of the November 13, 2003 decision.

By decision dated August 10, 2004, OWCP found that appellant’s actual earnings as a fulltime light-duty carrier, effective March 11, 2003, fairly and reasonably represented his wageearning capacity. As the pay in that position was equivalent to the pay rate for the position 

appellant held at the time of his injury, no loss of wage-earning capacity (LWEC) occurred.2

In a letter dated March 26, 2005, appellant requested reconsideration of the decision dated 

March 29, 2004. The envelope containing the request was not retained in the record. Appellant 

asserted that he submitted sufficient evidence to support his claim for recurrence of disability on 

June 11, 2003. 

By decision dated July 6, 2005, OWCP denied appellant’s application for reconsideration 

on the grounds that the request was not timely filed and that he did not present clear evidence of 

error by OWCP. 

On August 2, 2005 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

By decision dated August 16, 2005, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing. It found that since he had previously requested 

reconsideration on the same issue he was not entitled to an oral hearing as a matter of right. 

On September 27, 2005 appellant appealed to the Board. By order dated December 16, 

2005, the Board noted that OWCP failed to produce the case record and remanded the case for 

reconstruction and proper assemblage of the case record. The Board advised that, to fully protect 

appellant’s appeal rights, an appropriate decision should be issued.3

By decision dated June 13, 2007, OWCP denied appellant’s request for reconsideration of 

the March 29, 2004 decision, finding that it was untimely filed and failed to demonstrate clear 

evidence of error. 

On February 4, 2008 appellant appealed the June 13, 2007 decision to the Board. By 

decision dated February 11, 2009, the Board found the case not in posture for decision, finding 

that appellant’s March 26, 2005 request for reconsideration was timely filed. It set aside the 

2 On August 24, 2004 appellant filed a Form CA-2a, alleging that on August 4, 2004 his right shoulder dislocated.

By decision dated April5, 2005, OWCP denied his claim for a recurrence of disability beginning on August4, 2004.

On July 8, 2005 appellant requested reconsideration of OWCP’s decision dated April 5, 2005, which denied his 

recurrence of disability of August 4, 2004.

3 Docket No. 05-1986 (issued December 16, 2005).
3

June 13, 2007 decision and remanded the case to OWCP to apply the proper standard of review 

for timely requests for reconsideration, to be followed by a de novo decision.

4

 

By decision dated May 1, 2009, OWCP denied modification.

On May 4, 2010 appellant requested reconsideration. By decision dated July 29, 2010, 

OWCP denied modification of the May 1, 2009 decision. On November 30, 2010 appellant again 

requested reconsideration. By decision dated December 29, 2010, OWCP denied his request for 

reconsideration, of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

On March 17, 2011 appellant appealed to the Board. By order dated January 25, 2012, the 

Board found the case not in posture for decision. OWCP did not properly consider all the evidence 

submitted at the time of the December 29, 2010 decision. It set aside the December 29, 2010 

decision and remanded the case to OWCP for proper consideration of the evidence followed by a 

de novo decision.

5

In a decision dated May 24, 2012, OWCP denied modification of the July 29, 2010

decision. 

On May 28, 2013 appellant requested reconsideration. By decision dated June 14, 2013, 

OWCP denied his request for reconsideration of the merits of his claim, finding that it was 

untimely filed and failed to demonstrate clear evidence of error.

OWCP continued to receive medical evidence related to appellant’s right shoulder 

conditions.

On February 19, 2021 appellant requested reconsideration. He requested a “reversal of the 

WEC determination.” Appellant indicated that he returned to work on March 15, 2003 pursuant 

to a March 11, 2003 limited-duty job offer and worked for 18 days or 144 hours. He stopped work 

on April 10, 2003 and underwent surgery under a separate claim, OWCP File No. xxxxxx125. 

Appellant returned to limited-duty work on June 5, 2003 under the March 11, 2003 job offer and 

worked an additional 25.72 hours. He indicated that it became clear to him that his shoulder and 

neck conditions precluded him from performing the March 11, 2003 job offer. Appellant reported 

working 1.72 hours on June 11, 2003 and was placed off duty by his attending physician. He noted 

that this was the last day he worked for the employing establishment. 

By decision dated May 20, 2021, OWCP denied appellant’s request for reconsideration, 

finding that the evidence presented was insufficient to warrant merit review.

The Board having duly considered this matter 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 

4 Docket No. 08-877 (issued February 11, 2009).

5 Docket No. 11-1038 (issued January 25, 2012).
4

the injury-related condition, the employee has been retrained or otherwise vocationally 

rehabilitated, or the original determination was, in fact, erroneous. The burden of proof is on the 

party attempting to establish a modification of the LWEC determination. 

The Board finds that appellant’s February 9, 2021 request for reconsideration was, in fact, 

a request for modification of the August 10, 2004 LWEC determination.6 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. 7

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.8

As OWCP improperly reviewed the case under the standard for reconsideration requests, 

the case must therefore be remanded to OWCP for a proper decision which include s findings of 

fact and a clear and precise statement regarding whether appellant has met his burden of proof to 

establish modification of the LWEC determination.9 Following any further development as 

deemed necessary, OWCP shall issue a de novo decision.

6

20 C.F.R. § 10.511; see C.H., Docket No. 19-1114 (issued April30, 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.

8

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

9

See L.P., Docket No. 20-0154 (issued April7, 2021). R.Z., Docket No. 17-1455 (issued February 15, 2019).
5

IT IS HEREBY ORDERED THAT the May 20, 2021 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: May 20, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board