United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Grand Rapids, MI, Employer 

__________________________________________ 

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Docket No. 13-2113 

Issued: March 19, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 16, 2013 appellant, through his attorney, filed an appeal from an August 5, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that a July 6, 2009 

wage-earning capacity decision should be modified. 

On appeal appellant’s attorney asserts that the August 5, 2013 decision is contrary to fact 

and law. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On November 3, 2006 appellant, then a 44-year-old mail handler, filed a traumatic injury 

claim alleging that on November 2, 2006 he injured his head and neck when he hit a stationary 

pole with a Hi-Lo he was driving, causing him to fall. He stopped work that day. On 

November 6, 2006 Dr. James R. Stubbart, a Board-certified orthopedic surgeon, performed a 

cervical laminectomy and fusion from C4 through C7. On December 7, 2008 OWCP accepted 

that a concussion and right forehead laceration were caused by the claimed injury. The claim 

was later expanded to include permanent aggravation of cervical spondylosis with central cord 

syndrome, permanent aggravation of cervical stenosis and incomplete quadriplegia. 

On March 16, 2007 appellant accepted a limited-duty assignment for four hours a day. 

The duties were that he would prep at desk with sit or stand option for four hours a day and 

restrictions on grasping, lifting, twisting and reaching. Appellant returned to modified duty for 

four hours a day on March 24, 2007. He thereafter received compensation for four hours a day. 

In February 2008 appellant was referred to Dr. Craig T. Kuesel, a Board-certified 

osteopath specializing in neurology.2 In a February 26, 2008 report, Dr. Kuesel described a 

history that appellant injured his cervical spine in a motor vehicle accident while in the military, 

the history of injury, his review of the medical record and physical examination findings. He 

diagnosed partial quadriparesis due to myelopathy and due to preexisting cervical spondylosis, 

aggravated by the November 2, 2006 employment injury which produced numbness in 

appellant’s extremities and significant pain. Dr. Kuesel advised that appellant was disabled from 

full-time work duties, that he had significant work restrictions, and that he should not work more 

than four hours a day, five days a week. He also indicated that appellant needed to use a fourprong cane. 

Appellant came under the care of Dr. Stephen Winston, Board-certified in anesthesiology 

and pain medicine, who provided progress notes beginning on April 15, 2008 in which he 

described appellant’s physical findings and medical management. 

On July 19, 2008 the employing establishment offered appellant a modified mail handler 

position based on the restrictions provided by Dr. Kuesel. The offer indicated that the job was 

tailored to meet appellant’s physical needs. Appellant accepted the position on July 23, 2008. 

In a July 6, 2009 decision, OWCP found that appellant’s part-time earnings in the 

modified mail handler position fairly and reasonably represented his wage-earning capacity. It 

applied the principles identified in the Shadrick decision,3

 finding a new wage-earning capacity 

of 51 percent, and reduced his compensation accordingly, effective July 1, 2009. OWCP found 

that, based on the restrictions provided by Dr. Kuesel, appellant was capable of part-time 

employment in the modified position. 

 2

 In a decision dated February 20, 2008, appellant’s monetary compensation was suspended for failure to attend a 

scheduled medical evaluation with Dr. Kuesel. In a May 14, 2008 decision, an OWCP hearing representative 

reversed the suspension because the appointment letter was not properly addressed. 

3 Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d). 
3

On June 24, 2010 the employing establishment notified appellant that, under the National 

Reassessment Program (NRP), there was no work available for him and that he would remain on 

administrative leave until July 24, 2010. Appellant claimed wage loss beginning July 24, 2010. 

On the claim form, the employing establishment indicated that he was an “NRP employee.” 

By letter dated November 3, 2010, OWCP informed appellant of the criteria needed to 

modify the July 6, 2009 wage-earning capacity determination. In a second letter, it asked the 

employing establishment to provide medical evidence in their possession and information 

regarding the position he was working at the time he was sent home under NRP, including 

whether his duties had changed since the wage-earning capacity determination of July 6, 2009. 

Dr. Winston and his associate Dr. Derek Lado, a Board-certified physiatrist, continued to 

submit progress reports regarding appellant’s condition and care. On November 30, 2010 he 

indicated that appellant’s pain had escalated and that he had progressive weakness. Dr. Winston 

advised that appellant was no longer able to work due to the progression of his symptoms. A 

December 7, 2010 nuclear medicine bone scan demonstrated severe degenerative changes in the 

right C3-4 facet joint and milder changes in the left C4-5 facet joint. A follow-up cervical 

computerized tomography (CT) study confirmed the diagnoses. On December 13, 2010 

Dr. Lado indicated that appellant had increased loss of balance and was describing myoclonic 

jerks and increased spasticity. He recommended physical therapy to increase mobility. 

Appellant had a series of lidocaine and Botox cervical spine injections. A November 23, 2011 

magnetic resonance imaging (MRI) scan study of the cervical spine demonstrated postsurgical 

changes, bilateral foraminal encroachment at C3-4 and no acute findings. 

By letter dated April 13, 2012, OWCP asked Dr. Winston to provide an update on 

appellant’s medical condition, to include whether he could return to full- or part-time 

employment, with or without restrictions. In progress notes dated June 27 and August 12, 2012, 

Dr. Winston advised that appellant could not work due to pain and chronic myelopathic changes 

from C5 to C6 with some numbness in the distal extremities. On November 6, 2012 he informed 

the employing establishment that appellant was unable to work. 

In November 2012 OWCP referred appellant to Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, for a second-opinion evaluation. In a December 10, 2012 report, 

Dr. Obianwu noted his review of the statement of accepted facts and medical record and 

appellant’s medical history that included the 1985 cervical injury when he was in the military 

and the employment injury that occurred on November 2, 2006. He described appellant’s 

complaints of radiating neck pain and limited function in the hands and feet with numbness and 

spasm and occasional falls. Dr. Obianwu provided extensive physical examination findings, 

noting hyporeflexia in upper extremity reflexes and diminished grasp strength in both hands, an 

obvious left-sided scoliosis and tenderness about the cervicothoracic junction. There was no 

intrinsic atrophy of the hands and no gross weakness of upper extremity muscle groups. 

Dr. Obianwu indicated that appellant walked with an exaggerated limp, leaning against his cane. 

He diagnosed preexisting old posterior fusion at C1 to C2 with marked angulation of the 

relationship between C1 and C2; preexisting, fairly significant degenerative changes of the lower 

cervical spine with neural foraminal narrowing on the left; old clay shoveler’s fracture of C7; 

status post posterior cervical laminectomies at C4, C5, C6 and subtotal C7 laminectomies; status 

post posterior instrumentation at C4 through C7, with lateral mass screw and rod construct; 
4

posterolateral fusion at C4 through C7; and mild cervical myelopathy. Dr. Obianwu advised that 

appellant continued to have objective findings of the accepted conditions, indicating that the 

accepted aggravation of cervical spondylosis still existed but the conditions of central cord 

syndrome and aggravation of cervical stenosis no longer existed. He further indicated that 

incomplete quadriplegia no longer existed because weakness characteristic of central cord 

syndrome in the upper extremity did not exist and there was a lot of exaggeration and 

inconsistency in appellant’s responses. Dr. Obianwu stated that appellant had limitation of range 

of motion partly attributable to the fused cervical spine and this also caused persistence of some 

weakness in the upper extremities that was not as gross a condition as quadriparesis but did limit 

functional capacity. He concluded that appellant could not return to full duty due to the accepted 

conditions but could work with restrictions. Dr. Obianwu opined that appellant needed extensive 

vocational rehabilitation. On an attached work capacity evaluation, he indicated that appellant 

was capable of working four hours of restricted duty with permanent restrictions of no reaching 

above the shoulder, bending or stooping. Walking, standing and twisting were limited to one 

hour and lifting limited to 20 pounds for two hours. 

In a January 17, 2013 decision, OWCP denied appellant’s claim for wage-loss 

compensation beginning on July 24, 2010 on the grounds that the evidence submitted was 

insufficient to modify the July 6, 2009 wage-earning capacity decision. It noted reviewing the 

evidence in accordance with FECA Bulletin No. 09-05 and found that the record established that 

the position on which the wage-earning capacity decision was based was a bona fide position and 

that, while the medical evidence established that he continued to have residuals of the work 

injury, he was able to work in a limited-duty assignment for four hours per day, consistent with 

the modified mail handler position he was doing prior to July 24, 2010 when he was sent home. 

Appellant, through his attorney, timely requested a hearing that was held on 

May 16, 2013. At the hearing counsel asserted that the July 6, 2009 wage-earning capacity 

determination was in error because the position on which it was based was part time when 

appellant had been working full time when he was injured on November 2, 2006 and the position 

was makeshift because it was made to accommodate his specific restrictions. He further 

maintained that, as appellant’s light duty was withdrawn, he had established a recurrence of 

disability. Appellant described his regular and limited-duty positions and indicated that he still 

received pay based on the July 6, 2009 wage-earning capacity decision. 

In reports dated August 28, 2012 through April 23, 2013, Dr. Winston described 

appellant’s continued medical care. He advised that appellant was unable to work due to his 

chronic weakness and postlaminectomy fusion pain syndrome. In a June 5, 2013 report, 

Dr. Stubbart described appellant’s medical history and complaints of radiating neck pain, 

numbness and tingling in the hands and feet and occasional leg jerks that caused him to fall. He 

found severe loss of cervical range of motion on physical examination with diminished sensation 

in the left C8 and T1 dermatomes. Hoffman’s and Clonus examinations were positive 

bilaterally. Dr. Stubbart’s impression was status post C1 to C2 posterior fusion and C4 through 

C7 posterior fusion with laminectomies, myelopathy, chronic neck pain and stiffness and 

disability. He advised that appellant was clearly impaired and had a significant degree of 

disability. Dr. Stubbart recommended additional diagnostic studies. In a June 5, 2013 report, 

Dr. Winston indicated that appellant had a “horrible” neck with limited range of motion. He 

noted that 2010 diagnostic studies showed good decompression but also showed progression of 
5

degenerative changes in the cervical spine and opined that appellant was disabled. A June 11, 

2013 cervical spine MRI scan study demonstrated no change since the November 23, 2011 study. 

A June 11, 2013 CT scan of the cervical spine demonstrated extensive postoperative changes and 

little alteration when compared to the November 23, 2011 MRI scan study. In a June 26, 2013 

report, Michael J. Parniske, a physician’s assistant and associate of Dr. Stubbart, noted reviewing 

the diagnostic studies with Dr. Stubbart. He indicated that appellant would always have some 

degree of neurologic dysfunction and that his ability to work was severely restricted due to 

ataxia, upper extremity weakness, restricted cervical spine range of motion and advanced 

cervical spondylosis with a risk of falls. Mr. Parniske concluded that appellant was disabled and 

this was consistent with Dr. Stubbart’s opinion. 

In an August 5, 2013 decision, an OWCP hearing representative affirmed the January 17, 

2013 decision. She found that the position on which the wage-earning capacity determination 

was based was a bona fide job, that appellant had not been retrained or vocationally rehabilitated 

and that the medical evidence did not establish that he was totally disabled. 

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, represents a claimant’s ability to earn 

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

remains undisturbed until properly modified.4 OWCP procedures at section 2.1501 contain 

provisions regarding the modification of a formal loss of wage-earning capacity.5

 The relevant 

part provides that a formal loss of wage-earning capacity will be modified when: (1) the original 

rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the 

claimant has been vocationally rehabilitated.6 Section 2.1501 further provides that FECA 

Bulletin No. 09-05 should be consulted if the circumstances in the case indicate that the position 

in question may have been withdrawn (in whole or in part) as a result of NRP.7 FECA Bulletin 

No. 09-05 outlines the procedures OWCP should follow when limited-duty positions are 

withdrawn pursuant to NRP. If OWCP has issued a formal wage-earning capacity 

determination, it must develop the evidence to determine whether a modification of that 

determination is appropriate.8

 FECA Transmittal No. 13-09 provides information regarding 

updating of procedure manual sections 2.814 and 2.816 and 2.1500 and 2.1501.9 OWCP 

 4 Katherine T. Kreger, 55 ECAB 633 (2004). 

5

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter 

2.1501 (June 2013). 

6 Id. at § 2.1501.3(a). 

7 Id. at § 2.1501.1. 

8

 FECA Bulletin No. 09-05 (issued August 18, 2009). 

9

 FECA Transmittal No. 13-09 (issued June 4, 2013). 
6

procedures further provide that the party seeking modification of a formal loss of wage-earning 

capacity decision has the burden to prove that one of these criteria has been met.10

ANALYSIS 

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

appellant sustained a concussion, right forehead laceration, permanent aggravation of cervical 

spondylosis with central cord syndrome, permanent aggravation of cervical stenosis, and 

incomplete quadriplegia on November 2, 2006 when he was involved in a Hi-Lo accident at 

work. Dr. Stubbart performed cervical laminectomy and fusion from C4 through C7 on 

November 6, 2006. Appellant returned to a modified mail handler position for four hours a day 

on July 23, 2008. On July 6, 2009 OWCP issued a formal wage-earning capacity decision, 

finding that his part-time work fairly and reasonably represented his wage-earning capacity and 

reduced his compensation accordingly. Appellant continued his part-time mail handler duties 

until June 24, 2010 when he was sent home under NRP. He thereafter claimed wage loss 

beginning July 24, 2010. 

When a loss of wage-earning capacity decision has been issued, as provided in section 

2.1501 of OWCP procedures, FECA Bulletin No. 09-05 is to be consulted if a position has been 

withdrawn under NRP.11 FECA Bulletin No. 09-05 requires OWCP to develop the evidence to 

determine whether a modification of the decision is appropriate.12 The FECA Bulletin No. 09-05 

asks OWCP to confirm that the record contains documentary evidence supporting that the 

position on which the wage-earning capacity determination was made was an actual bona fide

position. It further requires OWCP to review whether current medical evidence supports workrelated disability and establishes that the current need for limited duty and medical treatment is a 

result of residuals of the employment injury and to further develop the evidence from both 

appellant and the employing establishment if the record lacks current medical evidence.13

The FECA Bulletin No. 09-05 further states that OWCP, in an effort to proactively 

manage these types of cases, may undertake further nonmedical development, such as requiring 

that the employing establishment address in writing whether the position on which the wageearning capacity determination was based was a bona fide position at the time of the wageearning capacity decision and direct the employing establishment to review its files for 

contemporaneous evidence concerning the position. 

In the case at hand, while OWCP wrote the employing establishment on November 3, 

2010 requesting information regarding the position appellant was working at the time he was 

sent home under NRP, including whether his duties had changed since the wage-earning capacity 

determination of July 6, 2009, it did not specifically ask the employing establishment if the 

position on which the wage-earning capacity was based was a bona fide position at the time of 

 10 Supra note 5 at § 2.1501.4. 

11 Supra note 7. 

12 Supra note 8. 

13 Id. 
7

the wage-earning capacity decision. The record does not contain a response from the employing 

establishment. Moreover, OWCP procedures in effect at the time the wage-earning capacity was 

issued provided that the reemployment may not be considered suitable when the position was 

part time and the employee did not work part time at the time of injury.14 In this case on the date 

of injury, November 2, 2006, appellant was a full-time mail handler, and the July 6, 2009 wageearning capacity determination was based on a part-time position. It was therefore erroneous on 

its face. Moreover, the position description on which the July 6, 2009 wage-earning capacity 

determination was based clearly indicated that the job was tailored to meet appellant’s physical 

needs and, as noted above, OWCP failed to secure information from the employing 

establishment regarding the legitimacy of the position. 

Lastly, the Board notes that the record is replete with evidence that appellant continues to 

have significant residuals of the accepted conditions, as described by his attending physicians 

Drs. Winston, Lado and Stubbart, and by OWCP referral physician, Dr. Obianwu. 

As OWCP failed to follow the guidelines provided in FECA Bulletin No. 09-5, the Board 

will set aside the August 5, 2013 decision and remand the case to OWCP. After proper and 

documented compliance with FECA Bulletin No. 09-05 and any further evidence deemed 

necessary, OWCP shall issue an appropriate decision on appellant’s entitlement to wage-loss 

compensation beginning July 24, 2010.15

CONCLUSION 

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

modification of OWCP’s July 6, 2009 wage-earning capacity determination is warranted. 

 14 Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.7 (July 1997). These procedures were 

modified in June 2013. 

15 See L.P., Docket No. 12-1297 (issued June 18, 2013). 
8

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2013 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: March 19, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board