United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Decatur, IL, Employer 

__________________________________________ 

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Docket No. 14-1503 

Issued: November 24, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 18, 2014 appellant, through his attorney, filed a timely appeal from a May 14, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying 

modification of its loss of wage-earning capacity determination. 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 established that the July 30, 2009 loss of wage-earning 

capacity determination should be modified. 

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated September 5, 2012, 

the Board set aside a September 14, 2011 decision denying modification of the July 30, 2009 loss 

 1

 5 U.S.C. § 8101 et seq. 
2

of wage-earning capacity determination.2 The Board noted that appellant filed a recurrence of 

disability beginning January 26, 2011 after his limited-duty position was withdrawn and his 

hours reduced under the National Reassessment Program (NRP). The Board remanded the case 

for OWCP to apply FECA Bulletin No. 09-05. In a decision dated November 18, 2013, the 

Board affirmed an April 30, 2013 OWCP decision finding that appellant did not have any 

permanent impairment of the lower extremities.3 The facts and circumstances as set forth in the 

prior decisions are hereby incorporated by reference. The facts relevant to the instant appeal are 

set forth. 

After remand by the Board, in a decision dated October 25, 2012, OWCP denied 

modification of its July 30, 2009 loss of wage-earning capacity decision. On May 1, 2013 an 

OWCP hearing representative affirmed the October 25, 2012 decision. He found that OWCP 

applied FECA Bulletin No. 09-05 and determined that appellant had not established that the 

wage-earning capacity should be modified either because the position was makeshift or because 

his condition materially worsened. 

The record reflects that appellant continued to work in his part-time modified positon 

until he stopped work on August 15, 2011. He returned to work on November 18, 2011 for eight 

hours a day in his previous limited-duty employment. The position required appellant to perform 

his usual duties with frequent breaks and no overtime. 

On September 10, 2012 appellant alleged that he sustained hip and low back pain due to 

factors of his federal employment. OWCP accepted the claim for lumbar sprain under claim file 

number xxxxxx064. It doubled the case record into the current claim file number xxxxxx054. 

In a report dated September 10, 2012, Dr. Patrick A. Hartman, Board-certified in family 

practice, evaluated appellant for low back pain. Appellant identified the reason for his visit as 

low back and bilateral hip pain from an employment injury. Dr. Hartman diagnosed low back 

pain. In a duty status report dated September 10, 2012, he diagnosed low back strain and 

provided work restrictions, including lifting and carrying up to five pounds and standing and 

walking for two hours a day. The duty status report listed the date of injury as 

September 7, 2012. Dr. Hartman checked “yes” that the history of injury given by appellant 

 2

 On February 23, 2006 appellant, then a 40-year-old letter carrier, filed a traumatic injury claim alleging that on 

February 16, 2006 he experienced left shoulder pain while casing mail. OWCP accepted the claim, assigned claim 

file number xxxxxx054, for a left displaced cervical intervertebral disc. It further accepted that on January 18, 2006 

appellant sustained lumbar strain and herniated discs at L1-2 and L5-S1. OWCP assigned the claim file 

number xxxxxx218. It combined both file numbers into claim file number xxxxxx054. On July 28, 2008 appellant 

underwent a right laminectomy and discectomy at L5-S1. He also underwent cervical surgeries on October 8 

and 27, 2008. On April 2, 2009 appellant accepted a positon with the employing establishment casing and carrying 

mail for eight hours a day with no overtime and frequent breaks. By decision dated July 30, 2009, OWCP reduced 

his compensation to zero based on its finding that his actual earnings beginning April 2, 2009 fairly and reasonably 

represented his wage-earning capacity. 

3

 Docket No. 13-1562 (issued November 18, 2013). By decision dated January 20, 2012, OWCP granted 

appellant a schedule award for a 13 percent left upper extremity impairment. In a decision dated July 24, 2012, it 

denied his claim for a schedule award of the lower extremities. On September 20, 2012 an OWCP hearing 

representative set aside the July 24, 2012 decision. In decisions dated October 23, 2012 and April 30, 2013, OWCP 

again determined that appellant was not entitled to a schedule award of the lower extremities. 
3

corresponded to that on the claim form of lower back and hip pain. He completed duty status 

reports dated September 2012 to August 2013 providing the same work restrictions but listing 

the date of injury as February 16, 2005. Dr. Hartman again checked “yes” that the history 

provided corresponded to that described on the form of hip and low back pain. 

In a report dated September 17, 2012, Dr. Hartman found that appellant’s back was 

slowly improving from being off work. On October 1, 2012 he diagnosed hip and low back pain 

and increased his lifting restrictions to 10 pounds. On November 5, 2012 Dr. Hartman related 

that appellant heard something pop when he bent over to get his shoes and experienced radiating 

pain into his right leg. He diagnosed radicular pain. In a report dated November 26, 2012, 

Dr. Hartman diagnosed back pain with little change and the same restrictions. In progress 

reports dated December 2012 through July 2013, he provided findings on examination and 

discussed his treatment of appellant for low back pain. 

On October 18, 2012 appellant filed a claim for compensation (Form CA-7) requesting 

compensation for time lost from September 8 to October 19, 2012. On August 9, 2013 he filed a 

claim for compensation from September 13, 2012 through August 9, 2013. 

By letter dated August 28, 2013, OWCP informed appellant that it had received his claim 

for compensation and noted that his physician submitted duty status reports beginning 

September 10, 2012 with increased work restrictions. It found that the date of injury on the 

reports changed from September 7, 2012, the date of his occupational disease under claim file 

number xxxxxx064, to February 16, 2005. OWCP provided appellant 30 days to submit 

reasoned medical evidence that his condition had materially worsened. 

On August 27, 2013 the employing establishment indicated that appellant worked either 

full or part time from January 2011 until he stopped work on August 15, 2011. Appellant 

returned to work on November 18, 2011 and worked full time until he stopped work on 

September 12, 2012 because it did not have work available. 

In a report dated September 12, 2013, Dr. Hartman opined that appellant was unable to 

work beginning September 7, 2012 due to hip and low back pain. He stated, “Etiologies are 

often complex and mixed problems seem to be at play here.” 

By decision dated October 8, 2013, OWCP denied modification of its July 30, 2009 loss 

of wage-earning capacity determination. It found that appellant did not establish that his 

condition materially worsened.4

In a report dated October 10, 2013, Dr. Hartman advised that appellant was seen to 

“discuss his [w]orkers’ [c]ompensation for the [employing establishment].” He diagnosed 

chronic low back pain and noted that he was not working. 

On October 14, 2013 appellant, through his attorney, requested a telephone hearing 

before an OWCP hearing representative. 

 4

 OWCP noted that a March 29, 2013 magnetic resonance imaging scan study showed no disc herniations. 
4

In a report dated November 11, 2013, Dr. Hartman noted that appellant “presents for 

[w]orkers’ [c]ompensation follow up.” He diagnosed low back and hip pain and found that his 

work restrictions had not changed. November 11, 2013 x-rays showed mild bilateral hip 

degenerative changes. 

On December 17, 2013 Dr. Hartman evaluated appellant for low back pain and weakness 

in his leg. He provided a specific diagnosis of low back pain and increased leg weakness. On 

January 14, 2014 Dr. Hartman advised that an electromyography (EMG) revealed radiculopathy 

at L5-S1 of undetermined age. On February 13, 2014 he noted that he was following up on 

appellant’s back injury, which had not changed, and he diagnosed continued low back pain. 

At the telephone hearing, held on March 12, 2014, appellant related that he was currently 

receiving disability retirement compensation. He related that his supervisor told him to pursue 

his claim under the 2005 work injury rather than the 2012 occupational disease claim. After 

appellant filed his September 2012 occupational disease claim, he provided new work 

restrictions to the employing establishment, but the employing establishment was unable to 

provide work within the new restrictions. Counsel attributed the worsening of appellant’s 

condition to his 2012 occupational disease claim, assigned claim file number xxxxxx064 and 

accepted for lumbar strain. An OWCP hearing representative advised appellant to claim 

disability compensation under claim file number xxxxxx064. He informed counsel that even if 

the cases were administratively doubled, claims for disability should be filed under the specific 

file number. 

On February 13, 2014 Dr. Hartman diagnosed continued low back pain. In a report dated 

March 18, 2014, he stated, “[Appellant] presents for review of his low back pain that has been 

ongoing. He has multiple medical problems, but he says his low back pain is persistent since his 

injury in the [employing establishment].” Dr. Hartman diagnosed low back pain. 

In a report dated March 18, 2014, Dr. Hartman indicated that appellant’s left leg pain 

“clearly seems to be related to his L5-S1 radiculopathy” confirmed by EMG. He recommended 

an evaluation by a specialist. 

On April 17, 2014 Dr. Hartman provided examination findings and diagnosed low back 

pain with restrictions “as ordered.” 

By decision dated May 14, 2014, an OWCP hearing representative affirmed the 

October 8, 2013 decision. The hearing representative found that appellant had not established 

that he sustained a material worsening of his condition from his February 16, 2005 injury such 

that he was disabled from his modified employment as of September 13, 2012. 

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 
5

wages.5 Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.6

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.7

 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.8

ANALYSIS 

OWCP accepted that appellant sustained cervical disc displacement and root lesions due 

to a February 16, 2005 work injury under claim file number xxxxxx054. It further accepted that 

on January 18, 2006 he sustained a herniated lumbar disc and lumbar strain under claim file 

number xxxxxx218 and combined the claims under claim file number xxxxxx054. On 

April 2, 2009 appellant accepted a position with the employing establishment casing and 

carrying mail for eight hours a day with no overtime and frequent breaks. By decision dated 

July 30, 2009, OWCP reduced his compensation to zero after finding that his actual earnings as a 

modified mail carrier beginning April 2, 2009 fairly and reasonably represented his 

wage-earning capacity. 

The employing establishment reduced appellant’s hours under NRP as of 

January 26, 2011. Appellant filed a recurrence of disability beginning that date. By decision 

dated September 5, 2012, the Board set aside OWCP decisions denying modification of the 

wage-earning capacity determination and remanded the case for OWCP to apply FECA Bulletin 

No. 09-05. On remand, in decisions dated October 25, 2012 and May 1, 2013, OWCP found that 

appellant had not established that modification of the wage-earning capacity decision was 

warranted. 

Appellant worked part time until August 15, 2011, when he stopped work. On 

November 18, 2011 he returned to work for eight hours a day in his modified position. On 

September 10, 2012 appellant filed an occupational disease claim, accepted by OWCP for 

lumbar sprain under claim file number xxxxxx064. He provided increased work restrictions to 

the employing establishment. The employing establishment did not have work available within 

appellant’s increased restrictions. On October 18, 2012 appellant filed a claim for compensation 

beginning September 8, 2012. 

In his claim for compensation, appellant has not alleged that the employing establishment 

withdrew his modified duties or reduced his hours under NRP. He also has not contended that 

the original loss of wage-earning capacity determination was in error. Instead, appellant argues 

 5 See 5 U.S.C. § 8115 (determination of wage-earning capacity). 

6 Sharon C. Clement, 55 ECAB 552 (2004). 

7 Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000). 

8 Id. 
6

that his condition worsened such that he was unable to perform his modified work duties. He has 

the burden of proof to show a material change in the nature and extent of an injury-related 

condition.9

The Board finds that appellant has not submitted medical evidence sufficient to establish 

that he was unable to perform the duties of his April 2, 2009 position. In duty status reports 

dated September 10, 2012 to August 11, 2013, Dr. Harman diagnosed either low back strain or 

low back pain and provided work restrictions, including no lifting over five pounds. He checked 

“yes” that the history of injury given by appellant corresponded to that on the claim form of low 

back and hip pain. The Board has held, however, that an opinion on causal relationship which 

consists only of a physician checking “yes” to a medical form question on whether the claimant’s 

condition was related to the history given is of little probative value. Without explanation or 

rationale for the conclusions reached, such report is insufficient to establish causal relationship.10

In a report dated September 10, 2012, Dr. Hartman diagnosed low back and bilateral hip 

pain. In progress notes dated September 17 and October 1, 2012, he listed findings on 

examination and discussed work restrictions. On November 5, 2012 Dr. Hartman diagnosed 

radicular pain, noting that appellant heard a pop when he bent over to get his shoes. In progress 

notes dated November 26 through July 11, 2013, he treated appellant for low back pain. 

Dr. Hartman did not, however, specifically relate any diagnosed condition or total disability to 

the February 16, 2005 or January 18, 2006 work injuries. Medical evidence that does not offer 

any opinion regarding the cause of an employee’s condition is of diminished probative value on 

the issue of causal relationship.11 

On September 12, 2013 Dr. Hartman stated that appellant was not able to work as of 

September 7, 2012 as a result of pain in his hip and low back. He related that the etiology of his 

condition was complicated and appeared to result from different factors. As Dr. Hartman did not 

relate any condition to employment, his opinion is insufficient to meet appellant’s burden of 

proof to show a material change in his injury-related condition. 

In a report dated October 10, 2013, Dr. Hartman noted that appellant wanted to discuss 

his workers’ compensation claim. He diagnosed chronic low back pain. On November 11, 2013 

Dr. Hartman advised that appellant was seen in follow-up for workers’ compensation. He 

diagnosed low back and hip pain and noted that his work restrictions had not changed. On 

December 17, 2013 Dr. Hartman diagnosed low back pain and increased leg weakness. In a 

January 14, 2014 progress report, he noted that an EMG showed L5-S1 radiculopathy of an 

unknown age. Dr. Hartman diagnosed low back pain. On February 13, 2014 he noted that he 

was following up on appellant’s back injury, which had not changed. Dr. Hartman diagnosed 

low back pain. While he indicated that appellant was seeking treatment for workers’ 

compensation, he did not relate any diagnosed condition to a work injury or attribute the 

 9 See Harley Sims Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000) (the burden of proof is on 

the party attempting to show modification of the wage-earning capacity determination). 

10 Cecelia M. Corley, 56 ECAB 662 (2005); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box 

“yes” in a form report, without additional explanation or rationale, is insufficient to establish causal relationship). 

11 See A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999). 
7

increased work restrictions to employment.12 Consequently, Dr. Hartman’s reports are of 

diminished probative value. 

Appellant has not submitted a probative medical opinion establishing a material change 

in the nature and extent of his accepted condition of February 16, 2005. As discussed at the 

hearing, if he believes that he sustained disability due to his accepted September 2012 

occupational disease, he should pursue a claim for compensation under that alternate file 

number. 

Appellant may request modification of the wage-earning capacity determination, 

supported by new evidence or argument, at any time before OWCP. 

CONCLUSION 

The Board finds that appellant has not established that the July 30, 2009 loss of 

wage-earning capacity determination should be modified. 

ORDER 

IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 24, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board 

 12 Id.