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United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.O., Appellant 

and 

DEPARTMENT OF THE ARMY, CORPS OF 

ENGINEERS, RESERVOIR REGULATION & 

WATER QUALITY SECTION, Portland, OR, 

Employer 

__________________________________________ 

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Docket No. 15-0957 

Issued: April 1, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 25, 2015 appellant filed a timely appeal from a December 3, 2014 merit 

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

Employees’ Compensation Act1

 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 her burden of proof to modify the loss of wageearning capacity (LWEC) determination. 

On appeal appellant argues that the position of information clerk is not suitable as it 

involves sitting, reaching, and handling duties that are beyond her capabilities. She contends that 

she was unable to finish her schoolwork due to cervical issues. Appellant also argues that she 

 1

 5 U.S.C. § 8101 et seq. 
2

has hearing loss which would interfere with her ability to deal with the public. Finally, she 

challenges OWCP’s evaluation of the medical evidence and argues that there is no guarantee that 

she will not have a relapse if she returns to work. 

FACTUAL HISTORY 

This case has previously been before the Board. On July 26, 1991 appellant, then a 37-

year-old hydrological technician, filed an occupational disease claim (Form CA-2) alleging that 

as a result of working the keyboard with her right hand she suffered numbness and tingling 

sensation in her right hand and pain in her neck. On June 7, 1991 OWCP accepted appellant’s 

claim for spondylosis with myelopathy, phlebitis and thrombophlebitis of deep vessels of lower 

extremity, and peripheral vascular complications. On September 9, 1991 it also accepted 

appellant’s claim for carpal tunnel syndrome and sprain of the neck. Appellant stopped work on 

May 15, 1992 when she experienced an increase of right hand/wrist symptomology. She 

returned to modified work in September 1992. On May 30, 1996 appellant was restricted from 

regular or modified work and did not return to her federal employment. OWCP paid medical 

and wage-loss compensation benefits. 

Appellant participated in vocational rehabilitation. In an October 12, 2005 report, the 

vocational rehabilitation counselor found that appellant was capable of working as an 

information clerk. He noted that appellant had completed one year of clerical and businessrelated training at Clackamas Community College and had a high school diploma. The 

vocational rehabilitation counselor noted restrictions of no overhead work, lifting no more than 

two pounds with her right arm, and no repetitive flexion/extension or rotational motions of her 

cervical spine. He noted that the physical demands of an information clerk were sedentary and, 

therefore, within her restrictions. The vocational rehabilitation counselor noted that the job was 

performed in sufficient numbers in appellant’s commuting labor market area so as to be 

considered reasonably available. 

In an October 11, 2005 report, Dr. Eric W. Long, appellant’s treating Board-certified 

physiatrist, noted that appellant could not sit for more than 30 minutes at a time or for more than 

4 hours a day, stand for more than 15 minutes at a time or more than 30 minutes a day, and walk 

for more than 15 minutes at a time or 1 hour per day. Dr. Long opined that appellant was not 

physically capable of performing the work of an information clerk based on her tolerances for 

sitting, standing, and walking. 

On July 17, 2006 OWCP proposed reducing appellant’s compensation based on her 

ability to earn wages as an information clerk. It noted that the Department of Labor’s Dictionary 

of Occupational Titles (DOT) describes the position of information clerk as follows: 

“Answers inquiries from persons entering establishment: Provides information 

regarding activities conducted at the establishment, and location of departments, 

offices, and employees within the organization. Informs customer of location of 

store merchandise in retail establishment. Provides information concerning 

services, such as laundry and valet services, in hotel. Receives and answers 

requests for information from company officials and employees. May call 
3

employees or officials to information desk to answer inquiries. May keep record 

of questions as asked.” 

OWCP noted that the position was classified as sedentary in nature, with occasional lifting of up 

to one pound or exerting negligible force in pushing or pulling. It noted that the position 

primarily involves sitting which can be alternated with standing and walking, and that reaching 

and handling are required occasionally. OWCP noted that talking, hearing, and near visual 

acuity are performed frequently. It afforded appellant 30 days to submit any evidence or 

argument regarding her ability to earn wages in the position of information clerk. Appellant did 

not timely respond. 

By decision dated August 21, 2006, OWCP finalized its proposed reduction of 

appellant’s compensation benefits, effective August 21, 2006, based on the constructive LWEC 

position of an information clerk. 

Appellant requested modification of the LWEC and submitted an October 18, 2007 report 

from Dr. Long, who noted that appellant continued to be symptomatic, in spite of activity 

restrictions, and continued to have signs and symptoms of cervical spondylosis, with cervical 

radiculitis and cervical myelopathy. Dr. Long indicated that he had no doubt that her symptoms 

would progress rapidly if she attempted competitive employment. He noted that appellant was 

restricted from regular/modified work from August 2, 2006 through November 18, 2008. 

By decision dated February 12, 2009, OWCP denied appellant’s request for modification 

of the LWEC decision. Appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. 

In a decision dated September 22, 2009, the hearing representative remanded the case for 

further development as to whether there was a material worsening of the cervical spine that 

would prevent appellant from performing the information clerk duties. 

On October 26, 2009 OWCP referred appellant to Dr. Darrell Weinman, a Boardcertified orthopedic surgeon, for a second opinion. In a November 13, 2009 report, 

Dr. Weinman diagnosed bilateral carpal tunnel syndrome postoperative status bilateral carpal 

tunnel releases, cervical sprain, and cervical spondylosis with myopathy. He opined that 

appellant’s cervical spondylosis should not prevent her from performing at sedentary strength 

and the occasional handling and reaching required in the position of information clerk. In the 

work capacity evaluation, Dr. Weinman noted two-hour limitations on wrist movements, 

pushing, and pulling. 

By decision dated January 4, 2010, OWCP denied modification of the August 21, 2006 

LWEC determination. 

Appellant requested a review of the written record on February 4, 2010 and submitted a 

medical report dated February 1, 2010 by Dr. Long. Dr. Long opined that it was clear that 

appellant’s cervical condition had worsened from 1999 to 2003, from 2003 to 2006, and from 

2006 to 2008. He diagnosed upper extremity pain and numbness, onset early 1980s, with median 

lesions, palms, decompressed, ulnar neuropathy elbows right greater than left, no radial 

neuropathy proximal forearms or elbows, imaging evidence of right C4-5 disc herniation with 
4

lateral recess/foraminal stenosis, symptomatic, C6-7 disc bulge, and bilateral C7 radiculitis right 

greater than left. Dr. Long noted that appellant did not have the sitting tolerance to function 

fulltime as an information clerk. He also noted that appellant had sustained bilateral 

sensorineural hearing loss which compromised her ability to function. Dr. Long discussed 

Dr. Weinman’s report and noted that he had not addressed sensory disturbance in the upper 

limbs, hyperreflexia in the upper or lower limbs, or limitation of motion in the shoulder girdles. 

He also noted that Dr. Weinman documented marked limitation of cervical mobility and 

described a positive Waddell’s sign that had not previously been described by Dr. Weinman. 

Finally, Dr. Long noted that Dr. Weinman completed an estimate of physical capacities that was 

grossly inconsistent with appellant’s actual physical capacities. He opined that appellant was 

restricted from regular/modified work from June 18, 2009 through June 1, 2010. 

By decision dated March 1, 2010, OWCP’s Branch of Hearings and Review denied 

appellant’s request for review of the written record as untimely as it was not filed within 30 days 

following the issuance of the January 4, 2010 OWCP decision. 

On January 26, 2011 appellant requested reconsideration “of my reduced benefits,” and 

argued that she was not able to work as an information clerk. By decision dated February 8, 

2011, OWCP denied appellant’s request for reconsideration as it was untimely filed and failed to 

establish clear evidence of error. 

Appellant filed an appeal with the Board on June 28, 2011 under Docket No. 11-1607. In 

an April 23, 2012 decision, the Board found that, while appellant used the term reconsideration 

in her January 26, 2011 request, she implicitly asserted that the medical evidence established that 

her employment-related condition had worsened and that she could not tolerate a position as an 

information clerk. Thus, the Board found that OWCP should have developed the claim as a 

request for modification of her wage-earning capacity.2

 The facts as set forth in the Board’s 

prior decision are hereby incorporated by reference.3

Upon remand, OWCP reviewed the evidence under the proper standard of proof and, by 

decision dated August 21, 2012, denied modification of the LWEC determination. 

On August 19, 2013 appellant requested “reconsideration for modification” of the 

August 21, 2006 LWEC decision. In a letter in support of her reconsideration request, she 

argued that the position of information clerk was not suitable and that the LWEC determination 

should be reversed. Appellant noted that, at the time of the August 21, 2006 decision, after four 

years of returning to her position as a hydrological technician, she was not able to endure the 

pain of sitting at a computer for extended periods of time due to her cervical strain. She argued 

that as an information clerk sits most of the time, that nowhere in the position description does it 

state that an information clerk would be free to stand or walk alternated with sitting, and that no 

 2

 Docket No. 11-1607 (issued April 23, 2012). 

3

 In another appeal, the Board issued a decision on September 11, 2014 wherein it found that OWCP improperly 

determined that appellant forfeited her right to compensation from November 6, 1996 to December 14, 2009, and 

that, therefore, OWCP’s overpayment and forfeiture decision issued on February 1, 2013 was reversed. Docket No. 

13-1809 (issued September 11, 2014), petition for recon. denied (issued November 13, 2015). 
5

employer was going to allow an employee to get up and walk around the room at will. Appellant 

also noted that she was awaiting authorization for surgery. She contended that her medicine 

caused drowsiness and that she loses her balance due to her neck problems. Appellant also 

discussed her hearing problems. 

On October 30, 2013 appellant underwent a C5-6 anterior cervical discectomy for 

decompression of spinal cord; C5-6 and C6-C7 anterior interbody arthrodesis, and anterior 

instrumentation at C5, C6 and C7. 

On November 13, 2013 OWCP modified the LWEC decision of August 21, 2006 finding 

that the medical evidence was sufficient to establish a material worsening of her work-related 

condition effective October 30, 2013, following the surgery. However, the November 13, 2013 

decision denied modification of the LWEC decision prior to October 30, 2013 based on a lack of 

medical evidence establishing that appellant was unable to perform the duties of an information 

clerk prior to her surgery. 

By letter dated October 13, 2014, appellant again requested reconsideration of the LWEC 

determination. She contended that all of her medical conditions were not considered in that she 

had substantial hearing loss that would interfere with her work as an information clerk. 

Appellant also argued that her physicians indicated that she could not do the sitting and reaching 

required for the position of information clerk. 

By decision dated December 3, 2014, OWCP denied modification of the November 13, 

2013 decision. 

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

 

Board precedent5

 and OWCP procedures at Chapter 2.1501 contain provisions regarding 

the modification of a formal LWEC.6

 The relevant part provides that a formal LWEC will be 

modified when: (1) the original rating was in error; (2) the claimant’s medical condition has 

changed; or (3) the claimant has been vocationally rehabilitated.7

 OWCP procedures further 

 4 Katherine T. Kreger, 55 ECAB 633 (2004); see also M.S., Docket No. 15-520 (issued May 19, 2015). 

5 See, e.g., G.E., Docket No. 14-1588 (issued May 12, 2015); D.M., Docket No. 11-1549 (issued June 21, 2012). 

6

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

2.1501 (June 2013). 

7 Id. at Chapter 2.1501.3(a) (June 2013); see also supra note 5. 
6

provide that the party seeking modification of a formal LWEC decision has the burden to prove 

that one of these criteria has been met.8

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background of reasonable medical certainty, and supported by medical 

rationale explaining the decision.9

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.10 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.

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ANALYSIS 

The Board finds that this case is not in posture for decision due to an unresolved conflict 

in the medical evidence. 

Appellant contends that her LWEC determination, as set forth in the August 21, 2006 

OWCP decision, should be modified as the original rating was in error. She also contends that 

her employment accepted conditions have changed, i.e., worsened, since the original LWEC 

decision. 

The Board rejects appellant’s allegation that she could sustain further injury if she 

worked as an information clerk. A fear of future injury is not compensable under FECA.12 

Furthermore, appellant’s argument that the position was not suitable due to her hearing issues is 

without merit. In determining an employee’s LWEC based on a position defined as suitable, but 

not actually held, OWCP must consider the degree of physical impairment, including 

impairments from both injury-related and preexisting conditions, but not impairments resulting 

from postinjury or subsequently acquired conditions.13 Any incapacity to perform the duties of 

the selected position resulting from subsequently acquired conditions is immaterial to the loss of 

wage-earning capacity that can be attributed to the accepted employment injury for which 

appellant may receive compensation.14 There is no evidence that appellant’s hearing was 

 8 Id. at Chapter 2.1501.4 (June 2013); see also supra note 5.

9 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

10 5 U.S.C. § 8123(a). 

11 20 C.F.R. § 10.321. 

12 Manuel Gill, 52 ECAB 282, 286 n.5 (2001). 

13 D.S., Docket No. 13-1397 (issued May 23, 2014). 

14 James Henderson, Jr., 51 ECAB 619 (2000). 
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significantly impaired prior to her accepted employment injury. Therefore, any difficulty that 

appellant may have in hearing is not to be considered in determining appellant’s LWEC. 

The Board finds that at the time that OWCP issued the August 21, 2006 decision finding 

that appellant’s LWEC was based on her ability to perform the duties of information clerk, 

Dr. Long, appellant’s treating physician, opined that appellant was not physically capable of 

performing the work of an information clerk based on her tolerances for sitting, standing, and 

walking. On October 18, 2007 Dr. Long indicated that appellant was restricted from 

regular/modified work from August 2, 2006 through November 18, 2008, noting signs of 

cervical spondylosis with cervical radiculitis and cervical myelopathy. 

In a September 22, 2009 decision, an OWCP hearing representative determined that the 

opinions of Dr. Long established a prima facie case and that a second opinion was necessary. 

On remand, OWCP referred appellant to Dr. Weinman. Dr. Weinman opined that appellant’s 

cervical spondylosis should not prevent her from performing sedentary strength and occasional 

handling and reaching required for the position of information clerk. In a February 1, 2010 

medical opinion, Dr. Long strenuously disagreed with Dr. Weinman’s conclusion. He noted, 

inter alia, that appellant did not have the sitting tolerance to function full time as an information 

clerk; that nothing in Dr. Weinman’s report indicated that he recognized that she had sensory 

disturbance in her upper limbs, hyperreflexia in the upper or lower limbs, or limitation of 

shoulder girdles; and that Dr. Weinman’s estimate of appellant’s physical capabilities was 

grossly inconsistent with appellant’s actual physical capacities. Dr. Long indicated that appellant 

remained restricted from work. 

The conflict in the medical evidence between appellant’s treating physician, Dr. Long, 

who opined that appellant was unable to work as an information clerk, and the physician who 

performed a second opinion for OWCP, Dr. Weinman, who opined that appellant was able to 

work as an information clerk was not resolved. Therefore, there remains an unresolved conflict 

in the medical evidence with regard to appellant’s ability to work as an information clerk.15

The Board finds that the relevant evidence with regard to whether appellant could 

perform the duties of an information clerk to be in equipoise. It is well established that where 

there exist opposing medical reports of virtually equal weight and rationale, the case should be 

referred to an impartial medical specialist for the purpose of resolving the conflict.16 The Board 

will remand the case to OWCP for proper selection of a referee physician. After such further 

development as necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision due to an unresolved conflict 

in the medical evidence. 

 15 See M.M., Docket No. 07-2135 (issued November 25, 2008) (the Board remanded as OWCP had not waited for 

the opinion of the impartial medical examiner prior to issuing its opinion). 

16 See Darlene R. Kennedy, 57 ECAB 414, 416 (2006); see also 5 U.S.C. § 8123(a). 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 13, 2014 is set aside and the case is remanded for 

further proceedings consistent with this opinion of the Board. 

Issued: April 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board