United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.I., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

RESEARCH LABORATORY, Washington, DC, 

Employer 

__________________________________________ 

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Docket No. 15-0516 

Issued: September 21, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 3, 2015 appellant filed a timely appeal from a July 7, 2014 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the Federal Employees’ 

Compensation Act2

 (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 OWCP properly denied modification of a November 22, 2000 loss 

of wage-earning capacity determination. 

 1

 Appellant timely requested oral argument before the Board. By order dated July 10, 2015, the Board denied the 

request as the issue on appeal could be adequately addressed based on a review of the case record. Thus, the Board 

concluded that an oral argument would serve no useful purpose. See Order Denying Request for Oral Argument, 

Docket No. 15-0516 (issued July 10, 2015). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case has been before the Board on two prior appeals. OWCP accepted that appellant 

sustained a lumbar strain, herniated nucleus pulposus L4-5, and L5 nerve root damage, causally 

related to lifting at work on July 11, 1989. By decision dated November 22, 2000, it reduced his 

compensation finding he had the capacity to earn wages in the selected position of taxicab 

starter/dispatcher. The Board affirmed the loss of wage-earning capacity (LWEC) determination 

by decision dated July 23, 2002.3

The second appeal to the Board was resolved by an order remanding case dated 

April 4, 2014.4 The appeal is discussed later in this decision. 

Appellant continued to receive compensation based on his loss of wage-earning capacity. 

In a report dated June 9, 2010, Dr. Daniel Ignacio, a Board-certified physiatrist, reported that an 

electromyogram (EMG) showed chronic denervation in selected muscles of the legs. He 

diagnosed chronic bilateral L5, left S1 radiculopathy. In a report dated November 22, 2010, 

Dr. Ignacio noted that appellant had worked as a taxicab driver, which involved prolonged 

sitting, as well as lifting and bending while carrying luggage, and this had aggravated appellant’s 

back condition. He provided results on examination and he opined that appellant was totally and 

permanent disabled due to his work condition. 

In a report dated January 5, 2011, Dr. Ignacio opined that appellant was totally disabled 

for work. He noted that appellant had continuing chronic back pain since July 11, 1989. 

Dr. Ignacio provided results on examination, and he diagnosed chronic lumbar disc syndrome 

with chronic lumbar radiculopathy, post-traumatic lumbar spinal stenosis, bilateral hip bursitis, 

and complex regional pain syndrome (CRPS). 

By letter dated February 3, 2011, OWCP advised appellant that he was being referred for 

a second opinion examination. According to a statement of accepted facts (SOAF) dated 

February 3, 2011, appellant had worked as a taxi driver from 2004 to 2006, and as a pizza 

delivery driver from 2006 to 2010. OWCP also confirmed in the SOAF that he had an accepted 

bilateral carpal tunnel syndrome (CTS) from another claim. 

The second opinion physician, Dr. Robert Smith, a Board-certified orthopedic surgeon, 

provided a report dated March 29, 2011. He provided a history and results on examination. 

Dr. Smith noted that the back examination showed no spasm, atrophy, trigger points, or 

deformity, with no objective evidence of radiculopathy. He found that based on his examination, 

and review of magnetic resonance imaging (MRI) scan dated June 30, 2010, it did not appear 

that appellant had any continuing employment-related residuals. Dr. Smith reported that there 

was no evidence of an L4-5 herniated disc on the MRI scan, and the scan indicated that appellant 

had degenerative changes consistent with his age. He also reported that there was no evidence of 

carpal tunnel syndrome. Dr. Smith opined that appellant could perform the position of taxicab 

starter/dispatcher. 

 3

 Docket No. 02-179 (issued July 23, 2002). 

4

 Docket No. 13-1414 (issued April 4, 2014). 
3

OWCP found that there was a conflict in the medical evidence between Dr. Ignacio and 

Dr. Smith. It selected Dr. Mark Levitsky, a Board-certified orthopedic surgeon, as a referee 

physician to resolve the conflict. In a report dated June 1, 2011, Dr. Levitsky provided a history 

and results on physical examination. He reviewed medical evidence of record, noting that 

appellant had a June 30, 2010 MRI scan and June 9, 2010 electromyogram (EMG), and nerve 

conduction velocity (NCV) studies performed by Dr. Ignacio. Dr. Levitsky opined that appellant 

did have residuals of the July 11, 1989 injury. He stated that appellant had pain that had 

progressively worsened over the years and the MRI scan showed significant deterioration of the 

spine. Dr. Levitsky noted the examination for CTS was negative. According to Dr. Levitsky, 

appellant’s current treatment of physical therapy and injections was related more to the 

degenerative condition than the original injury. Dr. Levitsky concluded that appellant was 

capable of performing the taxicab dispatcher position, but he would not be able to drive taxis for 

any prolonged period. 

By decision dated July 12, 2011, OWCP denied modification of the November 22, 2000 

LWEC determination. It found the medical evidence was represented by Dr. Levitsky and not 

sufficient to warrant modification. 

On August 24, 2011 appellant submitted a request for reconsideration. He submitted an 

August 3, 2011 report from Dr. Ignacio providing results on examination. Dr. Ignacio noted that 

he had been shown a letter stating that “the patient’s taxicab starter-dispatcher” position 

represented his wage-earning capacity, and this was an incorrect decision. He stated that 

appellant had performed the taxicab starter-dispatcher position and this would aggravate his 

condition. According to Dr. Ignacio, “I believe forcing [appellant] to continue to perform his job 

does aggravate his medical conditions and have contributed to the progressions of the lumbar 

spinal stenosis.” He noted that appellant’s condition was not only degenerative, but related to 

the employment injury and going back to work would aggravate his condition. 

Appellant also submitted an August 17, 2011 report from Dr. Ignacio, which noted, after 

an examination, that appellant continued to have chronic back pain and was disabled for work. 

By decision dated September 29, 2011, OWCP denied modification of the November 22, 

2000 LWEC determination. It found that the evidence was insufficient to warrant modification. 

The appeal rights to the decision indicated that appellant could request reconsideration or review 

by the Board. 

Appellant continued to submit reports from Dr. Ignacio. In a report dated November 2, 

2011, Dr. Ignacio provided results on examination. He noted that he disagreed with 

Dr. Levitsky’s opinion that appellant’s condition was more related to the degenerative condition. 

Dr. Ignacio reported that he agreed with Dr. Levitsky that appellant could not drive for 

prolonged periods, and he opined that appellant was totally disabled. 

By reports dated December 21, 2011, January 18 and February 22, 2012, Dr. Ignacio 

provided results on examination and found that appellant remained totally disabled. By report 

dated April 9, 2012, he diagnosed chronic progressive lumbar disc syndrome with radiculopathy, 

post-traumatic lumbar spinal stenosis, chronic hip bursitis, and chronic pain syndrome. 

Dr. Ignacio noted that appellant’s spinal injury was getting worse, appellant had significant 
4

neurosurgical dysfunction, and he may need surgery. In a report dated June 18, 2012, he 

specifically reported that appellant may need spinal compression surgery. Dr. Ignacio opined 

that appellant’s lumbar conditions and the spinal injury were all casually related to the July 11, 

1989 work injury. By report dated September 5 and 20, and November 1, 2012, Dr. Ignacio 

again noted that appellant continued to have an employment-related condition and was disabled. 

On November 20, 2012 appellant requested a hearing before an OWCP hearing 

representative. By decision dated November 30, 2012, OWCP denied the request for a hearing. 

It stated that since appellant had previously requested reconsideration, he was not entitled to a 

hearing as a matter of right. 

In a report dated July 7, 2013, Dr. Leonid Selya, a Board-certified orthopedic surgeon, 

provided a history and results on examination. He diagnosed bilateral hip arthritis, end-stage 

disease on the right, flexion contracture, low back pain, bilateral L5 pars defect with instability, 

and chronic low back pain with intermittent radiculopathies. Dr. Selya opined that appellant’s 

condition “is due to injury sustained at work on July 11, 1989, which resulted in aggravation of 

previously irrelevant pars defect at L5 and aggravation of irrelevant at that time degenerative hip 

arthritis which progressed to the end-stage disease.” He opined that appellant was disabled and 

could benefit from hip surgery and lumbosacral fusion. 

The Board reviewed the November 30, 2012 OWCP decision and issued an order 

remanding the case on April 4, 2014.5

 The Board found that the September 29, 2011 decision 

denying modification of the LWEC determination should have provided full appeal rights, 

including the right to request a hearing. It was not a request for reconsideration of the July 12, 

2011 OWCP decision, but a request for modification of the November 22, 2000 LWEC 

determination. The case was remanded to properly issue a decision with full appeal rights. 

Dr. Ignacio prepared a report dated January 22, 2014 and opined that appellant continued 

to have chronic back pain, severe right hip pain, and advanced degenerative joint disease. 

OWCP referred appellant for a second opinion examination by Dr. Willie Thompson, a 

Board-certified orthopedic surgeon. In a report dated June 11, 2014, Dr. Thompson provided a 

history and results on examination. He noted that a May 1, 2013 MRI scan showed degenerative 

changes. Dr. Thompson opined that appellant could not perform heavy lifting or fine 

manipulation. As to the selected position, he opined that appellant was capable of performing 

the taxicab dispatcher position, a sedentary position with no more than 10 pounds lifting. 

By decision dated July 7, 2014, OWCP denied modification of the LWEC determination. 

It found the evidence was insufficient to warrant modification. 

LEGAL PRECEDENT 

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 

 5 Id. 
5

rehabilitated, or the original determination was, in fact, erroneous.6

 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.7

 

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 basis for the opinion.8

 Medical rationale is a medically sound 

explanation for the opinion offered.9 

ANALYSIS 

In the present case, OWCP issued a LWEC determination on November 22, 2000, finding 

that the selected position of taxicab starter/dispatcher fairly and reasonably represented 

appellant’s wage-earning capacity. The position was sedentary with no lifting of more than 10 

pounds. The Board affirmed the LWEC determination by decision dated July 23, 2002. 

Appellant seeks to modify the LWEC determination. As noted above, a modification 

may be established by a material change in the nature and extent of the employment-related 

condition. In reviewing the medical evidence, however, the Board finds appellant has failed to 

provide sufficient evidence to establish that a modification is warranted. 

The attending physician, Dr. Ignacio, opined in a January 5, 2011 report that appellant 

was totally disabled. A second opinion physician, Dr. Smith, opined that appellant could still 

perform the selected position in a March 29, 2011 report. OWCP selected Dr. Levitsky as a 

referee physician under 5 U.S.C. § 8123(a) to resolve a conflict on the issue.10 Dr. Levitsky 

provided an unequivocal opinion in a June 1, 2011 report that appellant could perform the 

selected position. This report resolved the conflict and does not support modification of a 

LWEC determination as of June 1, 2011.11 

 6 Sue A. Sedgwick, 45 ECAB 211 (1993). 

7 Id.

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

9 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical). 

10 FECA provides that, if there is a 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 the 

examination. 5 U.S.C. § 8123(a). 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 or impartial 

examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case. 20 C.F.R. § 10.321. 

11 It is well established that when a case is referred to an impartial medical specialist for the purpose of resolving 

a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background, must be given special weight. Harrison Combs, Jr., 45 ECAB 716, 727 (1994). 
6

The current medical evidence discussing appellant’s ability to perform the duties of the 

selected position of taxicab starter/dispatcher was provided by a second opinion physician, 

Dr. Thompson. In a report dated June 11, 2014, Dr. Thompson opined that appellant was 

capable of performing the duties of the selected position. He provided a complete report and an 

unequivocal opinion on the issue presented. The June 11, 2014 report does not support 

appellant’s claim that a modification of the November 22, 2000 LWEC determination was 

warranted. 

With respect to evidence from appellant’s attending physicians, appellant submitted 

reports from Dr. Ignacio. These reports are of diminished probative value on the specific issue 

of whether there was a material change in an employment-related condition that rendered 

appellant unable to perform the duties of the selected position of taxicab starter/dispatcher. In an 

August 3, 2011 report, Dr. Ignacio asserts an opinion that the taxicab starter/dispatcher position 

did not represent appellant’s wage-earning capacity. His rationale for his opinion was that 

appellant had performed the position and it had aggravated his condition. The record indicated 

that appellant had worked as a taxicab driver, and a pizza delivery driver, not as a taxicab 

starter/dispatcher. The selected position for the LWEC determination was not a position that 

involved prolonged periods of driving or lifting luggage. Dr. Ignacio did not demonstrate an 

understanding of the actual duties of the selected position. In his November 2, 2011 report, he 

noted that he agreed with Dr. Levitsky that appellant could not drive for prolonged periods. 

Again, this is not the issue with respect to modification of the existing LWEC determination in 

this case. 

The continuing reports from Dr. Ignacio do not establish a material worsening of an 

employment-related condition. In his April 9, 2012 report, Dr. Ignacio refers to appellant’s 

spinal injury as getting worse. He does not clearly explain how the condition has worsened or 

why he believes it is related to the July 11, 1989 employment injury. Dr. Ignacio does not 

discuss the actual duties of the selected position and explain why appellant was unable to 

perform the position due to an employment injury. Furthermore, Dr. Ignacio was on one side of 

the conflict in medical opinion that Dr. Levitsky resolved and the continuing reports of 

Dr. Ignacio are insufficient to overcome the special weight accorded the impartial specialist or to 

create a new medical conflict.12 

Dr. Selya provided a number of diagnoses in his July 7, 2013 report, including bilateral 

hip arthritis, bilateral L5 pars defect with instability and chronic low back pain with intermittent 

radiculopathies. He stated that all of these conditions were related to the July 11, 1989 injury, 

without providing a sound medical explanation as to causal relationship. OWCP has not 

accepted a hip condition or L5 pars defect, and Dr. Selya would have to provide a clear medical 

explanation, based on an accurate factual and medical background, as to how the conditions were 

causally related to lifting on July 11, 1989 at work. Simply stating that it aggravated an 

underlying condition does not constitute a sound medical explanation. Moreover, Dr. Selya does 

not discuss the selected position or establish a material worsening in an employment-related 

condition that precluded appellant from performing the selected position. 

 12 Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000). 
7

It is, as noted above, appellant’s burden of proof to establish a modification of the wageearning capacity determination. The medical evidence of record is not sufficient to meet 

appellant’s burden of proof in this case. 

On appeal, appellant states that he disagrees with OWCP’s decision and that OWCP 

failed to properly consider Dr. Ignacio’s reports. He stated that he still needs medical treatment 

and surgery, and he resubmitted medical evidence. The issue in the case is whether the medical 

evidence is sufficient to warrant a modification of the November 22, 2000 LWEC determination. 

The Board has reviewed the evidence of record and finds, for the reasons noted above, that 

appellant did not meet his burden of proof in this case. 

Appellant may request modification of the November 22, 2000 loss of 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 a modification of the 

November 22, 2000 wage-earning capacity determination was warranted. 

ORDER 

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

Compensation Programs dated July 7, 2014 is affirmed. 

Issued: September 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board