United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.M., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

BLACKFEET COMMUNITY HOSPITAL, 

Browning, MT, Employer 

__________________________________________ 

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Docket No. 16-0618 

Issued: July 19, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On February 15, 2016 appellant, through counsel, filed an application for review of a 

December 14, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

The appeal was docketed as No. 16-0618.2

 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 August 18, 2004 appellant, a clinical assistant, injured her low back while lifting a table. She stopped work 

that day. OWCP accepted lumbar strain and herniated disc. Appellant was placed on the periodic compensation 

rolls in April 2005. On August 2, 2006 Dr. Michael E. Luckett, a Board-certified orthopedic surgeon, performed a 

lumbar fusion. In March 2012 OWCP referred appellant to Dr. Boyd Max Iverson, a Board-certified orthopedic 

surgeon, for a second opinion evaluation. In reports dated April 11 and 29, 2012, Dr. Iverson opined that appellant 

could return to modified duty. Appellant had a thoracic epidural stimulator implanted on May 3, 2012. OWCP 

referred appellant for vocational rehabilitation in June 2012. 
2

The Board has duly reviewed the record and finds that the case is not in posture for 

decision. By decision dated May 13, 2014, OWCP reduced appellant’s compensation based on 

her capacity to earn wages in the constructed position of receptionist. By decision dated 

March 12, 2015, an OWCP hearing representative affirmed the May 13, 2014 decision. 

On November 10, 2015 appellant, through counsel, requested reconsideration. In support 

appellant submitted a personal statement in which she requested that full benefits be reinstated, 

asserting that she was in constant pain and needed assistance with activities of daily living. She 

also submitted treatment notes dated May 20 to October 14, 2015 from Dr. Kraig Allan Ward, an 

attending Board-certified physiatrist and pain medicine specialist. In correspondence dated 

October 14, 2015, Dr. Ward advised that he began treating appellant in 2006 and opined that she 

continued to struggle with ongoing disabling back pain. He advised that an electrodiagnostic 

study demonstrated ongoing denervation, and that she had right lower extremity weakness and 

pain. By decision dated December 14, 2015, OWCP denied modification of the March 12, 2015 

decision. It did not address the criteria for modifying a wage-earning capacity decision. 

The Board finds that the issue presented in this case is whether the May 13, 2014 wageearning capacity determination should be modified. With her November 10, 2015 

reconsideration request appellant requested resumption of full wage-loss compensation and 

submitted evidence regarding her medical condition. 

As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on 

May 13, 2014, prior to the time she requested reconsideration on November 10, 2015. Board 

precedent directs the claims examiner to consider the criteria for modification when a claimant 

requests resumption of compensation for total wage loss.3

 The Board finds that OWCP should 

have adjudicated the issue of modification of the wage-earning capacity determination.4

 If there 

is a claim for increased disability that would prevent a claimant from performing the position 

that was the basis for the wage-earning capacity decision, then clearly there is an issue of 

whether modification is appropriate.5 The Board will therefore remand the case to OWCP for 

proper adjudication, to be followed by an appropriate merit decision to preserve appellant’s 

appeal rights. 

 3 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); see Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501 

(June 2013). 

4 F.B., Docket No. 09-99 (issued July 21, 2010). 

5 R.L., Docket No. 16-0072 (issued February 11, 2016). 
3

IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of 

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

consistent with this order of the Board. 

Issued: July 19, 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