United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

DEPARTMENT OF THE NAVY, 

CHARLESTON NAVAL SHIPYARD, 

North Charleston, SC, Employer 

__________________________________________ 

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Docket No. 16-0087 

Issued: August 24, 2016 

Appearances: Case Submitted on the Record

Lawrence C. Kobrovsky, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 19, 2015 appellant, through counsel, filed a timely appeal of a September 3, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

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

Board has jurisdiction to consider the merits of the case. 

 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

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met his burden of proof to establish modification of a 

November 22, 2002 loss of wage-earning capacity determination. 

On appeal appellant contends that his accepted skin condition has worsened without any 

intervening cause or break in the chain of causation. He argues that he is totally disabled from 

working due to his accepted employment condition. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated September 3, 2002, 

the Board reversed an OWCP decision dated September 5, 2000 concerning a loss of wageearning capacity determination.3

 In reaching its determination, the Board found that OWCP had 

failed to consider all the medical evidence from appellant’s treating psychologists and failed to 

provide sufficient rationale regarding the suitability of the constructed position. Thus, the Board 

found OWCP had improperly reduced appellant’s wage-loss compensation based on its finding 

that he was capable of performing the constructed position of credit clerk. The facts and 

circumstances as referred to in the prior Board decision are incorporated herein by reference. 

On December 10, 1986 appellant, then a 33-year-old sandblaster, filed an occupational 

disease claim (Form CA-2) alleging bilateral hand contact dermatitis. He noted that on April 2, 

1985 he first obtained medical care for his condition, but did not realize until September 17, 

1986 that the condition was due to working with paint and paint thinner. He did not initially stop 

work. OWCP accepted the claim for contact dermatitis. 

The record contains a Notification of Personnel Action (Form SF-50) notifying appellant 

that his employment was terminated effective March 14, 1992 due to a reduction-in-force. 

Appellant thereafter received wage-loss compensation as of March 14, 1992. He was placed on 

the periodic rolls as of April 3, 1994. 

In a letter dated September 2, 1999, D.G., payroll coordinator, with the Berkeley County 

School District, verified that appellant was employed with the school district as a child care 

attendant. Appellant’s employment began on August 9, 1999 with a gross pay for the school 

year of 1999 to 2000 of $8,366.74. In a December 8, 2000 letter, J.F., principal, Goose Creek 

High School verified that appellant was employed as a classroom assistant at the school since 

August 1999. 

By decision dated November 22, 2002, OWCP reduced appellant’s wage-loss 

compensation effective November 3, 2002 based on its finding that his actual wages as a child 

care attendant of $160.94 per week fairly and reasonably represented his wage-earning capacity. 

It noted that because he had shown the ability to perform the duties of the position for 60 days or 

more, the position was considered suitable to his partially disabled condition. OWCP then 

applied the Shadrick formula to calculate appellant’s loss of wage-earning capacity.4

 This 

 3

 Docket No. 01-2002 (issued September 3, 2002). 

4 Albert C. Shadrick, 5 ECAB 376 (1953). 
3

calculation showed that, effective November 3, 2002, appellant had a loss of wage-earning 

capacity of 30 percent. The payment of wage-loss compensation every four weeks was 

$1,143.60. 

The record contains yearly reports from 2007 to 2011 by Dr. Pierre Jaffe, a treating 

Board-certified dermatologist. In the annual reports for this period, Dr. Jaffe noted that 

appellant’s dermatitis condition was under control. On February 8, 2007 he indicated that the 

dermatitis was controlled by the job change to teaching and current environment. Dr. Jaffe, in 

reports dated February 16, 2009, February 17, 2010, and February 18, 2011, noted that appellant 

also suffered from hyperhidrosis (excessive sweating), which was controlled by medication. 

In a January 12, 2012 report, Dr. Jaffe noted that appellant was seen for his yearly visit 

and that both appellant’s atopic dermatitis and hyperhidrosis were under control with medication. 

He completed a work capacity evaluation (Form OWCP-5c) on January 12, 2012 indicating that 

appellant was totally disabled for work and noted that he should avoid heat. 

Dr. Jaffe, in a June 8, 2012 report, reiterated findings from his January 12, 2012 report. 

He noted that appellant’s symptoms and medical condition were controlled by current treatment. 

Dr. Jaffe opined that appellant’s condition went back over 27 years and would persist 

indefinitely. 

A statement of accepted facts dated July 5, 2012 noted that appellant’s claim had been 

accepted for allergic contact dermatitis, however, appellant had nonwork-related conditions of 

degenerative disc disease, lumbar spinal stenosis, and lumbar spondylosis. Appellant underwent 

a minimally invasive lumbar decompression bilaterally at L5-S1 and L4-5 on August 2, 2010. 

On August 9, 2012 OWCP referred appellant for a second opinion evaluation with 

Dr. Elizabeth Sherertz, a Board-certified dermatologist, for an assessment of his employmentrelated condition. Dr. Sherertz diagnosed contact dermatitis and other eczema due to solvents, 

generalized hyperhidrosis, and right foot impetigo. She opined that appellant’s contact 

dermatitis had not resolved. Dr. Sherertz further opined that his sweating and itching was 

unlikely due to the accepted contact dermatitis, but were more likely attributable to 

environmental factors such as airborne irritants, heat, and humidity. 

In a February 6, 2014 report, Dr. Jaffe reported that appellant continued to suffer from his 

accepted chronic allergic dermatitis. Other diagnoses included hyperhidrosis, chronic exfoliative 

dermatitis, mild eczematization, and adjustment disorder with mixed emotions of depression and 

preoccupation with his health. Dr. Jaffe opined that appellant’s condition had changed as his 

condition was now only partly controlled by medication. He reported that appellant’s pruritus, 

continuous itching, and dermatitis had resulted in his skin thickening, hardening, and caused 

excoriations, as well as erythema. Dr. Jaffe further noted that appellant became depressed and 

anxious as the result of his chronic contact dermatitis. He noted that 50 percent of appellant’s 

body was involved. Next, Dr. Jaffe reported that the skin condition was aggravated by heat, 

moisture, humidity, airborne irritants, chemicals, working in wet and humid environments, and 

sweat, causing pain and discomfort. He concluded that appellant was disabled from working as 

the stress of holding a job “appear[ed] to flare his rash” and his excessive sweating required 

multiple changes of clothes during the day. Dr. Jaffe also reported that appellant had episodes of 
4

memory loss and headaches as well as periods of chronic neurodermatitis and tenseness. 

Appellant had related that his excessive sweating limited his ability to write, handle a steering 

wheel, and walk, due to weakness in his arms, feet, legs and hands. Dr. Jaffe opined that 

appellant’s excessive sweating and skin breakouts caused stress and impaired his ability to 

perform daily functions. 

In a letter dated May 5, 2014, appellant requested modification of the November 22, 2002 

loss of wage-earning capacity determination as his condition and disability had materially 

worsened. In support of his claim, appellant attached an April 30, 2009 letter to Goose Creek 

School in which he resigned his position as child care attendant. He noted that he had resigned 

from the position due to the impact his excessive sweating had on his life including an inability 

to handle a steering wheel while driving and skin breakouts which caused emotional stress. 

By decision dated October 10, 2014, OWCP denied appellant’s request for modification 

of the November 22, 2002 loss of wage-earning capacity determination. It found that his current 

skin condition had been aggravated by new work factors. OWCP also found that the medical 

evidence established that appellant was disabled due to intervening nonwork-related 

degenerative lumbar and knee conditions. 

Appellant requested an oral hearing before an OWCP hearing representative. 

By decision dated September 3, 2015, an OWCP hearing representative affirmed the 

October 10, 2014 decision denying modification of the November 22, 2002 loss of wage-earning 

capacity determination. He found that appellant’s change in his skin condition had been caused 

by the change in his child care attendant duties and was not a basis for modification of the loss of 

wage-earning capacity. 

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.5

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

remains undisturbed until properly modified.6

 OWCP’s procedure manual provides that, if a 

formal loss of wage-earning capacity decision has been issued, the rating should be left in place 

unless the claimant requests resumption of compensation for total wage loss.7

 In this instance 

the claims examiner will need to evaluate the request according to the customary criteria for 

modifying a formal loss of wage-earning capacity.8

 

 5 D.M., 59 ECAB 59 ECAB 164; Harley Sims, Jr., 56 ECAB 320 (2005). 

6 Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959). 

7

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

Decisions, Chapter 2.1501.2(b) (June 2013). See Mary E. Marshall, 56 ECAB 420 (2005).

8

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

Decisions, Chapter 2.1501.3 (June 2013). See Harley Sims, Jr., supra note 5.
5

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.9

 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.10 

The Board has held that a new injury does not constitute a material change in the nature 

and extent of the original injury-related condition such that a wage-earning capacity 

determination should be modified.11

ANALYSIS 

OWCP accepted that appellant sustained contact dermatitis as the result of working with 

paint and paint thinner in his job as a sandblaster. It paid him wage-loss compensation beginning 

March 14, 1992 due to the termination of his federal employment as the result of a reduction-inforce. By decision dated November 22, 2002, OWCP reduced appellant’s wage-loss 

compensation based on his actual wages as a child care attendant. Appellant requested 

modification of the November 22, 2002 loss of wage-earning capacity determination in a May 5, 

2014 letter. 

The Board finds appellant has not met his burden of proof to modify OWCP’s 

November 22, 2002 loss of wage-earning capacity determination. Appellant has not alleged or 

otherwise shown that the original loss of wage-earning capacity determination was erroneous. 

He worked in the child care attendant position for over three years before OWCP made its loss of 

wage-earning capacity decision. The loss of wage-earning capacity decision was properly based 

on his actual wages as a child care attendant working for a private employer.12 

Appellant also did not establish a material change in the nature and extent of his 

employment-related condition. In support of his request for modification, he submitted reports 

from Dr. Jaffe including several annual reports covering the period 2007 to 2014. Dr. Jaffe 

opined that appellant’s dermatitis was under control in his reports from 2007 to 2011 and in a 

June 8, 2012 report. He reported an additional condition of hyperhidrosis in his February 16, 

2009 report. It was not until completing a January 12, 2012 OWCP-5c form that Dr. Jaffe 

determined that appellant was totally disabled and should avoid heat. In his attached report, 

Dr. Jaffe noted the conditions of atopic dermatitis and hyperhidrosis were controlled with 

medication. In the February 6, 2014 report, he diagnosed chronic allergic dermatitis, 

hyperhidrosis, chronic exfoliative dermatitis, mild eczematization, and adjustment disorder with 

mixed emotions of depression and preoccupation with his health. Dr. Jaffe opined that 

 9 See D.M., supra note 5; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000); 

Ernest Donelson, Sr., 35 ECAB 503, 505 (1984). 

10 Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

11 M.E., Docket No. 07-2306 (issued March 24, 2008). 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.815.5(d) 

(June 2013). 
6

appellant’s condition had worsened as the condition was only partly controlled by medication 

and that appellant’s skin condition had been aggravated by heat, moisture, humidity, airborne 

irritants, chemicals, working in wet and humid environments, and sweat. He also opined that 

appellant was disabled from working as a result of his excessive sweating, rash flare ups, and 

stress. Lastly, Dr. Jaffe noted that as a result of the excessive sweating and skin breakouts 

appellant had become stressed and his ability to perform daily functions was impaired. 

The reports from Dr. Jaffe are insufficient to establish a material change in appellant’s 

accepted condition of contact dermatitis. Dr. Jaffe did not describe a change of the accepted 

condition, based upon objective medical findings and rationale, or explain how it had materially 

worsened causing appellant to become unable to work as a child care attendant such that the 

wage-earning capacity determination should be modified.13 Rather, he attributed a worsening of 

appellant’s condition to factors associated with his employment as a child care attendant and 

hyperhidrosis, a condition which arose subsequent to the accepted injury and was unrelated to his 

prior federal job. In addition, Dr. Jaffe suggests a possible new injury rather than a material 

change in the work-related condition that was sustained prior to the November 22, 2002 loss of 

wage-earning capacity determination. As noted above, the Board has held that a new injury does 

not constitute a material change in the nature and extent of the original injury-related condition 

such that a wage-earning capacity determination should be modified.14 Thus, these reports by 

Dr. Jaffe are of little probative value on the issue of whether appellant’s employment-related 

contact dermatitis had materially changed to support modification of the wage-earning capacity 

determination.15

The record also contains an August 20, 2012 report from Dr. Sherertz, a second opinion 

Board-certified dermatologist, who opined that appellant’s contact dermatitis had not resolved, 

but that his sweating and itching were attributable to environmental factors such as airborne 

irritants, heat, and humidity rather than to the accepted contact dermatitis. When OWCP referred 

appellant to Dr. Sherertz it was not for the purpose of modification of the loss of wage-earning 

capacity determination as the referral predated appellant’s claim for modification. Thus it is not 

germane to the issue before the Board.16

 13 Where residuals of an accepted employment-related condition prevent the employee from performing regular 

duties, physical ailments that preexisted the accepted condition must be taken into consideration. Physical ailments 

acquired subsequent to and unrelated to the accepted injury are excluded from any wage-earning determination. 

Lee A. Dent, 54 ECAB 704 (2003). 

14 M.E., supra note 10. 

15 See A.P., Docket No. 08-1822 (issued August 5, 2009) (rationalized medical opinion evidence is medical 

evidence based on a complete factual and medical background of reasonable medical certainty and supported by 

medical rationale explaining the opinion offered); see also Sue A. Sedgwick, 45 ECAB 211 (1993) (medical 

evidence must show a material change in the nature and extent of the employment-related condition).

16 Id. 
7

As the medical evidence submitted by appellant fails to adequately describe a material 

worsening of his accepted work-related contact dermatitis, the Board finds that it is insufficient 

to establish that his loss of wage-earning capacity determination should be modified.17

On appeal appellant contends that his accepted employment condition has worsened 

without any intervening cause and, thus, modification of the November 22, 2002 loss of wageearning capacity determination is warranted. As discussed above, the medical evidence of record 

does not establish that appellant’s accepted contact dermatitis had worsened such that he was 

disabled from performing the position of child care attendant. While medical reports from both 

Dr. Jaffe and Dr. Sherertz support that appellant continues to suffer from contact dermatitis, they 

do not establish that he was disabled from performing the position of child care attendant due to 

the accepted condition. 

Appellant may request modification of the 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 met his burden of proof to establish that 

modification of the November 22, 2002 loss of wage-earning capacity decision was warranted. 

 17 P.C., 58 ECAB 504 (2007). 
8

ORDER 

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

Compensation Programs dated September 3, 2015 is affirmed. 

Issued: August 24, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board