United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, VEHICLE MAIL 

FACILITY, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 15-244 

Issued: May 8, 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 November 12, 2014 appellant filed a timely appeal from an October 15, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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 has met his burden of proof to modify OWCP’s loss of 

wage-earning capacity (LWEC) determination. 

FACTUAL HISTORY 

This case has previously been before the Board. OWCP accepted that appellant, a mail 

truck operator, sustained paranoia and a delusional disorder causally related to factors of his 

federal employment. It paid temporary total disability compensation for intermittent periods 

 1

 5 U.S.C. § 8101 et seq.
2

from February 18 to October 1, 1993 and for the period beginning November 26, 1994. OWCP 

referred appellant to vocational rehabilitation. Appellant enrolled in paralegal training in 

April 1996 and completed his training in October 1997. OWCP found on November 18, 1998 

that he could perform the duties of a paralegal, resulting in 42 percent LWEC. It reduced 

appellant’s compensation effective December 8, 1998. By an October 12, 1999 decision, an 

OWCP hearing representative affirmed the November 18, 1998 decision reducing appellant’s 

wage-loss compensation based on his capacity to earn wages in a selected paralegal position. 

The Board, on November 7, 2001, affirmed the LWEC decision finding that OWCP 

appropriately considered the proper factors in reducing his monetary compensation, including the 

availability of paralegal positions and his vocational aptitudes and physical limitations.2 The 

facts of the case, as set forth in the Board’s prior decision, are hereby incorporated by reference. 

The relevant facts are set forth below. 

In his August 14, 2014 letter requesting modification of the November 18, 1998 LWEC 

determination, appellant contended that he was unable to obtain employment as a paralegal from 

1997 to the present due to his employment record at the employing establishment and the 

medication he had been taking since February 16, 1993 which kept him sedated. 

In an August 20, 2014 letter, OWCP advised appellant of the criteria necessary for 

modifying a wage-earning capacity decision. It requested that he submit evidence indicating 

why the requested modification was warranted based on the given criteria. 

In letters dated August 25 and September 6 and 18, 2014, appellant alleged that OWCP’s 

LWEC determination was made in error because OWCP knew that, under the circumstances 

related to his prior employing establishment, medication, and statements, he would not have been 

effective as a paralegal. He further alleged that his emotional condition had worsened and he 

had to take stronger medication to accommodate his condition. Appellant stated that medical 

reports of record established that he was totally disabled for work. 

In an August 26, 2014 medical report, Dr. David A. Frankel, a Board-certified 

psychiatrist, reported that appellant had informed him that, although he had been retrained as a 

paralegal, he was unable to perform this job. Appellant stated that his psychiatric problems 

interfered with his thinking and the side effects of his medications made it difficult to sufficiently 

concentrate. 

By decision dated October 15, 2014, OWCP denied modification of the November 18, 

1998 LWEC determination. It found that the evidence submitted was not sufficient to establish 

modification of its prior LWEC determination. 

 2

 Docket No. 00-967 (issued November 7, 2001). 
3

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.3

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.4

 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.5

ANALYSIS 

In requesting modification of the November 18, 1998 LWEC determination, appellant 

has alleged that the original determination was, in fact, erroneous. He contended that OWCP 

knew that, under circumstances related to his prior employing establishment, medication, and 

statements made, he would not have been effective as a paralegal. Appellant has presented no 

evidence to support his general allegation of error. There is also no evidence that he was unable 

to perform the duties of the selected position on the date the LWEC decision was issued. The 

Board has previously affirmed the reduction of appellant’s wage-loss compensation based on his 

capacity to earn wages in the selected paralegal position. Appellant has not demonstrated that 

the original determination was erroneous or that he was retrained or otherwise vocationally 

rehabilitated since the November 18, 1998 decision. The only remaining basis for modification 

is whether the medical evidence establishes a material change in the nature and extent of the 

injury-related conditions. 

Appellant asserted that he was unable to obtain employment as a paralegal from 1997 to 

the present due to his medical condition and resultant total disability. He stated that his 

emotional condition had worsened and the medication he had been taking since February 16, 

1993 kept him sedated. Dr. Frankel noted in his August 26, 2014 report that appellant had 

informed him that, although he had been retrained as a paralegal, he was unable to perform this 

job because his psychiatric problems interfered with his thinking and side effects of his medicine 

made it difficult to sufficiently concentrate. This report does not establish a material change in 

appellant’s injury-related emotional conditions such that he would be unable to perform the 

constructed position. Dr. Frankel did not provide a firm medical diagnosis or provide his own 

opinion that appellant was totally disabled; rather, he relied on appellant’s own representation of 

disability. The Board will not require OWCP to pay compensation for disability in the absence 

 3 See Sharon C. Clement, 55 ECAB 552 (2004). 

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

5 Id. 
4

of any medical evidence directly addressing disability. To do so would essentially allow 

employees to self-certify their disability and entitlement to compensation.6

 

The evidence does not establish that appellant’s accepted work-related medical 

conditions have materially changed, that the original wage-earning capacity determination was in 

error or that he had been retrained or otherwise vocationally rehabilitated. For these reasons, 

appellant has not established that the November 18, 1998 wage-earning capacity determination 

should be modified. 

Appellant may request modification of the LWEC 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 modify OWCP’s 

LWEC determination. 

ORDER 

IT IS HEREBY ORDERED THAT the October 15, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 8, 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 

 6 Selden H. Swartz, 55 ECAB 272, 278 (2004).