United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

ARCHITECT OF THE CAPITOL, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 17-0299 

Issued: April 5, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 23, 2016 appellant, through counsel, filed a timely appeal from an 

August 2, 2016 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 over the merits of this case. 

ISSUE 

The issue is whether OWCP met its burden of proof to modify a loss of wage-earning 

capacity determination and terminate appellant’s wage-loss compensation and medical benefits 

effective August 21, 2016 as his accepted lumbar injury had ceased without residuals. 

 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

FACTUAL HISTORY 

OWCP accepted that on March 16, 1993 appellant, then a 52-year-old plasterer, sustained 

a lumbar sprain and a temporary aggravation of preexisting lumbar stenosis when he slipped 

while ascending a ladder. He was followed in 1994 by Dr. Arthur Litofsky, an attending Boardcertified neurosurgeon, who diagnosed an L4-5 defect aggravated by the accepted incident. 

Following a period of work absence, appellant returned to work in the private sector as a 

dish washer through September 1996. He again stopped work, and received compensation for 

total disability. Appellant participated in vocational rehabilitation in 1997, with a vocational 

goal of Cashier 2 (U.S. Department of Labor, Dictionary of Occupational Titles # 211.462-010). 

He did not obtain employment. Appellant remained off work. 

By notice dated March 7, 1997 and finalized June 19, 1997, OWCP reduced appellant’s 

compensation effective June 22, 1997 under sections 8106 and 8115(a)3

 of FECA based on his 

capacity to earn wages in the selected position of cashier. Appellant remained off work. 

From September 2008 through September 25, 2013, appellant was examined annually by 

Dr. Joseph P. Cincinnati, an attending osteopathic physician Board-certified in orthopedic 

surgery. Dr. Cincinnati diagnosed lumbar degenerative disc disease, diffuse intravertebral 

skeletal hyperstosis syndrome, and a grade 1 retrolisthesis L4 on L5. He held appellant off work. 

On April 28, 2016 OWCP obtained a second opinion from Dr. Robert A. Smith, a Boardcertified orthopedic surgeon. Dr. Smith reviewed the medical record and a statement of accepted 

facts, (SOAF) noting that appellant had not received spinal injections or surgery, but participated 

briefly in physical therapy. On examination, he observed no spasm, atrophy, trigger points, or 

deformity in the paraspinal musculature. Dr. Smith noted a “satisfactory and functional” range 

of spinal motion, with forward flexion to 50 degrees, extension to 20 degrees, and lateral bending 

to 30 degrees bilaterally. He diagnosed a resolved lumbar strain by history, and idiopathic 

degenerative disc disease unrelated to the accepted injury. Dr. Smith found appellant at 

maximum medical improvement, with no further treatment needed. He noted that appellant 

could return to regular-duty work, although his “advanced age and arthritis probably would limit 

his return to heavy[-]duty work.” In a June 12, 2016 addendum, Dr. Smith reiterated that the 

March 16, 1993 lumbar sprain had resolved without residuals. He noted on June 16, 2016 that 

the accepted temporary aggravation of lumbar stenosis had also resolved completely, and that 

appellant could return to “full-time regular[-]duty work.” 

By notice dated June 28, 2016, OWCP advised appellant that it proposed to terminate his 

medical benefits and wage-loss compensation, based on Dr. Smith’s opinion that the accepted 

lumbar strain and temporary aggravation of lumbar stenosis had resolved without residuals. It 

afforded appellant 30 days to submit additional evidence and argument. Appellant did not 

respond. 

By decision dated August 2, 2016, OWCP terminated appellant’s medical and wage-loss 

compensation benefits effective August 21, 2016, finding that the accepted lumbar strain and 

temporary aggravation of lumbar stenosis had ceased without residuals. It accorded the weight 

 3

 5 U.S.C. §§ 8106 and 8115(a). 
3

of the medical evidence to Dr. Smith, who based his opinion on a statement of accepted facts, the 

complete medical record, and a thorough clinical examination. OWCP further found that 

Dr. Smith’s opinion was also sufficient to meet OWCP’s burden of proof in modifying the 

June 19, 1997 wage-earning capacity determination, based on a “material change in the medical 

condition.” 

LEGAL PRECEDENT 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.4 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.5 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.6

 

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.7

 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.8 

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. Section 8115(a) of FECA provides that wage-earning capacity is best measured by the 

actual wages received by an employee if the earnings fairly and reasonably represent his or her 

wage-earning capacity. If the actual earnings do not fairly and reasonably represent wageearning capacity or if the employee has no actual earnings his or her wage-earning capacity is 

determined with due regard to the nature of the injury, the degree of physical impairment, his or 

her usual employment, his or her age, his or her qualifications for other employment, the 

availability of suitable employment and other factors and circumstances which may affect his or 

her wage-earning capacity in his or her disabled condition.9

 Compensation payments are based 

on the wage-earning capacity determination and it remains undisturbed until properly modified.10 

It is well established that either a claimant or OWCP may seek to modify a formal loss of 

wage-earning capacity determination. Once the wage-earning capacity of an injured employee is 

determined, a modification of such determination is not warranted unless there is a material 

 4 Bernadine P. Taylor, 54 ECAB 342 (2003). 

5 Id.

6 J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 

7 See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

8 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 

9

 5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; S.R., Docket No. 14-0733 (issued August 18, 2015); C.K., Docket No. 

14-0341 (issued April 24, 2014). 

10 Katherine T. Kreger, 55 ECAB 633 (2004). 
4

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.11 

The burden of proof is on the party attempting to show a modification of the wage-earning 

capacity determination.12 

ANALYSIS 

OWCP accepted that on March 16, 1993, appellant sustained a lumbar strain and a 

temporary aggravation of preexisting lumbar stenosis. On June 19, 1997 it reduced his 

entitlement to wage-loss compensation based upon a determination that the selected position of 

cashier fairly and reasonably represented his wage-earning capacity and adjusted his 

compensation accordingly. 

In a decision dated August 2, 2016, OWCP terminated appellant’s entitlement to medical 

and wage-loss compensation benefits finding that the medical evidence of record established that 

the accepted lumbar injury had ceased without residuals. Accordingly, it has the burden of proof 

to establish that the wage-earning capacity determination should be modified.13 

In support of his entitlement to ongoing wage-loss compensation, appellant had provided 

annual reports from Dr. Cincinnati, an attending osteopathic physician Board-certified in 

orthopedic surgery. Dr. Cincinnati provided annual reports from September 2008 through 

September 2013 diagnosing lumbar degenerative disc disease, an L4 on L5 retrolisthesis, and 

diffuse intravertebral skeletal hyperstosis. While he held appellant off work, he did not opine 

that appellant’s ongoing lumbar condition continued to be causally related to the accepted 

March 16, 1993 injury. 

On April 28, 2016 OWCP obtained a second opinion from Dr. Smith, a Board-certified 

orthopedic surgeon. The Board notes that OWCP may refer a claimant for a second opinion at 

any time.14 Dr. Smith provided an accurate history of injury and treatment, and noted reviewing 

the SOAF and the medical record. He determined that there was no medical evidence to support 

that the accepted lumbar injury was still present, attributing his ongoing presentation to 

idiopathic arthritis. Dr. Smith found appellant able to perform full-time work. 

The Board finds that, based on the opinion of Dr. Smith, appellant’s accepted lumbar 

injury resolved without residuals. Dr. Smith provided a thorough factual and medical history and 

accurately summarized the relevant medical evidence. He conducted a physical examination and 

provided medical rationale explaining that appellant’s ongoing lumbar condition was due to 

nonoccupational causes. Thus, OWCP met its burden of proof to modify the June 19, 1997 

 11 Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification 

of Loss of Wage Earning Capacity Decisions, Chapter 2.1501.2.b (June 2013). 

12 Tamra McCauley, 51 ECAB 375 (2000). 

13 Id. 

14 Federal (FECA) Procedure Manual, supra note 11 at Disability Management, Chapter 2.600.3(b)(1) 

(June 2011). 
5

wage-earning capacity determination and terminate appellant’s medical and wage-loss 

compensation benefits on August 25, 2014.15 

On appeal, counsel asserts that OWCP’s August 2, 2016 decision is contrary to fact and 

law. As set forth above, OWCP met its burden of proof to modify the standing loss of wageearning capacity determination, and to terminate appellant’s compensation benefits, based on 

Dr. Smith’s opinion. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to modify a loss of wage-earning 

capacity determination and terminate appellant’s wage-loss and medical compensation benefits 

effective August 21, 2016 as his accepted lumbar injury had ceased without residuals. 

ORDER 

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

Compensation Programs dated August 2, 2016 is affirmed. 

Issued: April 5, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 S.R., supra note 9; C.K., supra note 9.