United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 16-1195 

Issued: January 4, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 17, 2016 appellant, through counsel, filed a timely appeal from an April 25, 

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 properly denied modification of a February 28, 2006 loss of 

wage-earning capacity determination. 

 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 

This case has previously been before the Board.3 The facts and circumstances as 

presented in the prior appeal are incorporated herein by reference. The relevant facts are as 

follows. 

Appellant, then a 30-year-old mail carrier, filed a traumatic injury claim (Form CA-1) 

alleging that he twisted his left knee in the performance of duty on October 4, 1993. OWCP 

accepted his claim for left knee medial meniscus tear and a left knee femoral condyle, and patella 

fracture with a loose body. Appellant received supplemental and periodic rolls compensation 

benefits. 

Appellant accepted a job offer as a modified clerk and began work on July 5, 1997. By 

decision dated September 5, 1997, OWCP adjusted his compensation to reflect his wage-earning 

capacity in the modified clerk position based on actual weekly wages of $428.68. On 

November 12, 1997 it granted a schedule award for 15 percent loss of use of the left leg. 

On April 9, 2002 appellant filed a claim for a recurrence of disability (Form CA-2a), 

commencing April 10, 2000, due to the October 4, 1993 employment injury. He explained that 

he was no longer working for the employing establishment because the modified clerk position 

ended on April 1, 1998. Appellant asserted that he was not rehired and when the job became 

available again in March 2001, he was unable to accept the position because he had just 

undergone surgery and moved from Florida. According to appellant, he was currently 

participating in a federal work-study program with the Department of Veterans Affairs. By 

decision dated June 13, 2002, OWCP denied his claim for recurrence of disability commencing 

in April 2000. Appellant filed a request for reconsideration. In a decision dated September 17, 

2003, OWCP found his reconsideration request was untimely filed and failed to demonstrate 

clear evidence of error. 

Appellant appealed to the Board on November 19, 2003. On June 3, 2004 the Board 

affirmed the September 17, 2003 OWCP decision. The Board found that the evidence from an 

attending Board-certified orthopedic surgeon, Dr. Frank Phillips, was not relevant to demonstrate 

clear evidence of error.4

Appellant underwent arthroscopic left knee surgery on April 22, 2003. The record 

indicates that he began receiving compensation for wage loss on the periodic compensation rolls 

as of April 20, 2003. Appellant continued to receive wage-loss compensation. 

In a report dated September 3, 2004, Dr. Phillips indicated that appellant had reported 

bilateral knee pain, but his left knee showed improvement from preoperative status. He reported 

that it was unlikely appellant would be able to return to work requiring anything more than 

sedentary duties. 

 3

 Docket No. 04-0327 (issued June 3, 2004). 

4 Id. 
3

OWCP referred appellant for vocational rehabilitation services. In a report dated 

May 25, 2005, a rehabilitation counselor indicated that the plan was for appellant to work as an 

employment interviewer (Department of Labor, Dictionary of Occupational Titles No. 166.267-

010) or mortgage loan underwriter (DOT No. 186.267-026). A job classification for the 

employment interviewer position indicated it was a sedentary position with occasional lifting of 

10 pounds. On May 31, 2005 the rehabilitation counselor indicated that the position was 

available in appellant’s area with entry-level wages of $583.20 per week. 

In a letter of proposed reduction dated January 24, 2006, OWCP advised appellant that it 

found he was capable of performing the duties of the selected position of employment 

interviewer. It found that he was capable of earning $583.20 per week in the selected position, 

which was greater than or equal to the current pay of his date-of injury position. 

By decision dated February 28, 2006, OWCP reduced appellant’s compensation to zero. 

It found he had no loss of wage-earning capacity based on his ability to work as an employment 

interviewer. OWCP indicated that the termination of wage-loss compensation benefits would 

take effect on March 19, 2006. 

Appellant underwent left knee arthroscopic surgery on February 27, 2012. He filed a 

claim for compensation (Form CA-7) commencing February 27, 2012. OWCP began paying 

compensation for wage loss as of February 27, 2012. 

In a report dated April 19, 2012, Dr. Phillips reported that the left knee surgery appeared 

to be successful although appellant was still using a walker. He indicated that appellant could do 

sedentary work with no squatting, kneeling, or bending, and he should be allowed to stand 15 

minutes every 2 hours. In a report dated October 3, 2012, Dr. Phillips noted that he had been 

asked to comment on whether appellant could continue to perform the functional requirements of 

an employment interviewer. He reported that he had filled out a work tolerance form.5

 

OWCP prepared a statement of accepted facts (SOAF) dated December 20, 2012 and 

referred appellant for a second opinion examination by Dr. William L. Lehman, Jr., a Boardcertified orthopedic surgeon. Dr. Lehman was asked whether appellant could perform the dateof-injury position, and if not, whether he could perform the functional requirements of the 

employment interviewer position. 

In a report dated January 14, 2013, Dr. Lehman provided a history and results on 

examination. He opined that appellant could not work as a mail carrier, but it appeared the 

position of employment interviewer “would be possible.” Dr. Lehman noted “the functional 

requirements of this position have not specifically been provided for me,” but appellant had 

reported performing similar activity in 1999 and 2000.6

 He completed a work capacity 

 5

 It is not clear from the record of evidence what work tolerance form Dr. Phillips was referring to in this regard. 

6

 Dr. Lehman reported the employment interviewer position “falls within the South Carolina Employment 

Security Commission,” without further explanation. The record contains a copy of the DOT No. 166.267-010 job 

classification for employment interviewer, but it is unclear whether Dr. Lehman reviewed the job classification. 
4

evaluation form report with work restrictions. Dr. Lehman indicated that appellant could lift 10 

pounds for one hour. 

By decision dated August 19, 2013, OWCP terminated appellant’s wage-loss 

compensation, effective August 25, 2013. It found that he was capable of “performing the 

position for which [he was] previously rated in.” 

In a letter dated October 20, 2014, OWCP advised appellant that it had “reinstated” the 

February 28, 2006 loss of wage-earning capacity determination. Appellant was advised to 

pursue appeal rights attached to that decision. 

Appellant, through counsel, requested an oral hearing before an OWCP hearing 

representative, which was held on June 12, 2015. By decision dated August 11, 2015, the 

hearing representative affirmed the October 20, 2014 decision. He found that appellant had been 

off work only from February 27, 2012 for “a brief, closed period following the surgery” and 

therefore the February 28, 2006 loss of wage-earning capacity determination did not need to be 

modified and remained in effect. OWCP found that appellant had not established that 

modification of the 2006 loss of wage-earning capacity determination. 

By letter dated January 26, 2016 and received by OWCP on February 3, 2016, appellant, 

through counsel, requested reconsideration. He submitted additional medical evidence regarding 

his continuing left knee condition. 

In a decision dated April 25, 2016, OWCP reviewed the merits of appellant’s claim and 

denied modification of the August 11, 2015 decision. It found that the evidence failed to 

establish a worsening of his condition such that he would be totally disabled from performing the 

duties of the constructed employment interviewer position. 

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 and it 

remains undisturbed until properly modified.7 

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. In this 

instance, OWCP will need to evaluate the request according to the customary criteria for 

modifying a formal loss of wage-earning capacity.8 

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 

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

8 Katherine T. Kreger, 55 ECAB 633 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Modifications 

of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.4 (June 2013). 
5

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 OWCP may accept a limited period of disability without 

modifying a standing wage-earning capacity determination.11 This occurs when there is a 

demonstrated temporary worsening of a medical condition of insufficient duration and severity to 

warrant modification of a wage-earning capacity determination.12 This narrow exception is only 

applicable for brief periods of medical disability.13 OWCP procedures provide, “If the claimant 

is off work for a brief period due to his/her temporary inability to perform the duties of the rated 

position, this period of medical disability can be paid without modification of the loss of wageearning capacity determination, e.g., a brief recovery period after surgery or an injection with a 

subsequent day of disability.”14

ANALYSIS 

OWCP issued a loss of wage-earning capacity determination in this claim on 

February 28, 2006. It found the selected position of employment interviewer represented 

appellant’s wage-earning capacity. On February 27, 2012 appellant underwent left knee 

arthroscopic surgery, and OWCP began paying compensation for total disability. OWCP 

continued to pay compensation for total disability through August 24, 2013. 

OWCP determined that appellant’s loss of wage-earning capacity determination need not 

be modified as he was off work for a limited period of time and the medical evidence showed he 

could continue to perform the selected position of employment interviewer. The Board finds that 

the evidence of record, however, does not establish that this was a “brief period” of disability. 

As noted, appellant received wage-loss compensation for approximately 18 months from 

February 27, 2012. 

OWCP did not properly develop the medical evidence on the issue. As noted above, if 

the medical evidence shows a temporary worsening of a condition, and a resultant inability to 

perform the duties of the constructed position, OWCP may deny modification of the loss of 

wage-earning capacity determination. The evidence in this case, however, does not clearly 

address whether there was a temporary worsening after the February 27, 2012 surgery, or 

whether there was a material change in the nature and extent of the employment-related 

condition. 

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

10 Id.

11 See Katherine T. Kreger, supra note 8.

12 See supra note 7. 

13 K.H., Docket No. 08-2392 (issued April 21, 2009). 

14 Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1501.10 (June 2013). See also Calvin G. Wilson,

Docket No. 97-1029 (issued March 8, 1999) wherein the claimant’s brief period of total disability was noted to 

encompass less than three weeks. 
6

Appellant underwent left knee surgery on February 27, 2012 and there was no indication 

at that time how long disability would last. The attending physician, Dr. Phillips reported on 

April 19, 2012 that appellant was using a walker but could do some sedentary work. However, 

he did not specifically address the constructed position. In an October 3, 2012 report, 

Dr. Phillips indicated that he had been asked to comment on appellant’s ability to perform the 

employment interviewer position. The record does not contain an opinion from Dr. Phillips that 

specifically addressed appellant’s ability to work as an employment interviewer after the 

February 27, 2012 surgery. 

OWCP sent appellant for a second opinion examination with Dr. Lehman. One of the 

issues presented to Dr. Lehman was whether appellant could perform the duties of an 

employment interviewer. In his January 24, 2013 report, Dr. Lehman noted that he was not 

provided with a job description that included the functional requirements of the employment 

interviewer position. He speculated the position “would be possible,” but his report is of 

diminished probative value.15 In view of Dr. Lehman’s assertion that appellant did not have the 

functional requirements of the position, OWCP should have requested that he review the 

available evidence and provide a clarifying opinion. The Board finds Dr. Lehman failed to 

provide a rationalized medical opinion, based on a complete background, that resolves the 

medical issues regarding modification of a loss of wage-earning capacity determination. 

As OWCP had further developed the medical evidence, they should have properly 

resolved the issues with respect to the wage-earning capacity determination. When it refers a 

claimant for a second opinion evaluation and the report does not adequately address the relevant 

issues, OWCP should secure an appropriate report on the relevant issues.16 OWCP requested 

that Dr. Lehman provide an opinion as to whether appellant could work as an employment 

interviewer, but his January 24, 2013 report did not resolve the issue presented. 

The Board finds that OWCP did not properly deny modification of the loss of wageearning capacity determination in this case. The case will be remanded to OWCP for further 

development. On return of the case record, OWCP should properly prepare a SOAF that 

includes a detailed description of the employment interviewer position. It should secure a 

rationalized medical opinion as to whether there was a temporary worsening after the 

February 27, 2012 surgery, or whether there was a material change in appellant’s employmentrelated condition that prevented her from performing the employment interviewer position. 

After such further development as is deemed necessary, OWCP shall issue a de novo decision on 

the issue of modification of the loss of wage-earning capacity determination. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP for 

additional development. 

 15 Medical opinions that are speculative and not supported by medical rationale are generally entitled to little 

probative value. Carolyn F. Allen, 47 ECAB 240 (1995). 

16 See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32 

ECAB 863 (1981). 
7

ORDER 

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

Compensation Programs dated April 25, 2016 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: January 4, 2017 

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