United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Louisville, KY, Employer 

__________________________________________ 

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Docket No. 16-0665 

Issued: June 15, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 22, 2016 appellant filed a timely appeal of a February 1, 2016 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant met her burden of proof to modify the December 20, 2010 

wage-earning capacity decision. 

FACTUAL HISTORY 

This case has previously been before the Board on appeal. On March 28, 2000 appellant, 

then a 43-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that she injured her 

left leg lifting heavy bags and experienced sciatica in the performance of duty. On July 18, 2000 

 1

 5 U.S.C. § 8101 et seq.
2

she underwent a right L5-S1 discectomy during which a small nick was seen at the shoulder 

junction of the S1 nerve root. OWCP accepted appellant’s claim for herniated lumbar disc on 

January 9, 2004 and placed her on the periodic rolls on February 16, 2005. 

In an effort to determine appellant’s work capacity, OWCP referred appellant for a 

second opinion evaluation. In a report dated April 29, 2010, Dr. Larry M. Parker, a Boardcertified orthopedic surgeon, provided a history of injury and findings on physical examination. 

He noted that appellant had a slightly positive straight leg raising on the right, with slight 

diminution of the Achilles reflex on the right side. Dr. Parker reviewed a May 17, 2008 

magnetic resonance imaging (MRI) scan and concluded that she had a recurrence of disc 

herniation with objective findings to support lumbar radiculitis in the right lower extremity with 

an L5 radicular pattern in the right lower extremity. He noted that appellant could work a 

sedentary or light position. Dr. Parker completed a work capacity evaluation on May 11, 2010 

and found that she could work eight hours a day with restrictions, and she could walk and stand 

for 4 to 8 hours a day with 5- to 10-minute breaks every hour. Dr. Parker opined that she could 

lift up to 20 pounds. 

OWCP referred appellant for vocational rehabilitation services on May 13, 2010. The 

vocational rehabilitation counselor conducted a labor market survey based on appellant’s 

transferable skills and considered entry level positions within her light-duty physical 

requirements of lifting up to 20 pounds and the need to change positions for 5 to 10 minutes each 

hour. She identified the positions of general office clerk, cashier II and outside delivery. The 

vocational rehabilitation counselor provided labor market survey information to support her 

finding that the position of cashier II was reasonably available. There were 11,380 cashier 

positions available. She provided appellant with 20 job openings as a cashier which did not 

require any specific education or vocational preparation. 

In a letter dated August 17, 2010, OWCP informed appellant that the positions of cashier, 

Department of Labor, Dictionary of Occupational Titles (DOT) No. 211.462-10, and general 

office clerk, DOT No. 209.562-10, were within her physical restrictions. It stated that appellant 

would receive 90 days of assistance to find employment. 

The vocational rehabilitation counselor determined that the position of cashier II, DOT 

No. 211.462-10, was within appellant’s work restrictions and vocational ability. This was 

defined as a light position requiring lifting, carrying, pushing, and pulling up to 20 pounds 

occasionally, and up to 10 pounds frequently. The position required walking and standing 

frequently as well as pushing or pulling. On November 8, 2010 the rehabilitation specialist 

reported that the position of cashier II was reasonably available to appellant with an expected 

entry level wage of $7.25 per hour. The position description required up to 30 days of specific 

vocational preparation or level 2 and the general educational requirements were reasoning level 

3, mathematics level 2 and language level 2. 

On November 16, 2010 OWCP proposed to reduce appellant’s compensation benefits 

based on her capacity to earn wages as a cashier II. Appellant, through counsel, disagreed on 

November 24, 2010 as the job description was not in keeping with her restrictions. 
3

By decision dated December 20, 2010, OWCP determined that the position of cashier II 

represented appellant’s wage-earning capacity and reduced her compensation effective that date. 

Appellant, through counsel, requested an oral hearing. 

By decision dated July 29, 2011, the OWCP hearing representative affirmed OWCP’s 

December 20, 2010 decision finding that the cashier II position properly reflected appellant’s 

wage-earning capacity and was within her physical abilities. 

Appellant requested reconsideration and offered a legal argument based on the Board’s 

decision in M.V.2 OWCP declined to reopen appellant’s claim on October 12, 2011. 

Counsel appealed to the Board and in an October 2, 2012 decision, the Board found that 

the position of cashier II represented appellant’s wage-earning capacity.3 The Board further 

found that appellant had submitted insufficient evidence to warrant modification of the wageearning capacity decision as the findings of M.V. were not applicable to her case. 

While the case was pending with Board, OWCP had referred appellant for a second 

opinion examination on May 2, 2012 with Dr. David A. West, a Board-certified orthopedic 

surgeon. It requested that Dr. West address two questions: whether appellant’s accepted workrelated condition had resolved and whether appellant could perform her date-of-injury position. 

OWCP provided Dr. West with appellant’s date-of-injury position description which reflected 

the requirement of standing up to eight hours a day and generally standing three to five hours a 

day and walking from four to eight hours a day. 

In a report dated May 17, 2012, Dr. West examined appellant and found that she walked 

in an upright position with no assistive device. He found negative straight leg raising and good 

strength of the quadriceps, hamstrings, dorsiflexors, and plantar flexors. Dr. West noted that 

appellant had deep tendon reflexes at two of four at her Achilles and patella. He reported that 

appellant was able to heel and toe walk with difficulty. Dr. West noted that appellant had a 

radicular pattern in the right lower extremity and that her magnetic resonance imaging (MRI) 

scan demonstrated a recurrent disc herniation. He opined that appellant could not return to her 

date-of-injury position due to the job requirements that she stand or walk for four to eight hours a 

day. Dr. West noted that appellant could not kneel, bend, squat or climb. 

Following the Board’s October 2, 2012 decision, counsel requested reconsideration on 

October 9, 2012 and again cited M.V., as well as the second opinion report of Dr. West. OWCP 

acknowledged this request on December 16, 2013. 

By decision dated January 27, 2014, OWCP denied modification of appellant’s wageearning capacity determination. It found that appellant had submitted no medical evidence to 

establish a material change in the nature and extent of the injury-related condition. OWCP noted 

that Dr. West had not addressed appellant’s ability to perform the selected position. It further 

 2

 Docket No. 10-1642 (June 15, 2011) (finding that as the vocational rehabilitation counselor trained appellant as 

an entry-level budget analyst the record should have demonstrated how many of the positions available were entry 

level and therefore suitable to the claimant’s vocational training). 

3

 Docket No. 12-228 (issued October 2, 2012). 
4

noted that the Board had previously ruled on the reasonable availability of the cashier II position 

in this case and found that M.V. was not applicable. Counsel appealed to the Board. The Board 

affirmed the January 27, 2014 decision that there was no medical evidence of a change in the 

nature and extent of appellant’s injury-related condition warranting modification of her wageearning capacity determination.4

Following the Board’s September 4, 2014 decision, appellant requested reconsideration 

on February 9, 2015. She submitted an MRI scan report dated March 11, 2014 from Dr. Barry 

Allen, a Board-certified radiologist. Dr. Allen diagnosed severe degenerative disc disease at 

multiple levels, especially L5-S1, as well as spinal stenosis at L5-S1 and bilateral foraminal 

stenosis at L5-S1 and L4-5. He also found hypolordosis of the lumbar spine. Appellant alleged 

that this report as well as the 2008 MRI scan demonstrated a material change in the nature and 

extent of her injury-related condition such that her wage-earning capacity decision should be 

modified. 

In a report dated January 16, 2015, Dr. David H. McCord, a Board-certified orthopedic 

surgeon, reviewed appellant’s MRI scan and diagnosed degenerative disc historically related to 

her injury. He opined that there was no change in her condition and no new medical evidence. 

By decision dated March 24, 2015, OWCP reviewed the merits of appellant’s claim and 

denied modification of her wage-earning capacity decision. It found that Dr. McCord did not 

support appellant’s claim for modification of her wage-earning capacity decision as he found that 

her injury-related condition had not changed. 

Appellant requested reconsideration on June 12, 2015. She alleged that Dr. McCord was 

an OWCP doctor, that he attempted to persuade her to undergo surgery, and that he was a 

“disgrace to his profession.” Appellant submitted an internet article alleging that Dr. McCord 

performed unnecessary surgeries and had lost hospital privileges due to this practice. 

By decision dated June 18, 2015, OWCP declined to reopen appellant’s claim for review 

on the merits as the evidence submitted was irrelevant to the issue for which her claim had been 

denied. 

Appellant again requested reconsideration on September 14 and November 13, 2015. 

She submitted additional medical evidence in support of her request. In reports dated July 10 

and 14, 2015, Dr. James Fiechtl, a physician specializing in emergency medicine, examined 

appellant due to worsening back pain. He noted that appellant was exiting her vehicle when she 

felt that her back and left leg “went out.” Appellant reported lateral left lower leg and toe 

numbness. Dr. Fiechtl found symmetric reflexes at patellar Achilles with loss of muscle strength 

on the left. He noted that despite appellant’s description of paresthesia in the left lateral lower 

leg, she responded to gross touch. Dr. Fiechtl diagnosed degenerative disc changes in the lumbar 

spine, disc herniation at L4-5 and lumbar radiculopathy. He opined that appellant’s current 

condition was not due to her accepted employment injuries. 

 4

 Docket No. 14-0926 (issued September 4, 2014). 
5

Dr. Michael J. McNamara, a Board-certified orthopedic surgeon, examined appellant on 

August 7, 2015 due to a new injury on July 3, 2015 which occurred while she was getting out of 

her car. He found normal muscle strength in all motor groups, no focal weakness, and a positive 

sciatic nerve root tension sign on the left. Dr. McNamara found decreased range of motion, but 

no muscle spasm. He diagnosed disc herniation, degenerative disc disease, L4-5 disc protrusion, 

prior decompression at L5-S1. In a separate August 7, 2015 report, Dr. McNamara opined that 

appellant’s disc herniation at L4-5 was not due to her accepted employment injury. He noted 

that there was an objective change in appellant’s condition, but that this change was not related 

to her L5-S1 condition. 

By decision dated February 1, 2016, OWCP reviewed the merits of appellant’s claim and 

denied modification of her wage-earning capacity decision. It reviewed the medical evidence 

and found that Dr. Fiechtl had not attributed her worsening back pain to her accepted 

employment injuries. OWCP also found that Dr. McNamara had not attributed her current 

condition to her employment injuries. 

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 for loss of wage-earning capacity is based upon loss of the capacity to 

earn and not on actual wages lost.6 Compensation payments are based on the wage-earning 

capacity determination, which remains undisturbed until properly modified.7

 

Modification of a standing wage-earning capacity 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 

error.8

 OWCP’s procedures 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. 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.9

 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.10 

 5

 5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971) 

(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence 

of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity). 

6 K.R., id.; Roy Matthew Lyon, 27 ECAB 186, 190 (1975); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984). 

7 See Sharon C. Clement, 55 ECAB 552, 557 (2004). 

8 Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965). 

9

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

2.1501 (June 2013). 

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

ANALYSIS 

The Board finds that appellant has not submitted sufficient medical opinion evidence to 

establish a change in the nature and extent of her injury-related condition such that her 

December 20, 2010 wage-earning capacity decision should be modified. 

The Board has previously determined that appellant’s original wage-earning capacity 

decision was proper. Appellant has not submitted any evidence or argument regarding an error 

in the original determination of her wage-earning capacity. Further, there is no argument that 

appellant has been otherwise vocationally rehabilitated such that that the wage-earning decision 

is no longer appropriate. Instead, appellant has submitted additional medical evidence in an 

attempt to establish a change in the nature and extent of her injury-related condition such that her 

wage-earning capacity decision should be modified. 

Appellant has submitted medical evidence from Drs. McCord, Fiechtl, and McNamara 

regarding her current medical conditions. None of these physicians have supported a change in 

her accepted injury-related condition. Dr. McCord found on January 16, 2015 no change in her 

condition. Drs. Fiechtl and McNamara opined in 2015 reports that appellant had sustained a new 

back injury and that her current back conditions and resulting sciatica were not related to her 

accepted employment injury. Appellant has submitted no medical evidence supporting her claim 

for modification of her wage-earning capacity decision based on a material change in the nature 

and extent of her injury-related condition. Due to the deficiencies in the medical evidence, the 

Board finds that appellant has failed to meet her burden of proof. 

Appellant may request modification of the wage-earning capacity determination, 

supported by new evidence or argument, at any time before OWCP. 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to modify the loss of 

wage-earning capacity decision. 
7

ORDER 

IT IS HEREBY ORDERED THAT the February 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 15, 2016 

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