United States Department of Labor

Employees’ Compensation Appeals Board

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T.J., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, LOS ANGELES 

INTERNATIONAL AIRPORT, Los Angeles, CA, 

Employer

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Docket No. 18-1477

Issued: April 4, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 24, 2018 appellant filed a timely appeal from a May 17, 2018 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 17, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met his burden of proof to modify a January 14, 2016

loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

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

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 17, 2003 appellant, then a 25-year-old transportation security screener, filed a 

traumatic injury claim (Form CA-1) alleging that he injured his back on March 19, 2003 helping 

a passenger place luggage on a table. He stopped work on March 24, 2003. Following a brief 

return to work on May 1, 2003, appellant filed a notice of recurrence (Form CA-2a) indicating that 

he had stopped work on April 27, 2003 because his back pain continued. On August 8, 2003 

OWCP accepted the claim for lumbosacral strain. It paid appellant wage-loss compensation on 

the supplemental rolls as of May 25, 2003 and on the periodic rolls as of August 10, 2003. 

In June 2003, appellant came under the care of Dr. H. Vincent Mitzelfelt, Board-certified 

in occupational medicine, who provided monthly form progress reports and advised that appellant 

should remain off work. Dr. Ali Berenji, an orthopedic surgeon, performed authorized discectomy 

at L5-S1 on May 26, 2004. 

In April 2015, OWCP referred appellant to Dr. Richard A. Rogachefsky, a Board-certified 

orthopedic surgeon, for a second-opinion evaluation. In a May 13, 2015 report, Dr. Rogachefsky 

noted the history of injury, his review of the medical record and appellant’s complaint of radiating 

low back pain. He described physical examination findings, recommended an updated magnetic 

resonance imaging (MRI)scan, and indicated that appellant was capable of working modified duty. 

In a supplemental report dated June 3, 2015, Dr. Rogachefsky noted that a lumbar MRI scan 

demonstrated an L5 compression fracture. He concluded that appellant was no longer totally 

disabled and was capable of employment with physical limitations of no climbing, bending, or 

stooping. Lifting, pushing, and pulling were limited to no greater than 10 pounds, and walking to 

25 minutes. Appellant was to take 15-minute breaks. 

Appellant, who had been referred for vocational rehabilitation services in August 2011,4

was again referred in August 5, 2015 for updates on job classifications. A vocational rehabilitation 

specialist provided an update on a surveillance-system monitor position on August 19, 2015. 

 

3 Docket No. 16-1473 (issued February 7, 2017).

4 Appellant’s vocational rehabilitation services filed was closed on July 25, 2012. 
3

By decision dated January 14, 2016, OWCP reduced appellant’s wage-loss compensation 

based on his capacity to earn wages as a surveillance systems monitor, effective that day. By 

utilizing the Shadrick formula,5it found that he had a 21 percent LWEC. 

On February 12, 2016 appellant requested reconsideration, asserting that the medical 

evidence established that he was totally disabled. 

Appellant also submitted reports dated February 22 and April 4, 2016 in which

Dr. Mitzelfelt repeated appellant’s complaints of constant and increasing radiating low back pain. 

Dr. Mitzelfelt described examination findings and advised that appellant could work for four hours 

per day at most with occasional lifting of 20 pounds. 

By decision dated May 10, 2016, OWCP denied modification of the January 14, 2016 

LWEC determination. Appellant thereafter filed an appeal with the Board. By decision dated 

January 26, 2017, the Board found that he had not submitted sufficient medical evidence to 

establish a material change in the nature and extent of his injury-related conditions and, therefore, 

had not met his burden of proof to establish that the January 14, 2016 LWEC determination should 

be modified. The Board affirmed the May 10 and January 14, 2016 OWCP decisions.6 

On July 27, 2017 appellant requested reconsideration. He asserted that he was totally 

disabled and could not work. 

During the pendency of appellant’s appeal with the Board, Dr. Mitzelfelt had submitted 

reports, dated May 9 and July 18, 2016, in which he described appellant’s medical management

and reiterated appellant’s physical restrictions. On January 5, 2017 Dr. Jason Groomer, an 

osteopath, assumed appellant’s treatment and submitted monthly reports. 

Dr. Kourosh Kevin Shamlou, a Board-certified orthopedic surgeon, evaluated appellant on 

March 8, 2017. He noted chief complaints of low back pain and bilateral leg pain, and described 

the employment injury and appellant’s medication regimen. Dr. Shamlou indicated that 

appellant’s gait was normal. Lumbosacral range of motion was limited and painful and there was 

tenderness on examination of the lumbosacral spine. Straight leg raises produced pain. Lower 

extremity neuromotor and sensory examinations were within normal limits. Dr. Shamlou 

diagnosed L5-S1 discogenic back pain with radiculopathy. He opined that, given the fact that 

appellant took narcotics and muscle relaxants on a daily basis to be somewhat functional, he was 

not employable because of his low back condition. 

Dr. Malihel Massih, a Board-certified physiatrist, performed a lower extremity 

electromyograph (EMG) and nerve conduction velocity (NCV) study on May 25, 2017. She 

advised that the study was abnormal and could suggest subacute mild L5-S1 radiculopathy in 

bilateral lower extremities. Dr. Massih performed a second EMG/NCV study on July 7, 2017 

 

5 Albert C. Shadrick, 5 ECAB 376 (1953). The LWEC was based on information provided by Richard D. Hunt, a 

vocational rehabilitation counselor and the medical opinion of Dr. Rogachefsky. 

6 Supra note 3.
4

limited to the right tibialis anterior muscle. She reported that appellant’s clinical presentation had 

not changed and was consistent with right L5 and S1 nerve root pathology. 

By decision dated November 14, 2017, OWCP found the medical evidence submitted 

insufficient to modify the January 14, 2016 LWEC determination. 

Appellant again requested reconsideration on February 16, 2018 claiming that he was 

totally disabled. 

In support of his reconsideration request, appellant submitted a January 13, 2017 MRI scan 

of the lumbar spine that demonstrated a disc bulge with severe right and moderate left neural 

foraminal narrowing at L5-S1 and a disc protrusion/extrusion at L4-5 with moderate right 

foraminal narrowing. 

Dr. Shamlou provided a December 6, 2017 report in which he noted appellant’s complaints 

of radiating low back pain with weakness and numbness in both legs. He noted January 2017 MRI 

scan findings, described appellant’s physical examination, and diagnosed L4-5, L5-S1 spondylosis 

with discogenic back pain, disc herniation per MRI scan, and radiculopathy. Dr. Shamlou 

indicated that appellant was limited to less than 15 minutes of sitting/standing/walking at one time.

He advised that appellant took up to six narcotics and muscle relaxants per day in order to function

and that those medications interfered with his ability to comprehend or operate machinery. 

Dr. Shamlou concluded that appellant was not employable. 

In a January 11, 2018 report, Dr. Groomer described the physical activities of the 

surveillance system monitor position. He noted Dr. Shamlou’s description of appellant’s 

restrictions. Dr. Groomer wrote that he would interpret Dr. Shamlou’s finding to mean that, in 

appellant’s capacity as a security operative for the employing establishment, he needed to be able 

to respond and comprehend subtle cues while surveilling the public, recognize subtle findings on 

x-ray machines, be able to comprehend instructions, and be required to rapidly respond to those 

instructions and perform job duties potentially under stressful conditions. He also noted that 

appellant would have to drive daily to and from his work location. Dr. Groomer concurred with

Dr. Shamlou’s conclusion that appellant was not employable in any capacity, finding him 

permanently and totally disabled. He continued to submit monthly reports in which he described 

appellant’s medical management. 

By decision dated May 17, 2018, OWCP denied modification of the January 14, 2016 

LWEC determination. It found that the reports from Dr. Groomer and Dr. Shamlou were 

insufficient to modify the LWEC determination, noting that neither physician had accurately 

described the duties of the surveillance system monitor position on which the determination had 

been based.

LEGAL PRECEDENT

An injured employee who is either unable to return to the position held at the time of injury 

or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is 
5

entitled to compensation computed on LWEC.

7

 An LWEC determination is a finding that a 

specific amount of earnings, either actual earnings or earnings from a selected/constructed 

position, represents a claimant’s ability to earn wages.8 

Compensation payments are based on these determinations, and OWCP’s finding remains 

undisturbed until properly modified.9 Modification of an LWEC determination is unwarranted 

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 erroneous.10 The burden of proof is on the party seeking modification.11

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify the January 14, 

2016 LWEC determination.12

Appellant asserts on appeal that the accepted conditions materially changed such that he is 

totally disabled. He did not assert that the January 14, 2016 LWEC determination was erroneous 

or indicate that he had been retrained or otherwise vocationally rehabilitated. 

In its January 26, 2017 decision, the Board reviewed all evidence submitted prior to 

OWCP’s May 10, 2016 decision. The Board’s review of the previously submitted evidence of 

record is res judicata absent any further review by OWCP under section 8128(a) and; therefore,

the prior evidence need not be addressed again in this decision.13

In support of his request to modify the LWEC determination, appellant submitted a 

May 25, 2017 report in which Dr. Massih reported EMG/NCV study findings. Dr. Massih, 

however, did not comment on his ability to perform the surveillance-system monitor position and 

thus her report lacks probative value relative to the issue of wage-earning capacity.

14

 

Appellant also submitted a series of report from Dr. Mitzelfelt and then Dr. Groomer dated 

from May 9, 2016 to May 1, 2018. The majority of these reports described her medical 

management, but did not discuss his work capacity. These reports did not establish a material 

 

7 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see T.H., Docket No. 18-0704 (issued September 6, 2018).

8 See W.G., Docket No. 18-0374 (issued August 28, 2018).

9

J.H., Docket No. 18-0535 (issued December 31, 2018); Katherine T. Kreger, 55 ECAB 633, 635 (2004).

10 20 C.F.R. § 10.511; see J.H., id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of 

Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).

11 J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

12 5 U.S.C. § 8114(d).

13 E.C., Docket No. 17-1765 (issued January 24, 2018); E.L., Docket No. 16-0635 (issued November 7, 2016). See 

A.T., Docket No. 16-0738 (issued May 19, 2016).

14 See C.C., Docket No. 18-1127 (issued January 29, 2019). 
6

worsening of the accepted conditions and did not provide a rationalized opinion explaining how 

the accepted conditions prevented him from performing the duties of the selected position.15 In 

his January 11, 2018 report, Dr. Groomer described the physical activities of a security agent with 

the employing establishment; however, he did not discuss the requirements of the sedentary 

surveillance systems monitor position on which the LWEC was based.16 While he noted that 

appellant would have to drive daily to and from his work location, this is irrelevant to the 

modification issue as he lives in the same large metropolitan city in which the employing 

establishment is located and public transportation is available. Dr. Groomer’s opinion is,

therefore, insufficient to establish that appellant could not perform the position of surveillance 

systems monitor.17

Dr. Shamlou opined that because appellant took up to six narcotics and muscle relaxants 

on a daily basis to be able to function, he was not employable, noting that the medications 

interfered with his ability to comprehend or operate machinery. The accepted conditions in this 

case are lumbosacral strain and displaced lumbar intervertebral disc. Dr. Shamlou did not 

acknowledge the accepted conditions or explain why appellant’s heavy medication regimen was 

due to a worsening of these accepted conditions. Furthermore, he did not mention the surveillance 

system monitor position or opine as to whether appellant could perform the position. Instead,

Dr. Shamlou merely advised that appellant could not work. The Board finds his opinion 

insufficient to establish a material change in the injury-related conditions such that the January 14, 

2016 LWEC determination should be modified.

18

It is appellant’s burden of proof to establish that modification of the January 14, 2016 

LWEC determination was warranted.19 The Board finds that he has failed to submit a rationalized 

medical opinion, based on a complete background, establishing a material change in his 

employment-related condition which prevented him from performing the surveillance systems 

monitor position. As such, appellant, has not met his burden of proof in this case.20

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 establish that the 

January 14, 2016 LWEC determination should be modified.

 

15 Id. 

16 Id. 

17 Id. 

18 Id.

19 J.A., supra note 11.

20 See N.M., Docket No. 18-1244 (issued March 4, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the May 17, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board