United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.K., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, OLYMPIC 

NATIONAL PARK, Port Angeles, WA, Employer

__________________________________________

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Docket No. 16-1919

Issued: December 12, 2017

Appearances: Case Submitted on the Record

Stephanie N. Leet, 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 September 29, 2016 appellant, through counsel, filed a timely appeal from an April 4, 

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 the claim.

 

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

ISSUE

The issue is whether OWCP met its burden of proof to modify a June 7, 2007 loss of 

wage-earning capacity (LWEC) determination, and reduce appellant’s compensation to zero 

effective May 7, 2015. 

FACTUAL HISTORY

On June 8, 2005 appellant, then a 48-year-old maintenance mechanic, filed an 

occupational disease claim (Form CA-2) alleging lower back and bilateral hip conditions arose in 

the performance of duty on or about May 31, 2005.3 He stopped work on June 17, 2005. On 

September 7, 2005 OWCP initially accepted appellant’s claim for lumbar strain. It subsequently 

expanded the accepted conditions to include lumbosacral spondylosis.

On October 30, 2005 appellant returned to work in a temporary, light-duty assignment. 

However, the employing establishment was only able to accommodate his restrictions through 

December 3, 2005. OWCP paid appellant wage-loss compensation for temporary total disability 

beginning February 19, 2006. Appellant continued to receive disability compensation through 

October 31, 2006. Effective November 2, 2006, he began work in the private sector 

(GoWireless) as a cellular telephone service salesperson. OWCP later terminated appellant’s

wage-loss compensation, but continued to compensate him based on the difference between his 

actual earnings and his date-of-injury earnings as a maintenance mechanic.

On June 6, 2007 OWCP issued a formal LWEC determination. It found that appellant’s 

actual weekly wages ($462.24) as a salesman for GoWireless, effective November 2, 2006, fairly 

and reasonably represented his wage-earning capacity. OWCP further found that, because 

appellant demonstrated his ability to perform the position for more than two months, the sales 

position was considered suitable to his partially disabled condition. Consequently, it formally 

adjusted his 28-day compensation payments to reflect his approximate 56 percent loss in wageearning capacity.4

Appellant subsequently advised OWCP that he no longer worked for GoWirless and that 

in December 2007 he began working part time as a bus driver. He continued to work as a parttime bus driver for several years thereafter. OWCP paid appellant wage-loss compensation 

based on the June 6, 2007 LWEC determination.

Dr. Jennifer Carl, a Board-certified physiatrist and appellant’s treating physician, last 

examined him on August 17, 2009. At the time, she noted that she had not seen appellant in over 

two years. Dr. Carl diagnosed work-related lumbar strain, lumbar spondylosis, and low back 

 

3 Appellant indicated that he had worked as a maintenance mechanic since 1999. His responsibilities included 

performing plumbing and electrical installation/repair work utilizing a variety of hand and power tools. Appellant 

worked indoor and outdoor, in open spaces, as well as confined areas such as attics and crawl spaces. He also 

performed building/carpentry trade work, such as roof repair, painting, cabinet installation, repairing overhead 

doors, and pouring/forming concrete. Additional duties included operating various types of off-road and on-road 

equipment, including front-end loaders, backhoes, and dump trucks.

4 OWCP noted that the current weekly pay rate of appellant’s date-of-injury position was $1,055.54.
3

degenerative disc and joint problems. She noted that appellant could not perform his usual job 

and she imposed work restrictions, including a 30- to 35-pound weight limitation with respect to 

pushing/pulling/lifting. Dr. Carl characterized them as “Lifetime” restrictions.

In a January 13, 2012 report, Dr. Michael J. Battaglia, a Board-certified orthopedic 

surgeon and OWCP referral physician, noted the history of injury, reviewed the statement of 

accepted facts (SOAF) and the medical record, and provided examination findings. He reported 

that appellant had been working as a school bus driver since 2007 and currently was not 

undergoing active treatment. Dr. Battaglia diagnosed lumbar spondylosis, which in his opinion 

was unrelated to the employment injury. He also noted that appellant had permanent aggravation 

secondary to the employment injury and the type of work he did for many years. Dr. Battaglia 

noted that appellant’s work-related conditions had not resolved given his objective findings and 

the fact that this was a permanent aggravation. He indicated that appellant was at maximum 

medical improvement and was unable to perform his prior duties as a maintenance mechanic.

Dr. Battaglia explained that appellant’s inability to perform his date-of-injury position was due to 

the industrial injury, as this was a “permanent aggravation.” No further treatment was 

recommended. Dr. Battaglia also opined that appellant had permanent work-related restrictions, 

noting in a separate work capacity evaluation (Form OWCP-5c) that appellant had a 35-pound 

weight restriction with respect to pulling and lifting. He also precluded squatting and kneeling.

OWCP continued to pay wage-loss compensation based on the June 6, 2007 LWEC 

determination.

In July 2014, OWCP again referred appellant for a second opinion examination. In an 

August 9, 2014 report, Dr. Aleksandar Curcin, an orthopedic surgeon, noted the history of injury 

and reviewed the SOAF and the medical record, including diagnostic testing and second opinion 

reports. He noted that appellant currently worked as a school bus driver. Dr. Curcin opined that 

the accepted lumbar sprain/strain had resolved, but appellant’s lumbosacral spondylosis was still

present and appeared to be causing subjective symptoms. He explained that a sprain/strain-type 

injury would be expected to resolve within a 10- to 12-week timeframe, but the condition of 

lumbosacral spondylosis would never completely resolve. Dr. Curcin further noted that 

appellant appeared to be at baseline status with mechanical back pain. There were no symptoms 

of radiculopathy and appellant did not have constant, daily pain. Dr. Curcin further commented 

that there did not appear to be any medical impediments hindering recovery and that no further 

medical care was warranted to address appellant’s work-related conditions. He noted that there 

were no clear cut physical limitations resulting from the accepted conditions, but felt that a 

functional capacity evaluation (FCE) would be helpful prior to completing a work capacity 

evaluation (OWCP-5c). As to appellant’s ability to resume his date-of-injury maintenance 

mechanic position, Dr. Curcin indicated that appellant was capable of returning to the position 

full time, but cautioned that resuming that line of heavy manual labor more than likely would 

result in exacerbating appellant’s back pain complaints.

A September 23, 2014 FCE revealed that appellant was capable of performing medium to 

heavy physical demand work on a full-time basis.

In an addendum to his August 9, 2014 report, Dr. Curcin advised that he reviewed the 

maintenance mechanic position description, as well as the recent FCE, and it appeared appellant 
4

could perform the described duties without restriction. He also provided a separate work 

capacity evaluation (Form OWCP-5c) which indicated that appellant was capable of performing 

his usual job.

By notice dated October 30, 2014, OWCP advised appellant that it proposed to modify

the June 6, 2007 LWEC determination based on a “material change” in the extent/nature of his

injury-related condition(s). It explained that the evidence of record showed that appellant’s 

accepted conditions had resolved/improved such that he was capable of performing his date-ofinjury maintenance mechanic position on a full-time basis. Consequently, appellant currently 

had no LWEC and his periodic (28-day) compensation payments would be reduced to zero. 

OWCP provided copies of Dr. Curcin’s August 9, 2014 report and addendum. Appellant was 

afforded at least 30 days to submit additional evidence and/or argument should he disagree with 

the proposed action.

In a November 25, 2014 letter, counsel argued that OWCP could not base its proposed 

action on Dr. Curcin’s report because the second opinion examiner relied on an incomplete and 

inaccurate SOAF. She noted that appellant wore corrective shoes and had mild scoliosis, 

information she believed was not shared with Dr. Curcin. Counsel also argued that there was an 

unresolved conflict in medical opinion between Dr. Curcin and Drs. Battaglia and Carl, and 

therefore, the case should have been sent to an impartial medical examiner. She essentially 

argued that OWCP had not met its burden of proof to modify or terminate appellant’s wage-loss 

compensation determination.

OWCP prepared a March 4, 2015 amended SOAF, to include that appellant wore 

corrective shoes and had preexisting scoliosis. It forwarded the latest SOAF to Dr. Curcin and 

asked whether this additional information altered his prior opinion.

In a March 10, 2015 addendum, Dr. Curcin indicated that he had reviewed the updated 

SOAF, but it did not alter his prior opinions.

By decision dated May 7, 2015, OWCP informed appellant that it was reducing his wageloss compensation to zero effective immediately. It addressed counsel’s arguments and 

determined that Dr. Curcin’s opinion established that appellant was capable of performing his 

date-of-injury maintenance mechanic position on a full-time basis. OWCP further noted that the 

claim would remain open for medical care of appellant’s accepted lumbosacral spondylosis.

Appellant timely requested an oral hearing before a representative of OWCP’s Branch of 

Hearings and Review, which was conducted via telephone on February 10, 2016. Counsel 

argued that, while appellant was capable of working as a bus driver, appellant was unable to 

resume his prior duties as a maintenance mechanic. At the hearing and in subsequent 

correspondence, she continued to challenge OWCP’s reliance on Dr. Curcin’s opinion as a basis 

for modifying the prior LWEC determination. Counsel also submitted additional medical 

evidence.

In a November 26, 2014 report, Dr. Justin L. Esterberg, a Board-certified orthopedic 

surgeon, reported that appellant had right-sided predominant low back pain at the lumbosacral 

junction and upper buttock region/lateral sacral region, which had been ongoing for years. He 
5

noted that appellant had a couple of severe episodes of pain in the past and also had a history of 

work injury to his low back. Dr. Esterberg provided an assessment of chronic low back pain,

which he opined was likely due to the underlying arthritis present in the areas of L4-5, 

potentially L5-S1. He noted that appellant seemed to be managing all of his symptoms quite 

well. Dr. Esterberg indicated that he agreed with appellant that it was best to avoid any 

significant manual labor or a lot of heavy lifting. He reasoned that being a mechanic at this point 

would probably not work out very well for appellant’s low back and that he could have an 

increase in his low back pain, particularly with the bending, lifting, and twisting done in that type 

of work. Dr. Esterberg noted that he reviewed a magnetic resonance imaging (MRI) scan from 

2005, which showed some disc degenerative changes at L4-5, L5-S1 without any stenosis.5

In a May 28, 2015 report, Dr. Roger Olsen, a family practitioner, noted the history of 

injury and appellant’s work and medical history thereafter.6 He opined that appellant was totally 

disabled due to a January 28, 2015 cerebrovascular accident and that a back examination was not 

done due to appellant’s severe handicap secondary to stroke and inability to cooperate physically 

with the examination. Dr. Olsen noted that the stroke left appellant with residuals of impaired 

gait and that he used a cane and had severe right arm weakness, but that there had been some 

improvement with speech. He diagnosed chronic back pain and indicated that appellant has had 

“chronic impairment of functions including sitting, walking, reaching, twisting, bending, 

stooping, pushing, pulling, lifting, squatting, kneeling, climbing.” Dr. Olsen noted that, prior to 

his stroke, appellant had permanent disability from performing his previous maintenance 

mechanic occupational duties due to work-related stresses and injuries aggravating his 

underlying degenerative disc disease. In a May 29, 2015 work capacity evaluation (Form 

OWCP-5c), he opined that appellant could not perform his usual job and that he was totally 

disabled from any work.

By decision dated April 4, 2016, an OWCP hearing representative affirmed the May 7, 

2015 decision. He found that Dr. Curcin’s opinion supported the modification/reduction of 

appellant’s wage-loss compensation and that the reports of Drs. Esterberg and Olsen did not 

reflect sufficient consideration of the September 23, 2014 FCE, which revealed appellant’s 

ability to work at the medium to heavy job classification level. Consequently, the hearing 

representative affirmed OWCP’s prior decision.

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 entitled to compensation computed on LWEC.

7

 A wage-earning capacity 

determination is a finding that a specific amount of earnings, either actual earnings or earnings 

 

5 A June 16, 2005 lumbar MRI scan, interpreted by Dr. Michael Fishman, a radiologist, revealed mild disc 

degeneration at L4-5 and L5-S1. It also showed minimal retrolisthesis of L5 on S1 and no impingement on neural 

elements at these or other lumbar spine levels. 

6 On May 27, 2015 appellant advised OWCP that Dr. Carl had retired and that Dr. Olsen was his new treating 

physician. 

7

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).
6

from a selected/constructed position, represents a claimant’s ability to earn wages.8 Generally, 

an employee’s actual earnings best reflect his or her wage-earning capacity.9 Absent evidence 

that actual earnings do not fairly and reasonably represent the employee’s wage-earning 

capacity, such earnings must be accepted as representative of the individual’s wage-earning 

capacity.10

Compensation payments are based on the wage-earning capacity determination, and 

OWCP’s finding remains undisturbed until properly modified.11 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.12 The burden of proof is on the party seeking 

modification of the wage-earning capacity determination.13

ANALYSIS

OWCP accepted that appellant sustained a lumbar strain and lumbosacral spondylosis as 

a result of his employment activities as a maintenance mechanic. On June 6, 2007 it reduced his 

entitlement to wage-loss compensation based upon a determination that his salesman position for 

GoWireless fairly and reasonably represented his wage-earning capacity. For several years, 

OWCP paid wage-loss compensation based on the June 6, 2007 LWEC determination. On

May 7, 2015 it reduced appellant’s entitlement to wage-loss compensation benefits to zero as the 

medical evidence of record established a material change in condition and appellant was able to 

return to his maintenance mechanic position without restrictions. By decision dated April 4, 

2016, an OWCP hearing representative affirmed the May 7, 2015 decision. Accordingly, OWCP 

has the burden of proof to establish that the June 6, 2007 wage-earning capacity determination 

should be modified.14 

The issue of whether there has been a material change in appellant’s work-related 

condition is a medical determination and may only be resolved by probative medical evidence.15 

OWCP accorded weight of the medical evidence to Dr. Curcin, a Board-certified orthopedic 

surgeon and second opinion physician, who opined in August 9, 2014 and March 10, 2015 

reports that appellant was capable of resuming full-time work with no restrictions as a 

 

8

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

9 Hayden C. Ross, 55 ECAB 455, 460 (2004).

10 Id.

11 See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

12 20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).

13 20 C.F.R. § 10.511.

14 See Tamra McCauley, supra note 12.

15 See Jaja K. Asaramo, 55 ECAB 200 (2004).
7

maintenance mechanic. Specifically, Dr. Curcin found that the accepted lumbar sprain/strain 

was no longer active and that the lumbosacral spondylosis condition was at baseline. 

In his August 9, 2014 report, Dr. Curcin noted the history of injury, and reviewed the 

statement of accepted facts and the medical record. He also presented examination findings. 

Dr. Curcin opined that the accepted sprain/strain of the lumbar region was no longer present. He 

explained that the pathophysiology of a sprain/strain injury was expected to resolve within a 10-

to 12-week period of time. Dr. Curcin also found that, while the lumbosacral spondylosis was 

still present and appeared to be causing subjective symptoms, appellant had reached/returned to

baseline status. He explained that appellant’s lumbosacral spondylosis would never completely 

resolve and that appellant had mechanical back pain with no symptoms of radiculopathy or 

constant daily pain. Dr. Curcin cautioned that in returning appellant to heavy manual labor, 

appellant may experience an exacerbation of his back pain complaints. In a March 10, 2015 

addendum, he reviewed the updated March 4, 2015 SOAF, which reflected that appellant wore 

corrective shoes and had preexisting scoliosis. Dr. Curcin also reviewed appellant’s position 

description and the September 23, 2014 physical capacity evaluation. He indicated that his prior 

opinion, that appellant could resume his maintenance mechanic position without restriction, had 

not changed. 

The Board finds that, based on the opinion of Dr. Curcin, OWCP established that 

appellant was no longer disabled as a result of his May 13, 2005 employment injury. He 

concluded that appellant had recovered from the work-related conditions and was capable of 

returning to full-time work as a maintenance mechanic. Dr. Curcin provided a thorough factual 

and medical history and accurately summarized the relevant medical evidence. He conducted a 

physical examination and opined that the lumbar sprain had resolved and the lumbosacral 

spondylosis condition was at baseline. He also reviewed the position description and the 

September 23, 2014 physical capacity evaluation and opined that appellant could resume his 

date-of-injury position. Thus, OWCP met its burden of proof to modify the June 7, 2007 LWEC

determination, and reduce appellant’s compensation to zero effective May 7, 2015.

The opinions of Dr. Esterberg and Dr. Olsen regarding appellant’s disability are 

insufficient to overcome the weight afforded Dr. Curcin’s opinion. 

In his November 26, 2014 report, Dr. Esterberg provided an assessment of chronic low 

back pain, which he opined was likely due to the underlying arthritis at L4-5 and potentially L5-

S1. Dr. Esterberg’s recommendation that appellant should avoid any significant manual labor or 

a lot of heavy lifting are prophylactic in nature and does not establish ongoing employmentrelated disability. The possibility of future injury does not constitute a basis for the payment of 

compensation under FECA.16 Moreover, Dr. Esterberg did not consider the results of the 

September 23, 2014 FCE.

In his May 29, 2015 report, Dr. Olsen diagnosed chronic back pain and indicated that 

appellant has had chronic impairment of several functions. However, Dr. Olsen did not perform 

a back examination due to appellant’s severe handicap secondary to a January 28, 2015 

cerebrovascular accident. While Dr. Olsen opined that appellant was permanently disabled from 

 

16 See S.N., Docket No. 13-2069 (issued February 21, 2014).
8

performing his maintenance mechanic position prior to his stroke, he failed to provide a reasoned 

explanation as to why he believed that appellant was disabled. He also failed to consider the 

results of the September 23, 2014 physical capacity evaluation. The Board has found that 

medical evidence that offers a conclusion, but does not offer any rationalized medical 

explanation is of limited probative value.17

On appeal, counsel asserts that OWCP had not followed the process for modifying an 

LWEC determination given the inaccurate SOAF and the inadequate job description provided

Dr. Curcin. He also argues that the new medical evidence was inconsistent with OWCP’s 

determination. As noted, OWCP amended the SOAF and provided Dr. Curcin a copy of 

appellant’s maintenance mechanic position description. Moreover, the reports of Dr. Esterberg 

and Dr. Olsen are of diminished probative value and are insufficient to create a conflict of 

medical opinion with Dr. Curcin. For the reasons noted above, OWCP met its burden of proof in 

modifying the June 7, 2007 LWEC determination.

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 OWCP met its burden of proof to modify the June 7, 2007 LWEC

determination, and reduce appellant’s compensation to zero effective May 7, 2015.

 

17 T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).
9

ORDER

IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

18

Issued: December 12, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

18 Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board 

effective December 11, 2017.