United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.O., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Hampton, GA, Employer 

__________________________________________ 

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Docket No. 14-1314 

Issued: September 25, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2014 appellant filed a timely appeal from the April 16, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP), which denied modification of its 

loss of wage-earning capacity (LWEC) determination. 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. 

ISSUE 

The issue is whether appellant met his burden of proof to show that modification of 

OWCP’s July 30, 1999 LWEC determination is warranted. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board regarding appellant’s LWEC 

determination.2

 On the prior appeal,3 the Board found that he did not meet his burden to 

establish that modification of OWCP’s July 30, 1999 LWEC determination was warranted.4

 

While receiving compensation for being totally disabled for work, appellant operated a business 

called “Donnie’s Studio 10” from August 1988 until at least October 1996. He held himself out 

to be a self-employed photographer. Appellant established a studio, printed brochures 

advertising his services and took pictures for families, wedding, schools and various businesses. 

On the basis of this information, OWCP found that he demonstrated over a period of time his 

functional capacity to work as a Studio Cameraman at the rate of $6.00 an hour and therefore 

reduced his compensation for total disability. Appellant continued to receive compensation for 

the partial disability caused by his employment injury, but he forfeited his entitlement to all 

compensation from August 7, 1987 to November 18, 1989 and from December 22, 1989 to 

October 9, 1995 because he knowingly failed to report his earnings as a photographer.5 He was 

also found at fault in creating the resulting $372,390.32 overpayment of compensation because 

he made statements as to a material fact which he knew or should have known to be incorrect.6 

The Board found that, although Dr. William H. Biggers, the attending Board-certified 

psychiatrist, had zealously supported appellant’s attempt to modify the 1999 LWEC 

determination, his opinion was weakened by an inaccurate and noncredible factual history, a 

history that he had long related and one that this Board found to be inconsistent with the record. 

Dr. Biggers’ opinion was also of reduced probative value by the lack of convincing medical 

rationale. He did not appear to accept that appellant operated a photography business during the 

period 1988 to 1996. Dr. Biggers dismissed the idea as an allegation. He saw appellant in 

psychotherapy every other week during this period for the same disabling anxiety, depression 

and suicidal ideation that was recorded in 1974. Dr. Biggers believed if appellant had been 

 2

 By order dated November 23, 2009, the Board remanded the case to OWCP to adjudicate the proper issue as to 

whether modification of appellant’s LWEC was warranted as appellant had filed a recurrence claim for more than a 

limited period of disability while his LWEC was in place. Docket No. 09-966 (issued November 23, 2009). By 

decision dated March 7, 2011, the Board again remanded the case finding that OWCP improperly adjudicated 

appellant’s request for modification of his LWEC as a request for reconsideration. Docket No. 10-1727 (issued 

March 7, 2011). 

3

 Docket No. 12-1825 (issued March 14, 2013). 

4

 In 1974 appellant, then a 38-year-old air traffic control specialist, sustained an occupational injury in the 

performance of duty. OWCP accepted his compensation for depressive reaction and hypertension. Beginning in 

2005, it modified and expanded its acceptance of appellant’s claim: major depression, recurrent episode, in partial 

or unspecified remission; malignant hypertension; hypertensive retinopathy; anxiety state, unspecified; posttraumatic stress disorder (PTSD); coronary atherosclerosis; atrial fibrillation; and erectile dysfunction/impotence of 

organic origin. 

5

 The Board, on July 7, 2003, affirmed the finding of forfeiture, fact of overpayment and denial of waiver. It 

remanded the case for recalculation of the overpayment, which at that time was $427,540.26. Docket No. 02-506 

(issued July 7, 2003). 

6

 The Board affirmed the calculation of the $372,390.32 overpayment of compensation on February 11, 2005. 

Docket No. 04-379 (issued February 11, 2005). 
3

engaged in such activity, his close friend, who was also a patient, would have mentioned it to 

him. Dr. Biggers appeared to accept appellant’s longstanding story that he had some 

photography business cards made up as a charade but the Board found that such a history was 

inconsistent with the record and critically undermined his psychiatric opinion.7

Dr. Biggers explained that, if appellant had continued as an air traffic controller, it was 

not unlikely he would have suffered further complications with his hypertension and more 

significant suicidal ideations and if appellant had been self-employed in photography, he likely 

would have had the same issues. He did not adequately explain how the stress of being an air 

traffic controller compared to the stress, if any, of being a still photographer. The Board noted, 

one might assume that photography was in some way a beneficial activity for appellant, 

something he found sufficiently interesting or productive or enjoyable or relaxing that he 

willingly engaged in it for a period of some years. If photography would likely cause the same 

issues appellant experienced as an air traffic controller, it seemed counter-intuitive that he would 

have chosen to engage in such activity. The Board found that Dr. Biggers did not rationally 

explain his opinion in this regard. 

Dr. Biggers noted that appellant’s suicidal ideation had become more pronounced over 

the years. He stated that appellant’s condition continued to worsen, as indicated by PTSD. 

Dr. Biggers did not explain how this prevented appellant from working in the field of 

photography. He asserted that, if appellant performed photography after 1996, the stress likely 

could have contributed to suicide. Dr. Biggers did not identify this stress or attempt to reconcile 

it with appellant’s choice to pursue photography in such a meaningful way over a period of 

years, nor did he explain why appellant could no longer perform that kind of activity. The Board 

affirmed OWCP’s July 2, 2012 decision to deny modification of its 1999 LWEC determination. 

The facts of this case, as set forth in the Board’s prior decision, are hereby incorporated by 

reference. 

Following the most recent appeal, Dr. Biggers submitted a May 20, 2013 report. He 

acknowledged that appellant engaged in photography as a limited, part-time hobby between 1988 

and 1996 with his spouse, but not as an occupation. Dr. Biggers encouraged the hobby, as he felt 

it would be beneficial for appellant’s depression to get him out of the house doing an activity he 

enjoyed with his spouse. He related that it was appellant’s opinion that the duties of a 

professional photographer, such as a studio cameraman, were similar to the duties of an air 

traffic controller. They both required attention to details, scheduling, meeting deadlines, 

working closely with others and making technical adjustments to camera and lighting equipment 

similar to radio and radar controls. They both required prompt, correct decisions giving 

directions to complete the task. It was appellant’s opinion that the photography factors would be 

so overwhelming that he would be unable to function, as happened when he was an air traffic 

controller. It was Dr. Biggers’ opinion that appellant was not suitable for any gainful 

employment. 

On August 20, 2013 Dr. Biggers reviewed the file again concerning the period 1988 to 

1996. He had treated appellant every other week for his accepted condition of depression, 

 7

 An OWCP hearing representative found appellant’s argument to be nonsense. 
4

anxiety and PTSD, “all being factors that would have prevented him from being self-employed 

in photography as it did an Air Traffic Controller in 1974.” Dr. Biggers found that appellant had 

not been suitable for gainful employment since he was disqualified as an air traffic controller in 

1974. He noted that appellant’s condition since 1974 had worsened with fatigue, anger, intense 

ideation of suicide, uncontrolled obesity and PTSD, “all of which means that he had been unable 

to seek gainful employment since the date of his injury.” 

Dr. Biggers noted that appellant also suffered from osteoarthritis in the spine and hip, 

which required the assistance of a cane. Appellant complained of difficulty walking, standing 

and bending and he elected to have bilateral hip replacement surgery in 1999. “This condition 

would have prevented [appellant] from doing any ‘cameraman’ duties as the duties would mean 

that he would have to walk and stand for long periods of time.” It was Dr. Biggers’ 

understanding that appellant was doing a little photography as a leisurely part-time hobby, 

“which I encouraged him to do in order to help with his depression and to get him connected 

with the ‘outside world.’” 

Dr. Biggers provided several updated reports. He noted no changes in appellant’s 

condition since August 2013 and he quoted from some of his previous reports. Dr. Biggers again 

stated that he had been treating appellant since 1977 for PTSD, depression and anxiety, 

conditions that would have prevented him from performing the duties of a studio cameraman. 

He added that appellant’s conditions worsened, as indicated by OWCP’s update of accepted 

conditions. 

Appellant asked OWCP to consider Dr. Biggers’ reports and return him to his previous 

level of compensation. 

Dr. Roger A. Marrero, the attending Board-certified family physician treating appellant 

for hypertension, submitted several reports that related Dr. Biggers’ conclusion. 

In a decision dated April 16, 2014, OWCP denied modification of its 1999 LWEC 

determination. It found that Dr. Biggers’ conclusion was again based on inaccurate factual 

evidence. Dr. Marrero supported the stance of Dr. Biggers, but OWCP found that he did not 

have a correct factual history of appellant’s work activities as a photographer. OWCP noted that 

the OIG’s investigation was thorough and presented overwhelming evidence that appellant was 

employed as a photographer during the period 1988 to 1996. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of his duty.8 “Disability” means the incapacity, 

because of an employment injury, to earn the wages the employee was receiving at the time of 

injury. It may be partial or total.9

 8

 5 U.S.C. § 8102(a). 

9

 20 C.F.R. § 10.5(f). 
5

Section 8115(a) of FECA provides that in determining compensation for partial 

disability, the wage-earning capacity of an employee is determined by his or her actual earnings, 

if his or her actual earnings fairly and reasonably represent his or her wage-earning capacity. If 

the actual earnings of the employee do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity as 

appears reasonable under the circumstances is determined with due regard to the nature of his or 

her 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 or circumstances which may affect his or her wage-earning capacity in his or her disabled 

condition.10

Once the loss of wage-earning capacity 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 rehabilitated 

or the original determination was, in fact, erroneous. The burden of proof is on the party 

attempting to show modification of the award.11

ANALYSIS 

To support his request for modification of OWCP’s 1999 LWEC determination, appellant 

submitted additional reports from Dr. Biggers, an attending psychiatrist. The Board finds that 

these reports are largely repetitive of the opinion he previously provided and was considered. 

OWCP was aware that appellant engaged in photography as a part-time hobby. It knew that, 

although he had enjoyed being engaged in this activity for at least eight years, it was now his 

argument that the duties of a studio cameraman were similar to those of an air traffic controller, 

which could be so overwhelming that he would be unable to function. OWCP was also aware 

that Dr. Biggers had treated appellant every other week for his accepted depression, anxiety and 

PTSD. Dr. Biggers was of the opinion these conditions would have prevented appellant from 

being self-employed in photography. As OWCP found, the OIG investigation presented 

overwhelming evidence that appellant engaged in work as a photographer from 1988 to 1996. 

Dr. Biggers repeated his opinion that appellant was unable to seek gainful employment since 

1974. 

The Board finds that the evidence of record is not sufficient to modify the 1999 LWEC 

determination. The evidence submitted on reconsideration essentially reiterates the opinion of 

Dr. Biggers. The Board again finds that OWCP properly denied modification. Appellant has not 

shown that the original determination was, in fact, erroneous and he has not shown a material 

change in the nature and extent of the injury-related condition such that he can no longer perform 

the duties of the selected position. In this regard, the Board notes that Dr. Biggers, a psychiatrist, 

addressed whether the selected position was suitable to appellant’s osteoarthritis. Dr. Marrero, 

the attending Board-certified family physician treating appellant for hypertension, did little more 

than reiterate Dr. Biggers’ stated conclusion. 

 10 5 U.S.C. § 8115(a). 

11 Daniel J. Boesen, 38 ECAB 556 (1987). 
6

Accordingly, the Board finds that appellant has not met his burden of proof. The Board 

will affirm OWCP’s April 16, 2014 decision denying modification of its 1999 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 appellant has not met his burden to show that modification of 

OWCP’s July 30, 1999 LWEC determination is warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the April 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 25, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board