United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

DEPARTMENT OF THE NAVY, NAVY 

PUBLIC WORKS CENTER, Norfolk, VA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-1610

Issued: April 25, 2019

Appearances: Case Submitted on the Record

Neil C. Bonney, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 20, 2018 appellant, through counsel, filed a timely appeal from a July 20, 2018 

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 to consider the merits of this case.3

 

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.

3 The Board notes that following the July 20, 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 establish that modification of 

his October 31, 2007 loss of wage-earning capacity (LWEC) determination was warranted.

FACTUAL HISTORY

On June 17, 1996 appellant, then a 41-year-old roofer, filed a traumatic injury claim (Form 

CA-1) alleging that, on that date, he injured his lower back when climbing and moving materials 

while in the performance of duty. On August 7, 1996 OWCP accepted his claim for right hip 

strain. On September 7, 1996 it expanded the acceptance of his claim to include lumbosacral 

strain, herniated disc L5-S1, right sciatica, and the resulting surgery on June 29, 1996 including 

hemilaminectomy, foraminotomy, on the right at L5-S1 with discectomy. On October 31, 1996 

appellant underwent authorized lumbar fusion at L5-S1.

On December 26, 1996 OWCP placed appellant on the periodic rolls for payment of wageloss compensation due to total disability. Appellant returned to part-time work on May 5, 1997 

for four hours a day, five days a week with a 25-pound lifting restriction and no climbing, bending, 

or twisting. On March 16, 1998 he returned to work for eight hours a day.

On September 21, 1998 appellant filed a notice of recurrence (Form CA-2a) alleging that 

his June 17, 1996 employment injury rendered him disabled from work beginning 

September 18, 1998. On January 4, 1999 he underwent an authorized L4 right laminotomy, 

removal of instrumentation, and implantation of bone graft. On May 26, 1999 OWCP again placed 

appellant on the periodic rolls for wage-loss compensation due to total disability.

On May 24, 2007 the employing establishment offered appellant a light-duty position as 

an equipment, facilities, and services assistant working eight hours a day. The position was

sedentary and required him to lift, push, and pull up to 10 pounds with the ability to alternate sitting 

and standing. Appellant was required to walk short distances for up to one hour a day. On June 12, 

2007 he accepted that light-duty position and returned to work. 

By decision dated October 31, 2007, OWCP found that the equipment, facilities, and 

services assistant position represented appellant’s wage-earning capacity. It authorized wage-loss 

compensation benefits based on appellant’s loss of wage-earning capacity (LWEC) in this position 

in the amount of $536.00 every 28 days.

On August 12, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that, on 

July 28, 2015, he stopped work due to his May 17, 1996 employment injuries. He indicated that 

he could only work four hours a day. 

In an October 9, 2015 development letter, OWCP advised appellant that he should submit 

medical evidence in support of his claimed recurrence. It afforded him 30 days to respond. No 

response was received.

By decision dated November 16, 2015, OWCP denied appellant’s claim for a recurrence 

of disability beginning on July 28, 2015.
3

On November 19, 2015 appellant responded to OWCP’s request for information and 

asserted that his back condition had worsened such that he could no longer sit for eight hours a 

day. He provided a series of medical reports from Dr. Mark B. Kerner, a Board-certified 

orthopedic surgeon. Dr. Kerner opined that appellant’s injury-related condition had worsened and 

that he required additional surgery. 

On September 6, 2016 appellant requested reconsideration of the November 16, 2015 

decision. By decision dated November 29, 2016, OWCP denied modification of the November 16, 

2015 decision, finding that the record supported four hours disability, rather than total disability 

as appellant had claimed. 

On March 6, 2017 appellant, through counsel, requested reconsideration of the 

November 29, 2016 decision. Counsel contended that appellant was not seeking total disability as 

described in OWCP’s November 29, 2016 decision, but instead partial disability for four hours a 

day.

On May 22, 2017 OWCP informed appellant that as a formal LWEC determination had 

been issued on October 31, 2007, his request for reconsideration had been considered as a request 

for modification of the October 31, 2007 LWEC determination. It informed him of the standard 

for modifying an LWEC determination and afforded him 30 days to respond.

On June 13, 2017 Dr. Kerner examined appellant due to back pain. He diagnosed lumbar 

radicular pain and end of the battery life for appellant’s spinal cord stimulator.

By decision dated June 23, 2017, OWCP denied modification of the October 31, 2007

LWEC determination. It found that appellant had not submitted medical opinion evidence 

establishing a change in his accepted conditions and that he had therefore not established a basis 

for modification of the October 31, 2007 LWEC determination.

Subsequently, in a note dated June 13, 2017, Dr. Kerner reported appellant’s symptoms of 

worsening pain down his left leg. He also noted that appellant’s spinal cord stimulator was not 

working properly. Dr. Kerner recommended additional diagnostic testing to rule out junctional 

stenosis at the level above appellant’s fusion. 

On June 26, 2017 appellant underwent a lumbar spine computerized tomography (CT) scan 

which demonstrated markedly increased degenerative disc disease at L3-4 as compared to his 

June 2016 injury. Dr. Nripendra C. Devanath, a diagnostic radiologist, opined, “The findings 

likely represent significantly worsened degenerative disc disease.” 

On August 4, 2017 Dr. Kerner examined appellant due to back pain and diagnosed lumbar 

stenosis, lumbago-sciatica due to displacement of lumbar intervertebral disc, insertion of spinal 

cord stimulator, and displacement of lumbar intervertebral disc without myelopathy. He 

recommended additional back surgery.

On September 18, 2017 Dr. Franklin M. Epstein, a Board-certified neurosurgeon acting as 

an OWCP district medical adviser (DMA), reviewed the statement of accepted facts (SOAF) and 

medical records. He found that appellant required additional back surgery causally related to his 

June 17, 1996 employment injuries and resulting back surgeries on June 29, 1996, October 31, 

1996, and January 4, 1999. Dr. Epstein noted that appellant was experiencing a marked increase 
4

in the level of his chronic pain because of new nerve compression at the L3-4 level, an “adjacent 

level” problem due to his prior spine fusions. 

On December 7, 2017 appellant requested modification of the October 31, 2007 LWEC 

determination. He continued to request compensation for four hours a day.

By decision dated January 10, 2018, OWCP denied modification of the October 31, 2007 

LWEC determination. It found that Dr. Kerner’s reports failed to establish a material change in 

the nature and extent of appellant’s injury-related condition.

On January 22, 2018 appellant again requested modification of the October 31, 2007 

LWEC determination. He provided a January 16, 2018 report from Dr. Kerner who noted that he 

reduced appellant’s work hours to four hours a day in July 2015. Dr. Kerner further noted that 

appellant had sustained a material change in his injury-related condition as demonstrated by the 

June 16, 2018 CT scan which confirmed severe stenosis at the level adjacent to appellant’s 

previous lumbar fusions. He also noted that appellant’s lumbar pain had progressed necessitating 

the reduction in his work hours from eight to four.

By decision dated April 26, 2018, OWCP denied modification of the October 31, 2007 

LWEC determination.

On July 5, 2018 appellant, through counsel, again requested modification of the 

October 31, 2007 LWEC determination. In a letter dated June 29, 2018, counsel asserted that,

after 19 years of working following his back injury, appellant requested leave without pay for four 

hours a day due to a worsening of his accepted condition. On June 12, 2018 appellant described 

his medical treatment from June 17, 1996 and his return to work for eight hours a day on 

September 20, 2007. He noted on December 16, 2012 that he was transferred to a different 

position as a facility service assistant. Appellant alleged that this position required sitting for 

extended periods of time using a computer and other technology tools. He tried various ergonomic 

chairs and desks, but he experienced uncontrolled nerve pain and spasms. On July 28, 2015

Dr. Kerner reduced appellant’s work hours to four a day. Appellant requested wage-loss 

compensation for four hours a day from July 28, 2015 through May 1, 2017.

On January 31, 2017 Dr. Kerner continued to diagnose junctional stenosis above the L4 

fusion. He noted that appellant was working four hours a day. In a note dated September 5, 2017,

Dr. Kerner diagnosed chronic back pain and post-laminectomy syndrome. On December 5, 2017

he diagnosed post-laminectomy syndrome with junctional stenosis at L3-4. Dr. Kerner

recommended surgery.

By decision dated July 20, 2018, OWCP denied modification of the October 31, 2007 

LWEC determination.

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, represent a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination and it 
5

remains undisturbed until properly modified.4 Once the wage-earning capacity of an injured 

employee is determined, a modification of such determination is not warranted unless it meets the 

requirements for modification.5

OWCP has by regulation defined when modification of an LWEC determination should 

occur.6

“If OWCP issues a formal loss of wage-earning capacity determination including a 

finding of no loss of wage-earning capacity, that determination and rate of 

compensation, if applicable, remains in place until that determination is modified 

by OWCP. Modification of such a determination is only warranted where the party 

seeking the modification establishes either that 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. However, OWCP is not precluded from adjudicating a limited period 

of disability following the issuance of a loss of wage-earning capacity decision, 

such as where an employee has a demonstrated need for surgery.7

“Further definition as to when modification of a formal LWEC determination 

should occur if the claimant’s medical condition has materially changed is provided 

in OWCP’s procedures.8 These procedures provide for modification of a[n] LWEC 

determination when “Current medical evidence demonstrates either: (a) a 

worsening of the accepted medical condition with no intervening injury resulting 

in new or increased work-related disability; or (b) that the work-related condition 

has improved and disability has decreased.”

The burden of proof is on the party seeking modification.9 There is no time limit for 

appellant to submit a request for modification of a wage-earning capacity determination.10

ANALYSIS

The Board finds that this case is not in posture for a decision.

OWCP accepted appellant’s claim for right hip strain, lumbosacral strain, herniated disc 

L5-S1, right sciatica, and the resulting surgeries on June 29, 1996, October 31, 1996, and 

January 4, 1999. On October 31, 2007 it found that the employing establishment equipment, 

 

4 S.S., Docket No. 18-0397 (issued January 15, 2019).

5

Id.; J.H., Docket No. 16-0314 (issued May 12, 2016); Sue A. Sedwick, 45 ECAB 211 (1993).

6 20 C.F.R. § 10.511.

7

Id.; supra note 3; 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).

8 Federal (FECA) Procedure Manual, id. at Chapter 2.1501 (June 2013).

9 Supra note 4; J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

10 W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).
6

facilities, and services assistant position, working eight hours a day, represented appellant’s wageearning capacity. Beginning on July 28, 2015, appellant alleged that he could no longer work eight 

hours a day, but could only work four due to his accepted employment injuries.

11

 He continued 

working four hours a day through May 1, 2017.

Dr. Kerner provided several reports and diagnostic tests. He opined that appellant’s injuryrelated condition had worsened and that he required additional surgery. OWCP referred the 

medical evidence to its DMA, Dr. Epstein, who found that appellant required additional back 

surgery causally related to his June 17, 1996 employment injuries and accepted back surgeries on 

June 29, 1996, October 31, 1996, and January 4, 1999. He noted that appellant was experiencing 

a marked increase in the level of his chronic pain because of new nerve compression at the L3-4 

level, an “adjacent level” problem from his prior spine fusions.

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.12 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.13 Herein, appellant 

alleged and submitted medical evidence in support of his claim that his condition worsened 

following the issuance of an LWEC determination. OWCP began to develop the evidence by 

seeking an opinion from a DMA regarding his need for additional surgery. It failed, however, to 

seek clarification as to whether appellant’s accepted employment-related conditions had materially 

worsened thereby disabling him from performing the duties of his LWEC position of equipment, 

facilities, and services assistant at the employing establishment.

On remand, OWCP shall create a new SOAF which properly describes appellant’s 

equipment, facilities, and services assistant position, which was the basis of his LWEC 

determination, and provide position descriptions for any subsequent positions to which he was 

assigned including facility service assistant. It shall thereafter refer the medical evidence of record

and the new SOAF to a physician in the appropriate field of medicine for an opinion as to whether 

appellant had a change in his employment-related medical conditions that rendered him disabled 

from his LWEC position on or after July 28, 2015. After this and such other development of the 

evidence as it deems necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for a decision.

 

11 See Sharon C. Clement, 55 ECAB 552 (2004) (the criteria for modifying formal LWEC determinations remains 

the same regardless of whether a given claimant continues to work or stops work after the issuance of the formal 

LWEC determination).

12 S.S., Docket No. 18-0397 (issued January 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

13 S.S., id.; Richard F. Williams, 55 ECAB 343, 346 (2004).
7

ORDER

IT IS HEREBY ORDERED THAT the July 20, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further development in 

accordance with this decision of the Board.

Issued: April 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board