United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.G., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-0075 

Issued: September 25, 2017 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 19, 2015 appellant, through counsel, filed a timely appeal from a July 1, 

2015 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 this case. 

 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 appellant met her burden of proof to modify an October 28, 2008 

loss of wage-earning capacity. 

On appeal counsel asserts that the original loss of wage-earning capacity determination 

was in error as it was based on a part-time position and that the September 14, 2007 statement of 

accepted facts was incorrect. 

FACTUAL HISTORY 

On September 14, 2005 appellant, then a 36-year-old customer service representative 

who worked full time, filed a traumatic injury claim (Form CA-1) alleging that she injured her 

right wrist, lower back, and left knee when she slipped and fell on a wet floor that day. She 

stopped work. On December 12, 2005 OWCP accepted brachial neuritis/radiculitis, other, and 

unspecified thoracic/lumbar neuritis/radiculitis. Appellant received appropriate continuation of 

pay and was placed on the periodic compensation rolls. 

Dr. Leonard A. Bruno, a Board-certified neurosurgeon, began treating appellant in 

December 2005. He diagnosed cervical sprain and herniated disc at C6-7, C7 radiculitis, 

sciatica, questionable nerve bruising, and lumbar sprain secondary to the September 2005 fall. 

Dr. Bruno continued to submit reports describing appellant’s treatment. He referred her to 

Dr. Gregory W. Cooper, a Board-certified neurologist, who opined that appellant’s complaints of 

neck pain and left arm paresthesias were the result of the September 14, 2005 work injury. 

Dr. Simon Galapo, Board-certified in anesthesia and pain medicine, began pain management in 

November 2006.3

 

In September 2006, OWCP referred appellant to Dr. Richard J. Mandel, a Board-certified 

orthopedic surgeon, for a second-opinion evaluation. In a November 2, 2006 report, Dr. Mandel 

concluded that she could work part-time modified duty. 

On September 18, 2007 OWCP referred appellant to Dr. Kevin F. Hanley, a Boardcertified orthopedic surgeon, for a second-opinion evaluation. On October 12, 2007 Dr. Hanley 

diagnosed aggravated cervical disc disease with whiplash syndrome, mild lumbar discomfort, 

tinnitus, and vertigo of the left side. He opined that the September 14, 2005 employment injury 

permanently aggravated a degenerative process in the neck, manifested by significant pain, 

limitation of motion, and unresponsiveness to normal treatment. Dr. Hanley advised that 

appellant could work eight hours a day with permanent restrictions. 

Appellant continued treatment with Dr. Bruno and Dr. Galapo. On August 14, 2008 

Dr. Bruno advised that she could work a four-hour day of limited duty. 

By letter dated August 28, 2008, the employing establishment advised appellant that 

medical evidence revealed she was capable of returning to part-time work effective 

 3

 An October 9, 2006 electrodiagnostic study of the upper extremities was mildly abnormal, consistent with mild 

nerve root irritation to either the C5-6 nerve root or to the upper brachial plexus trunk on the left. 
3

August 25, 2008. It offered her the position of a part-time customer service representative. On 

August 29, 2008 appellant accepted the modified customer service representative position for 

four hours daily. 

OWCP next referred appellant to Dr. Raoul Biniaurishvili, a Board-certified neurologist. 

On September 3, 2008 Dr. Biniaurishvili diagnosed mild degenerative cervical spine disease, 

myofasciitis of the cervical paraspinal musculature, and tension headaches. He advised that 

appellant could continue working as a customer service representative and could gradually 

increase her work hours. 

By decision dated October 28, 2008, OWCP determined that appellant’s actual earnings 

in the part-time modified customer service representative position fairly and reasonably 

represented her wage-earning capacity and reduced her compensation accordingly.4

 

Appellant received a third-party settlement regarding the September 14, 2005 

employment injury. She continued treatment with Dr. Bruno and Dr. Galapo. 

In reports dated November 4 and 7, 2014, Dr. Bruno noted appellant’s complaint of neck 

pain radiating into her head with severe headaches, bilateral arm pain, and increasing vertigo. 

He diagnosed worsening C5-6 and C6-7 herniated disc, recommended surgery, and advised that 

she could not work from November 4, 2014 to March 1, 2015 due to the herniated discs from C5 

to C7. 

Appellant stopped work on November 4, 2014 and filed Form CA-7 claims for 

compensation beginning that day. Dr. Bruno continued to advise that she could not work. 

Dr. Stephen J. Dante, a Board-certified neurosurgeon, examined appellant on 

February 10, 2015. He reviewed imaging studies and diagnosed cervical spondylosis with 

radiculopathy. Dr. Dante concluded that a treatment option would be cervical decompression 

and fusion surgery. 

In February 2015, OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified 

orthopedic surgeon, for a second-opinion evaluation. In a February 27, 2015 report, Dr. Smith 

opined that there were no objective examination findings to support her complaints and nothing 

to suggest an ongoing soft tissue sprain of the neck or any active neuritis/radiculitis in the 

extremities, and that, based on multiple MRI scan reports, she had preexisting degenerative 

disease of both her neck and back. He advised that appellant could return to work with regard to 

the accepted conditions. On April 8, 2015 Dr. Smith advised that, as the findings of the 

October 9, 2006 electrodiagnostic study were mild and more than eight years old,5

 it would be 

inappropriate to base any decision on surgery without an updated study showing a progressive 

neurological deficit. 

 4

 In a September 15, 2008 decision, OWCP determined that an overpayment of compensation in the amount of 

$277.72 was created because appellant continued to receive FECA compensation after her return to work on 

August 25, 2008. Appellant repaid the overpayment. 

5 Supra note 3. 
4

In reports dated March 26 to April 3, 2015, Dr. James S. Harrop, a Board-certified 

neurosurgeon, noted seeing appellant for a long history of chronic neck and arm pain. He 

described physical examination and MRI scan findings. Dr. Harrop diagnosed cervical 

myelopathy and recommended anterior cervical fusion at C5-6 and C6-7. He requested surgical 

authorization. 

OWCP determined that a conflict in medical evidence had been created between 

Dr. Bruno and Dr. Smith regarding whether appellant had continuing residuals of the 

September 14, 2005 employment injury. In April 2015, it referred her to Dr. William H. Simon, 

a Board-certified orthopedic surgeon, for an impartial evaluation. In a June 7, 2015 report, 

Dr. Simon described appellant’s complaints and his physical examination findings. He 

diagnosed degenerative disc disease of the cervical spine, particularly at C5-6, with mild 

degenerative changes at C4-5 and C6-7, which had worsened with the passage of time, noting 

that it had been 10 years since the September 14, 2005 work injury.6

 Dr. Simon concluded that 

the requested surgery, which was scheduled for June 8, 2015, was not for an employment-related 

condition, but for her underlying degenerative disc disease. 

In a May 14, 2015 report, Dr. Bruno noted treating appellant since 2005 for neck and arm 

pain from a cervical disc herniation that also caused cervical vertigo and migraine headaches, 

and that, as of November 4, 2014, her disc herniations were worsening. He opined that, within a 

reasonable degree of medical certainty, she had herniated cervical discs at C5-6 and C6-7, which 

required surgery to prevent further deterioration in her clinical condition, further nerve damage 

and increase in symptoms of neck pain, arm pain, weakness, and numbness. 

Dr. Harrop performed C5-6 and C6-7 anterior cervical discectomy and fusion on 

June 8, 2015. 

By decision dated July 1, 2015, OWCP denied modification of the October 28, 2008 loss 

of wage-earning capacity decision. It found that the weight of the medical evidence rested with 

the opinion of Dr. Simon, the referee examiner, who determined that appellant’s employment 

injury had resolved without residuals and that she could return to her modified part-time work, 

with regard to the accepted conditions. 

 6

 Appellant had a number of magnetic resonance imaging (MRI) scans of the cervical spine. An October 13, 

2005 scan demonstrated mild disc bulges and spurring at C4-5, C5-6, and C6-7 with possible foraminal 

encroachment. A September 26, 2006 scan showed disc bulging and spondylotic changes at C4-5, C5-6, and C5-7 

with mild ventral impingement and mild multilevel encroachment. A May 16, 2007 scan demonstrated no major 

change from the September 26, 2006 study. An April 12, 2011 scan showed multilevel spondylosis resulting in 

multilevel neural foraminal stenosis and no evidence of frank disc herniation. An April 13, 2012 scan demonstrated 

no significant change when compared to the April 2011 study. A September 4, 2014 scan showed left foraminal 

stenosis at C6-7 due to an eccentric disc bulge, a prominent right disc herniation at C5-6, and right foraminal 

stenosis at C4-5. A cervical spine scan on April 14, 2015 demonstrated degenerative changes including tiny right 

disc protrusions at C4-5 and C5-6. A cervical spine computerized tomography scan that day revealed mild-tomoderate degenerative changes with no high-grade central or foraminal narrowing. 
5

LEGAL PRECEDENT 

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

injury sustained while in the performance of his or her duty.7

 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.8

 

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

remains undisturbed until properly modified.9 OWCP procedures at section 2.1501 contain 

provisions regarding the modification of a formal loss of wage-earning capacity.10 The relevant 

part provides that a formal loss of wage-earning capacity will be modified when: (1) the original 

rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the 

claimant has been vocationally rehabilitated.11 

OWCP’s procedures provide that factors to be considered in determining whether the 

claimant’s work fairly and reasonably represents his or her wage-earning capacity include the 

kind of appointment, that is, whether the position is temporary, seasonal or permanent, and the 

tour of duty, that is, whether it is part time or full time.12 Further, a makeshift or odd-lot position 

designed for a claimant’s particular needs will not be considered suitable.13

In the case of O.V.,14 the Board found that OWCP abused its discretion when it 

determined that the claimant’s actual earnings in part-time reemployment fairly and reasonably 

represented his or her capacity to earn wages in the open labor market. The Board explained that 

OWCP procedures prohibited a loss of wage-earning capacity determination based on part-time 

reemployment unless the claimant was a part-time worker at the time of injury.15

 7

 5 U.S.C. § 8102(a). 

8

 20 C.F.R. § 10.5(f). 

9 Katherine T. Kreger, 55 ECAB 633 (2004). 

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

2.1501 (June 2013). 

11 Id. at Chapter 2.1501.3(a). 

12 Id. at Chapter 2.815.5.c(1). 

13 Id. at Chapter 2.815.5.c(2)(a). 

14 Docket No. 11-0098 (issued September 30, 2011). 

15 Id. 
6

ANALYSIS 

OWCP accepted that on September 14, 2005 appellant sustained brachial 

neuritis/radiculitis, thoracic/lumbar neuritis/radiculitis, and cervical sprain. In an October 28, 

2008 decision, it reduced her compensation based on its determination that her actual earnings in 

the modified part-time position of customer service representative fairly and reasonably 

represented her wage-earning capacity. Appellant continued to work in the modified position 

until November 4, 2015 when she stopped work on the advice of Dr. Bruno, her attending 

neurosurgeon. 

By decision dated July 1, 2015, OWCP denied modification of the October 28, 2008 loss 

of wage-earning capacity decision. It found that the special weight of the medical evidence 

rested with the opinion of Dr. Simon, the referee examiner, who had determined that appellant’s 

employment injury had resolved without residuals and that she could return to her modified parttime work, with regard to the accepted conditions. 

OWCP procedures that were in effect at the time of OWCP’s original wage-earning 

capacity determination prohibited a loss of wage-earning capacity determination based on parttime reemployment where the claim, as here, was a full-time worker at the time of injury.16 Its 

procedures were changed effective June 4, 2013, to allow that, in some circumstances, a loss of 

wage-earning capacity determination could be based on actual earnings in a part-time position, 

even if the date-of-injury position was full time. OWCP did not specify that the new procedures 

contemplated retroactive application.17 Chapter 2.815.5c(1)(b)(ii) of the new procedures 

provides that OWCP’s policy change is consistent with the statutory purpose of section 8115 of 

FECA, which anticipates loss of wage-earning capacity determination for partial disability based 

on actual earnings where those earnings fairly and reasonably represent the injured employee’s 

wage-earning capacity.18 Since OWCP did not clearly indicate its intention to retroactively 

apply the new procedures, the Board finds that these procedures do not apply to appellant’s 

wage-earning capacity in the case at hand.19

A basis for modifying a loss of wage-earning capacity decision is to establish that the 

original decision was in error.20 The Board finds that, under the facts of this case, appellant was 

a full-time worker on the day of injury, it was error for OWCP to determine on October 28, 2008 

that a part-time modified position fairly and reasonably represented her wage-earning capacity. 

The Board finds, therefore, that OWCP abused its discretion in determining appellant’s loss of 

 16 See supra note 10 at Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a 

(July 1997). 

17 Id. at Chapter 2.815.5.c(1)(b)(2) (June 2013); see FECA Transmittal 13-09 (issued June 4, 2013). 

18 Id. 

19 See R.R., Docket No. 15-0129 (issued December 28, 2015). 

20 Supra note 10 at Chapter 2.1501.4 (June 2013). 
7

wage-earning capacity based on a part-time position.21 The Board will reverse OWCP’s July 1, 

2015 decision.22

CONCLUSION 

The Board finds that OWCP abused its discretion when it found that appellant’s actual 

earnings in part-time reemployment fairly and reasonably represented her wage-earning capacity. 

ORDER 

IT IS HEREBY ORDERED THAT the July 1, 2015 decision of the Office of Workers’ 

Compensation Programs is reversed. 

Issued: September 25, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 See O.V., Docket No. 11-98 (issued September 30, 2011). 

22 Based on the Board’s posture in this decision, appellant’s additional arguments on appeal need not be 

addressed.