United States Department of Labor

Employees’ Compensation Appeals Board

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B.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Lexington, KY, Employer

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Docket No. 18-1654

Issued: August 20, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On August 30, 2018 appellant filed a timely appeal from a July 25, 2018 decision of the 

Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards

docketed the appeal as No. 18-1654.

This case has previously been before the Board.1 The facts of the case as set forth in the 

prior Board order are incorporated herein by reference. The relevant facts are as follows.

On April 22, 2004 appellant, then a 49-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained injuries to her neck and right upper extremity due 

to her federal employment duties on or about April 20, 2004. OWCP accepted appellant’s claim 

for disc herniation at the C6-7 level with radiculopathy and approved anterior cervical 

discectomy/fusion surgery at C6-7 which was performed on September 30, 2004.

Commencing June 7, 2006, the Office of Personnel Management granted appellant a 

disability retirement annuity. In December 2009, OWCP expanded the accepted conditions in 

appellant’s claim to include C5-6 herniated disc with degenerative changes. Additionally, it found 

 

1 Order Remanding Case, Docket No. 16-1761 (issued December 21, 2016).
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appellant entitled to disability compensation retroactive to April 24, 2008 and placed her on the 

periodic compensation rolls.

Appellant participated in a vocational rehabilitation program and, in March 2012, her 

rehabilitation counselor determined that she was capable of earning wages in the constructed 

position of receptionist. The physical requirements of the receptionist position were deemed to be 

within the work restrictions recommended on October 25, 2012 by Dr. Theodore T. Le, a Boardcertified orthopedic surgeon serving as an OWCP referral physician. 

On May 17, 2013 OWCP issued a formal loss of wage-earning capacity (LWEC) 

determination based upon appellant’s ability to earn $318.00 per week as a receptionist. 

Appellant’s compensation was adjusted commencing June 2, 2013 based on this LWEC 

determination. By decisions dated July 15, 2014 and February 9, 2015, OWCP denied 

modification of the May 17, 2013 LWEC determination.

On February 12, 2016 appellant requested reconsideration and she submitted medical 

evidence from her attending Board-certified anesthesiologists, including a December 11, 2014 

report of Dr. Mark A. Deloma and a September 10, 2015 report of Dr. Karim Rasheed. She argued 

that these reports showed that she could no longer work as a receptionist.

By decision dated February 29, 2016, OWCP refused to reopen appellant’s case for further 

review of the merits of her claim because the February 12, 2016 request for reconsideration was 

untimely filed and appellant had failed to demonstrate clear evidence of error.

Appellant appealed the February 29, 2016 decision to the Board and, by order dated 

December 21, 2016,2the Board set aside the February 29, 2016 decision and remanded the case to 

OWCP for further development. The Board found that appellant had raised the issue of whether 

modification of the May 17, 2013 LWEC determination was warranted and directed OWCP to 

consider this matter on remand and issue an appropriate decision.

On remand, OWCP issued an April 12, 2017 decision in which it determined that appellant 

had not met her burden of proof to modify its May 17, 2013 LWEC determination. 

On July 10, 2018 appellant requested reconsideration through an appeal request form. In 

a July 2, 2018 letter received on July 10, 2018, appellant argued that her employment-related 

medical condition had materially changed such that modification of OWCP’s May 17, 2013 

LWEC determination was warranted. 

Appellant submitted a number of medical reports, including a January 11, 2018 report from

Dr. Robert D. Owens, an attending Board-certified neurosurgeon, who indicated that appellant 

complained of left-sided neck pain which radiated into her left hand. Dr. Owens diagnosed 

cervical disc disorder with radiculopathy and recommended anterior cervical discectomy/fusion 

surgery at C5-6. In an April 23, 2018 report, Dr. John J. Vaughan, an attending Board-certified 

orthopedic surgeon, noted that appellant reported experiencing increased cervical pain which 

radiated into her left arm. Dr. Vaughan indicated that a December 1, 2017 magnetic resonance 

 

2

Id.
3

imaging (MRI) scan of appellant’s cervical spine showed a moderate disc herniation at C5-6 which 

was not present in a 2013 cervical spine MRI scan.3 He recommended anterior cervical 

discectomy/fusion surgery at C5-6.

By decision dated July 25, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of her claim, finding that the July 10, 2018 request was untimely filed and failed to 

demonstrate clear evidence of error. 

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.4 A wage-earning capacity 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.5 Compensation 

payments are based on the wage-earning capacity determination, and OWCP’s finding remains 

undisturbed until properly modified.6 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.7 The burden of proof is on the party seeking modification of the LWEC

determination.8

OWCP’s procedure manual provides, “If a formal LWEC decision has been issued, and the 

claim is for recurrent disability, it should be processed in accordance with procedures for 

modifying a formal LWEC.”

9

OWCP determined, by its decision dated July 25, 2018, that appellant had filed a request 

for reconsideration of its April 12, 2017 decision. The Board finds that the issue presented was 

whether the May 17, 2013 LWEC determination should be modified. Appellant submitted 

evidence which she believed demonstrated a worsening of her accepted medical conditions. The 

Board has held that, when an LWEC determination has been issued, and the claimant submits 

 

3 Appellant submitted a copy of the December 1, 2017 MRI scan.

4 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see C.C., Docket No. 18-1127 (issued January 19, 2019).

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

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

7 20 C.F.R. § 10.511; see E.H., Docket No. 17-0963 (issued August 24, 2018); Federal (FECA) Procedure Manual, 

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

8 20 C.F.R. § 10.511.

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013).
4

evidence with respect to disability from work, OWCP must evaluate the evidence to determine if 

modification of the prior LWEC determination is warranted.10

The Board finds that appellant’s claim for compensation raised the issue of whether 

modification of the May 17, 2013 LWEC determination was warranted. The case must therefore

be remanded to OWCP for a de novo decision on this issue. Accordingly,

IT IS HEREBY ORDERED THAT the July 25, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this order of the Board.

Issued: August 20, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

10 See Katherine T. Kreger, supra note 6. The Board notes that consideration of the modification issue does not 

preclude OWCP from acceptance of a limited period of employment-related disability, without a formal modification 

of the LWEC determination. See id.