United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Atlanta, GA, Employer

__________________________________________

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Docket No. 19-0692

Issued: November 18, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 11, 2019 appellant, through counsel, filed a timely appeal from a January 9, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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.3

ISSUE

The issue is whether appellant has met his burden of proof to modify a November 18, 2015 

loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On December 21, 2012 appellant, then a 51-year-old sales service associate/distribution 

clerk, filed a traumatic injury claim (Form CA-1) alleging that on December 4, 2012 he injured his 

lower back while lifting a bucket of flats while in the performance of duty. He stopped work on 

December 15, 2012. OWCP accepted the claim for intervertebral disc disorder with myelopathy 

lumbar region, L5-S1, left. On June 19, 2013 appellant underwent OWCP-approved surgical 

intervention for left L5-S1 disc herniation causing L5-S1 nerve root compression. OWCP paid 

appellant compensation on the supplemental rolls commencing February 9, 2013 and on the 

periodic rolls commencing May 5, 2013.4

On April 1, 2015 appellant returned to work at the employing establishment in a full-time, 

limited-duty capacity as a sales solution team member with wages of $56,971.00 per year. The 

job involved contacting customers by telephone (intermittent six to eight hours), light data input 

(intermittent four hours), answering telephones (intermittent six to eight hours), and back office 

administrative assistance defined duties (intermittent eight hours). The job was sedentary in nature 

and involved sitting in an office chair with supportive back, occasional standing, simple grasping 

and pushing/pulling computer mouse, fine manipulation of keyboard, with lifting no more than 

five pounds, and speaking on the telephone.

By decision dated November 18, 2015, OWCP found that appellant’s position on the sales 

solution team fairly and reasonably represented his wage-earning capacity. It noted that he had 

performed the position for more than 60 days. OWCP also found that, as his actual earnings met 

or exceeded the current wages of the job he held on the date of injury, appellant had no loss in 

earning capacity. Thus, it terminated appellant’s wage-loss compensation benefits. Appellant’s

entitlement to medical benefits continued.

In a March 16, 2017 duty status report (Form CA-17), Dr. Zouheir A. Shama, a general 

surgeon, diagnosed left lumbar disc disorder with myopathy. He opined that appellant could work 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the January 9, 2019 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.

4 The record reflects that OWCP had accepted a prior July 28, 2005 claim under OWCP File No. xxxxxx915 for 

herniated nucleus pulposus at L5-S1.
3

eight hours a day and five days a week with a 25-pound lifting restriction. Dr. Shama noted that 

appellant should have consecutive days off and would need a break every hour from standing and 

sitting.5

Appellant stopped work again on March 31, 2018. On April 13, 2018 he filed a claim for 

compensation (Form CA-7), for disability from work commencing March 31, 2018 and 

continuing. A March 30, 2018 PS Form 3971 (Request for or Notification of Absence) noted “IOD 

-- No Accommodations.”

In an April 24, 2018 development letter, OWCP informed appellant that it appeared he was 

requesting modification of its November 18, 2015 LWEC determination. It advised him of the 

criteria for modifying a formal LWEC determination, including showing that there was a material 

change in the nature and extent of his injury-related condition, that he had been retrained or 

otherwise vocationally rehabilitated, or that the original determination was, in fact, erroneous. 

OWCP afforded appellant 30 days to submit additional evidence in support of his claim.

In a February 20, 2018 reevaluation note, Dr. Shama diagnosed lumbar degenerative disc 

changes, left leg sciatica symptoms and extending to left foot, continuous pain status post June 18, 

2013 left hemilaminectomy, and left lumbar disc myelopathy.

In a March 29, 2018 duty status report (Form CA-17), Dr. Shama related a diagnosis of left 

lumbar disc disorder with myelopathy, noted that appellant could not return to his date-of-injury 

position, but indicated that appellant could sit for up to eight hours, and stand intermittently for 

eight hours a day. He also indicated that appellant should have two consecutive days off and would 

need a break from standing/sitting. No weight restrictions were provided. 

Progress notes dated April 18 and May 16, 2018 signed by Stephanie Stagner, a nurse 

practitioner, were also submitted.

OWCP received a copy of an April 21, 2018 job offer for a full-time modified sales and 

service distribution associate, with consecutive days off on Sunday and Monday. The duties of 

the position involved performing sales and customer duties service at retail window, distribute/sort 

scheme mail to carrier routes, and distribute/sort P.O. Box mail to customers for three to four hours 

a day and “process RFS mail” one to two hours a day. The position required continuous sitting, 

intermittent standing, and intermittent pushing/pulling up to eight hours a day. Appellant rejected 

 

5 On March 16, 2017 the employing establishment offered appellant a full-time modified position as a sales and 

service distribution associate, effective March 18, 2017. Appellant rejected the position on March 22, 2017, claiming 

it violated his doctor’s recommendations for consecutive days off. He stopped work on March 23, 2017 and filed 

Form CA-7 claims for compensation for the period March 18, 2017 and continuing. By decision dated June 13, 2017, 

OWCP denied appellant’s claim for compensation for the period March 23, 2017 and continuing for a recurrence of 

disability. On June 23, 2017 appellant requested reconsideration of OWCP’s June 13, 2017 decision. In a July 17,

2017 development letter, OWCP advised appellant of the criteria for modifying a formal LWEC determination and 

afforded him 30 days to submit additional evidence. By decision dated September 27, 2017, it affirmed, the June 13, 

2017 decision as modified, finding that appellant failed to meet his burden of proof to modify the November 18, 2015 

LWEC determination.
4

the position indicating that his medical restrictions mandated that the physical work requirements

be sedentary in nature.

By decision dated June 26, 2018, OWCP denied appellant’s claims for compensation,

finding that he had not met his burden of proof to modify the November 18, 2015 LWEC 

determination. It noted that Dr. Shama had increased appellant’s weight limit to 25 pounds on his 

July 6, 2017 Form CA-17 and Dr. Shama’s March 29, 2018 Form CA-17 was unclear as to 

whether appellant was at a sedentary or medium work capacity. OWCP indicated that the April 21, 

2018 job offer was based on the March 29, 2018 Form CA-17, which fell within sedentary 

capacity. 

Appellant continued to submit CA-7 claims for compensation claiming no accommodation 

for the period April 16, 2018 and continuing.

On July 10, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on November 5, 2018. He argued that the issue 

was a recurrence of disability as appellant experienced a change in his employment duties on 

March 30, 2018, when his job was no longer sedentary in nature and appellant would be required 

to stand while working. 

OWCP received job offers dated July 9 and 12, 2018.

6

Dr. Shama continued to submit Form CA-17 duty status reports, noting appellant’s 

restrictions. On May 10, 2018 he related that appellant could lift from 5 to 10 pounds eight hours

a day, sit for eight hours a day, and stand intermittently for eight hours a day. On August 28 and 

September 25, 2018 Dr. Shama related that appellant needed to take intermittent breaks between 

sitting and standing, and should have two consecutive days off.

OWCP also received progress notes dated from June 24 through September 6, 2018 from

Dr. Chad Achilles, Board-certified in anesthesiology and pain medicine, and Dr. Rodrigo Duralde, 

Board-certified in anesthesiology. These reports related appellant’s pain complaints and related 

that appellant was seen for routine evaluation and medication refill.

OWCP also received reports from Dr. Kamal C. Kabakibou, a Board-certified 

anesthesiologist, regarding appellant’s work restrictions. In a report dated July 31, 2018,

Dr. Kabakibou noted appellant’s medical history. He related appellant’s physical examination 

findings and diagnosed postlaminectomy syndrome and left side sciatica. Dr. Kabakibou 

concluded that appellant could perform light-duty work for eight hours a day, while sitting. OWCP

also received progress notes from Dr. Kabakibou from August 28, 2018 through January 11, 2019 

wherein he reiterated appellant’s diagnoses and noted appellant’s pain complaints.

Appellant continued to submit Form CA-7 claims for compensation for the period 

commencing September 1, 2018.

 

6 Appellant accepted the July 12, 2018 job offer on July 17, 2018. 
5

By decision dated January 9, 2019, an OWCP hearing representative affirmed the June 26, 

2018 OWCP decision denying appellant’s claims for compensation for disability from work 

commencing March 31, 2018. He found that appellant had not established any of the criteria for 

modifying its formal November 18, 2015 LWEC determination. 

LEGAL PRECEDENT

Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages 

received by an employee if the earnings fairly and reasonably represent his or her wage-earning 

capacity. Generally, wages actually earned are the best measure of wage-earning capacity and, in 

the absence of evidence showing that they do not fairly and reasonably represent the injured 

employee’s wage-earning capacity, must be accepted as such measure.7 A determination regarding 

whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be 

made only after an employee has worked in a given position for at least 60 days.8 Wage-earning 

capacity may not be based on an odd-lot or make-shift position designed for an employee’s 

particular needs, a temporary position when the position held at the time of injury was permanent, 

or a position that is seasonal in an area where year-round employment is available.9

Once the wage-earning capacity of an injured employee 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.10 OWCP’s procedures provide 

that, “[i]f a formal [LWEC] decision has been issued, the rating should be left in place unless the 

claimant requests resumption of compensation for total wage loss. In this instance, the CE [claims 

examiner] will need to evaluate the request according to the customary criteria for modifying a 

formal [LWEC].”

11

 The burden of proof is on the party attempting to show a modification of the 

wage-earning capacity determination.12

When a formal LWEC determination is in place and light duty is withdrawn, the proper 

standard of review is not whether appellant sustained a recurrence of disability, but whether OWCP 

 

7 E.W., Docket No. 14-0584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Wages, Chapter 2.815.5 (June 2013).

9 See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, id. at Chapter 

2.815.5c (June 2013).

10 J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,

45 ECAB 211 (1993).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Modification of Loss of Wage-Earning 

Capacity Decisions, Chapter 2.814.9(a) (June 2013). See M.F., Docket No. 18-0323 (issued June 25, 2019); Harley 

Sims, Jr., 56 ECAB 320 (2005).

12 See J.A., Docket No. 18-1586 (issued April 9, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009). 
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should modify its decision according to the established criteria for modifying a formal LWEC 

determination.13

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify the November 18, 

2015 LWEC determination.

The evidence of record reflects that appellant began performing the duties of a sales 

solution team member on or about March 30, 2015 and continued to perform such duties for almost 

two years until the position was abolished on March 20, 2017. There is no evidence of record to 

support that the LWEC determination was in anyway erroneous in nature. There is also no 

evidence that appellant has been retrained or otherwise vocationally rehabilitated.14

Additionally, there is no medical evidence of record to support that appellant sustained a 

material change in the nature or extent of his injury-related condition on and after March 31, 2018, 

when he stopped work, such that he could not perform the duties of the sedentary sales solution 

team member position, which was the basis of his LWEC.

15

 

In a March 29, 2018 Form CA-17, Dr. Shama diagnosed left lumbar disc disorder with

myelopathy. He noted that, while appellant was unable to perform his date-of-injury position, he 

was capable of performing sedentary work, with intermittent standing eight hours a day. OWCP 

thereafter continued to receive CA-17 forms from Dr. Shama. In a form dated May 10, 2018,

Dr. Shama related that appellant could lift from 5 to 10 pounds for eight hours a day, sit for eight 

hours a day, and stand intermittently for eight hours a day. On August 28 and September 25, 2018 

he related that appellant needed to take intermittent breaks between sitting and standing. 

Dr. Shama’s reports do not establish, with medical rationale, that appellant had experienced a 

worsening of the accepted medical conditions with no intervening injury resulting in new or 

increased work-related disability.16 He did not explain that appellant’s medical condition after 

March 31, 2018 had worsened such that he could not perform the duties of the sedentary sales 

solution team member position, which allowed for occasional standing. These reports are thus 

insufficient to warrant modification of the LWEC determination.

Reports dated from June 24 through September 6, 2018 indicate that appellant was seen 

for pain medication refills by Drs. Achilles and Duralde. These reports do not provide any 

rationalized medical opinion that appellant’s medical condition had materially worsened to cause 

 

13 C.P., Docket No. 11-1459 (issued February 7, 2012); Tamra McCauley, 51 ECAB 375, 377 (2000); T.M., id.

14 Supra note 10. 

15 See D.T., Docket No. 18-0174 (issued August 23, 2019). 

16 Id. 
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further disability; therefore, they are insufficient to establish that appellant’s LWEC determination

should be modified.17 

OWCP also received a series of progress reports from Dr. Kabakibou, which related 

appellant’s physical examination findings, and diagnosed postlaminectomy syndrome and left side 

sciatica. In his July 31, 2018 report, Dr. Kabakibou related that appellant could perform light duty, 

eight hours a day, while sitting. In his subsequent reports dated from August 28, 2018 through 

January 11, 2019, he noted appellant’s pain complaints and reiterated his diagnoses. Insofar as

Dr. Kabakibou related that appellant could perform light work, his reports indicate that appellant’s 

condition had improved, rather than worsened. Again, as hisreports did not establish that appellant 

sustained a material worsening of his accepted employment-related conditions, such that he was 

precluded from performing his LWEC position, they are insufficient to establish that the LWEC

determination should be modified.18

Appellant also submitted reports signed solely by a nurse practitioner. These reports do 

not constitute competent medical evidence because nurse practitioners are not considered 

“physician[s]” as defined under FECA.19 Consequently, the medical findings and/or opinions of 

a nurse practitioner will not suffice for purposes of establishing entitlement to compensation 

benefits.20

The Board finds that, for these reasons, appellant has not met his burden of proof to modify 

OWCP’s November 18, 2015 LWEC determination based upon a material worsening of his 

accepted conditions.

On appeal counsel argues that the issue in this case concerns a recurrence of disability, not

modification of an LWEC because appellant’s LWEC position was withdrawn. OWCP’s hearing 

representative found and the factual evidence of record supports that appellant was offered a new 

modified position, which effectively withdrew his sedentary position, effective March 31, 2018. 

OWCP procedures provide that, when the employing establishment has withdrawn a light-duty 

assignment, which accommodated the claimant’s work restrictions and a formal wage-earning 

capacity decision has been issued, the decision will remain in place, unless one of the three 

accepted reasons for modification applies.21 The Board has also previously explained that absent 

a showing that the wage-earning capacity should be modified, appellant has no disability under 

FECA and is not entitled to compensation for wage loss based on the withdrawal of his limited-

 

17 Id. 

18 B.S., Docket No. 19-0515 (issued July 25, 2019). 

19 See R.C., Docket No. 19-0376 (issued July 15, 2019); S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a 

nurse practitioner is not a physician under FECA). A report from a nurse practitioner will be considered medical 

evidence only if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013). Under FECA the term “physician” includes surgeons, podiatrists, 

dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their 

practice as defined by the applicable state law.

20 See id.

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2(c) (June 2013). 
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duty position.22 Accordingly, the Board finds that appellant has not met his burden of proof to 

modify the November 18, 2015 LWEC determination.

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met his burden of proof to modify the November 18, 

2015 LWEC determination.

ORDER

IT IS HEREBY ORDERED THAT the January 9, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 18, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

22 S.L., Docket No. 10-1478 (issued February 10, 2011); K.R., Docket No. 09-415 (issued February 24, 2010).