United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.L., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION PLANT, Denver, CO, Employer 

__________________________________________ 

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Docket No. 15-1963 

Issued: September 9, 2016 

Appearances: Case Submitted on the Record

Gregory A. Hall, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 29, 2015 appellant, through counsel, filed a timely appeal of an April 8, 

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. 

ISSUE 

The issue is whether appellant met his burden of proof to modify the April 2, 2013 loss of 

wage-earning capacity determination. 

                                                             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

On appeal counsel argues that the April 2, 2013 loss of wage-earning capacity 

determination was erroneously issued. 

FACTUAL HISTORY 

On August 31, 2010 appellant, then a 38-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that on August 23, 2010 he first became aware of the 

relationship between his lumbar back condition and factors of his federal employment. He 

stopped work on August 24, 2010. OWCP accepted the claim for lumbar intervertebral disc 

displacement without myelopathy and aggravation of lumbar radiculitis. It authorized surgery, 

which was performed on October 25, 2010. Appellant received wage-loss compensation 

benefits. 

By letter dated May 3, 2011, OWCP placed appellant on the periodic rolls for temporary 

total disability. 

On October 18, 2011 Dr. Lawrence A. Lesnak, a treating, osteopath and Board-certified 

physiatrist, recommended a functional capacity evaluation (FCE). On November 3, 2011 

appellant underwent a FCE to determine his work capability and restrictions. The results noted 

his ability to perform 28 minutes of sustained sitting, 25 minutes of sustained standing, 14 

minutes of sustained walking, up to 13 pounds maximum bilateral lifting of 1 lift every 

2 minutes from floor to waist, and 23 pounds from waist to shoulder, maximum bilateral lift of 

1 lift every 5 minutes of 15 pounds from floor to waist and from shoulder to overhead, and 

maximum occasional lifting of 1 lift every 30 minutes of 40 pounds from floor to knuckle, 

30 pounds from knuckle to shoulder and from shoulder to overhead. It further noted that 

appellant’s lifting requirement fell within, but did not fully meet a medium work category. 

In a report dated November 16, 2011, Dr. Lesnak reviewed the November 3, 2011 FCE 

and provided work restrictions. The restrictions included: lifting only up to 35 to 40 pounds 

from the floor to overhead, frequent floor to overhead lifting up to 15 to 20 pounds, and 

avoidance of repetitive twisting or bending. Dr. Lesnak noted that there was no specific 

evidence suggesting limitations on standing and walking although it would be reasonable for 

appellant to be able to change his position every hour. In an attached OWCP work capacity 

evaluation form (OWCP-5c), he indicated that appellant had permanent work restrictions on 

walking and sitting up to one hour, up to two to four hours of stooping, and pushing, pulling, and 

lifting up to 20 pounds. 

On January 31, 2012 appellant was referred for vocational rehabilitation based on work 

restrictions provided by Dr. Lesnak. The certified rehabilitation counselor recommended a 

90-day job placement plan and noted that appellant could perform light-physical demand 

category eight hours per day with restrictions of ability to walk/stand hourly with brief breaks, 

two to four hours of stooping/bending, occasional pushing/pulling up to 120 pounds, occasional 

lifting of 35 to 40 pounds, frequent lifting of 15 to 20 pounds, squatting two to four hours daily, 

and up to four hours of kneeling daily. A rehabilitation plan was prepared with the objective of 

obtaining a position of bank teller or receptionist with weekly wages of $400.00 to $440.00 for a 

bank teller or $320.00 to $330.00 for a receptionist. The rehabilitation counselor stated that 

these jobs were within appellant’s educational capabilities based on vocational testing services. 

Appellant related that he had excellent communication skills and self-taught computer skills. 
3

The rehabilitation counselor noted that these positions were reasonably available in his 

commuting area and attached job classification for the positions. Appellant signed the Individual 

Rehabilitation Job Search Plan and Agreement on April 11, 2012 and agreed that he met the 

qualifications for a bank teller and receptionist based on prior work and educational experience. 

An April 5, 2012 labor market survey for bank teller noted that the bank teller position 

was light-duty work with occasional lifting of up to 20 pounds, frequent lifting of up to 

10 pounds, no climbing, balancing, kneeling or crawling, and occasional stooping and crouching. 

The demands for sitting, standing, and walking were not indicated. The survey noted that the 

position required six months to one year of specific vocational preparation, which appellant met 

based on his successful completion of Denver Business College, his self-acknowledged good 

math skills, and excellent customer service and communication skills. The report also noted that 

reasonable accommodations were discussed with employing establishment employers’, such as 

alternate sitting/standing options, to enable him to perform the position. 

In a May 4, 2012 rehabilitation action report, the rehabilitation counselor noted that 

appellant was obstructing rehabilitation as he failed to carry out agreed upon actions and failed to 

appear for scheduled meetings. She related that he informed her that he was totally disabled and 

unable to participate in vocational rehabilitation. 

In a May 16, 2012 report, Dr. Lesnak noted meeting with appellant. Although there was 

no physical examination, he noted reviewing objective findings, diagnoses, appellant’s 

symptoms and counseling appellant on his prognosis and treatment options. Under 

recommendations, Dr. Lesnak reported that appellant continued having significant L5-S1 disc 

pathology, worsening electrodiagnostic study, worsening functional status, and progressive low 

back, and right leg symptoms. 

In an August 8, 2012 report, Dr. Lesnak found appellant able to work full time with 

current work restrictions of no frequent lifting more than 10 to 15 pounds; no intermittent lifting 

more than 25 to 30 pounds; a five-minute break after one hour of continuous walking/standing 

activities; refrain from frequent bending, twisting at the waist or kneeling activities, and no 

pushing/pulling more than 50 pounds intermittently. 

A September 18, 2012 report of the vocational rehabilitation counselor noted that the 

90-day placement services had expired with no participation by appellant. She noted that he had 

stopped responding to her attempted contacts. The rehabilitation counselor recommended 

closing the file due to appellant’s failure to participate in vocational rehabilitation. 

In an October 2, 2012 memorandum, the vocational rehabilitation specialist advised that 

the market was favorable for a bank teller, and that the positions were readily available in 

sufficient numbers in appellant’s commuting area. The average weekly wages of a bank teller, 

(U.S. Department of Labor, Dictionary of Occupational Titles (DOT) No. 211.362.018) at the 

high end was $440.00 based upon college business coursework and work experience. The 

rehabilitation specialist further noted that Dr. Lesnak opined that appellant was capable of 

working full time with restrictions and that the latest report, dated August 8, 2012, noted frequent 

lifting restrictions of 10 to 15 pounds and occasional lifting of 25 to 30 pounds, which were 

within the restrictions of the bank teller position. 
4

On February 8, 2013 OWCP issued a notice proposing to reduce appellant’s 

compensation as the position of bank teller was medically and vocationally suitable for him and 

represented his wage-earning capacity. It advised him that he had the capacity to earn wages as a 

bank teller, (DOT No. 211.362.018,) a light-work position, at a rate of $440.00 per week, in 

accordance with the factors outline in 5 U.S.C. § 8115(a).3

 OWCP calculated that appellant’s 

compensation should be adjusted to $430.40 using the Shadrick4

 formula. It indicated that the 

monthly salary for his job when injured was $1,024.77, that the current monthly salary for his 

job and step as of February 7, 2013 was $1,056.20 and that he was currently capable of earning 

$440.00 per week, as a bank teller. OWCP therefore determined that appellant had a 75 percent 

wage-earning capacity. It found that his current adjusted compensation rate per four-week 

period was $1,840.00. OWCP stated that the case had been referred to a vocational rehabilitation 

counselor who determined that the bank teller position was suitable for appellant, given his work 

restrictions, and was reasonably available in his commuting area. It allowed him 30 days in 

which to submit any contrary evidence. 

In a letter dated March 3, 2013, appellant noted his disagreement with OWCP’s finding 

that the position of bank teller was suitable both medically and vocationally. Specifically, he 

contended that the bank teller position was outside of his work restrictions, that he did not have 

any customer service skills with the public or prior bank teller experience, and that he was not up 

to date with his computer skills, higher math, or other requirements for a bank teller position. 

Appellant subsequently submitted a June 8, 2012 report by Dr. Hugh D. McPherson, an 

examining Board-certified orthopedic surgeon, who diagnosed chronic low back pain, right leg 

radicular pain, L5-S1 severe degenerative disc disease, right L5 radiculopathy, L2-S1 

degeneration, and status post L5-S1 percutaneous decompression. Dr. McPherson recommended 

a fusion and exploration of the nerve root given the damage to appellant’s L5 nerve root. As an 

alternative to surgery, he recommended a spinal cord stimulator, which would also be considered 

even if surgery was performed. Dr. McPherson opined that surgery was appellant’s best chance 

of improving his symptoms. 

In a March 27, 2013 report, Dr. Lesnak noted that appellant had not yet undergone the 

recommended lumbar surgery, and that he had increasing lower extremity weakness and pain. 

He provided physical examination findings and adjusted appellant’s work restrictions based on 

the clinical findings and progressive symptoms. The adjusted work restrictions allowed 

appellant to perform 5 to 10 pounds of frequent lifting, a maximum of 15 pounds of lifting no 

more than 4 hours per day, standing or walking for no more than 15 minutes at a time. He was 

also to refrain from kneeling, bending, twisting at the waist, or stooping activities, and no 

pushing/pulling more than 20 pounds for no more than two hours per day. 

By decision dated April 2, 2013, OWCP reduced appellant’s benefits, effective that date, 

to reflect that he was capable of performing the duties of a bank teller earning $440.00 per week. 

Subsequently, OWCP received reports dated May 9, June 20, and August 1, 2013 from 

Dr. Lesnak, which provided physical examination findings, diagnoses, and reiterated the work 

                                                             3

 5 U.S.C. § 8113. 

4 Albert C. Shadrick, 5 ECAB 376 (1953). 
5

restrictions noted in his March 27, 2013 report. In an October 10, 2013 report, Dr. Lesnak 

reported no changes to appellant’s work restrictions. 

On January 9, 2014 appellant underwent authorized L5-S1 lateral decompression, 

revision decompression, and transforminal lumbar interbody fusion surgery. 

In a letter dated April 1, 2014, appellant’s counsel requested reconsideration of the 

April 2, 2013 OWCP decision. Counsel argued that the work restrictions utilized to select the 

position were stale by the time the loss of wage-earning capacity determination was issued and 

appellant’s medical condition had worsened based on a June 8, 2012 report by Dr. McPherson 

who recommended surgery, which was performed on January 9, 2014. 

By decision dated July 11, 2014, OWCP denied modification of the April 2, 2013 loss of 

wage-earning capacity determination. 

In a letter dated July 18, 2014, counsel requested a telephonic hearing before an OWCP 

hearing representative, which was held on February 11, 2015. 

By decision dated August 20, 2014, OWCP “temporarily interrupted” the April 2, 2013 

loss of wage-earning capacity determination and approved a payment for the period January 9 to 

August 23, 2014 due to the approved January 9, 2014 surgery.5

 It noted that appellant had 

previously received a partial payment for the period in question and that the new payment would 

be the difference between what he had been paid under the loss of wage-earning capacity 

determination and the rate of pay for full disability. Appellant was further advised that, effective 

August 24, 2014, his rate of pay would continue at the “full disability” rate until he was released 

to return to work by his physician. 

By decision dated April 8, 2015, an OWCP hearing representative affirmed the July 11, 

2014 decision denying modification of the April 2, 2013 loss of wage-earning capacity 

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, represents a claimant’s ability to earn 

wages.6

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

remains undisturbed until properly modified.7

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless: (1) the original rating was in error; (2) the 

claimant’s medical condition has changed; or (3) the claimant has been vocationally 

                                                             5

 A review of the Compensation History under case query in IFECS shows that appellant continued to receive 

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

6 D.M., 59 ECAB 64 (2007); Harley Sims, Jr., 56 ECAB 320 (2005). 

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

rehabilitated.8

 OWCP procedures further provide that the party seeking modification of a formal 

loss of wage-earning capacity determination has the burden to prove that one of these criteria has 

been met.9

ANALYSIS 

OWCP accepted that appellant sustained lumbar intervertebral disc displacement without 

myelopathy and aggravation of lumbar radiculitis as a result of his employment duties. In an 

April 2, 2013 loss of wage-earning capacity determination, appellant’s compensation was 

adjusted to reflect its determination that he was capable of earning wages in the constructed 

position of bank teller for 40 hours per week. By decision dated July 11, 2014, OWCP denied 

his request for modification, which was affirmed by an OWCP hearing representative on 

April 8, 2015. The issue on appeal is whether appellant met his burden of proof to establish that 

the April 2, 2013 loss of wage-earning capacity determination was erroneous and should be 

modified. 

In a November 16, 2011 OWCP work capacity evaluation form, Dr. Lesnak found that 

appellant could work full time with permanent work restrictions on walking and sitting up to one 

hour, up to two to four hours of stooping, and pushing, pulling, and lifting up to 20 pounds. 

Based on these restrictions, OWCP referred him for vocational rehabilitation. Following the 

closure of vocational rehabilitation, it determined that appellant’s wage-earning capacity should 

be reduced based upon his ability to perform the selected position of bank teller and that it fell 

within the physical restrictions established by Dr. Lesnak. 

The Board finds that the April 2, 2013 loss of wage-earning capacity determination was 

proper as the selected position of bank teller was within appellant’s physical restrictions. 

The issue of whether an employee has the physical ability to perform a selected position 

is a medical question that must be resolved by probative medical evidence.10 

The February 8, 2013 proposed reductions of compensation to the constructed bank teller 

position was based on the November 1, 2011 restrictions provided by Dr. Lesnak. Prior to the 

April 2, 2013 finalization of the loss of wage-earning capacity determination appellant submitted 

a new March 27, 2013 report from Dr. Lesnak received by OWCP on April 10, 2013. These new 

restrictions included the limitation that appellant was not to stand or walk for more than 15 

minutes at a time. Dr. Lesnak, however, failed to provide any rationalization as to why he had 

changed appellant’s work restrictions. The Board has previously held that a physician must 

provide a reasoned explanation regarding whether appellant’s accepted conditions had materially 

worsened such that he was unable to perform the duties of his modified position.11 The Board 

finds that Dr. Lesnak failed to provide any objective evidence that appellant’s conditions had 

                                                             8 D.M., supra note 5; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning 

Capacity, Chapter 2.1501.3(a) (June 2013). See also E.F., Docket No. 11-2056 (issued May 14, 2012). 

9 Id. at Chapter 2.1501.4 (June 2013). 

10 See Maurissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995). 

11 See A.P., Docket No. 13-101 (issued June 24, 2013). 
7

materially worsened. It is appellant’s burden of proof to submit a probative medical opinion 

establishing a material change in the nature and extent of his accepted condition.12

Appellant has thus not met his burden of proof to modify the April 2, 2013 loss of 

wage-earning capacity determination. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to modify the April 2, 

2013 loss of wage-earning capacity determination. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 8, 2015 is affirmed. 

Issued: September 9, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             12 See D.D., Docket No. 14-1503 (issued November 24, 2014).