United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.H., Appellant

and

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION, 

Jacksonville, FL, Employer

__________________________________________

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Docket No. 18-1787

Issued: July 29, 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 September 24, 2018 appellant filed a timely appeal from a May 29, 2018 nonmerit 

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

Boards docketed the appeal as No. 18-1787.1 

On May 21, 2001 appellant, then a 50-year-old senior claims examiner, filed an 

occupational disease claim (Form CA-2) alleging that lifting heavy case files aggravated his 

degenerative disc disease and caused a herniated lumbar disc. OWCP accepted lumbar 

degenerative disc disease at L4-5 and major depressive disorder, recurrent. Appellant returned to 

modified-duty work for a brief period in 2001, but has not worked at the employing establishment 

since December 5, 2001. OWCP paid him wage-loss compensation benefits placed him on the 

periodic compensation rolls beginning January 27, 2002.

 

1 The Board notes that following the May 29, 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

On March 26, 2003 appellant returned to part-time work as a driver for a private-sector

rental car agency. On December 7, 2004 OWCP issued a formal loss of wage-earning capacity 

(LWEC) determination which found that his actual, part-time earnings fairly and reasonably 

represented his wage-earning capacity and reduced his compensation.

Appellant thereafter requested modification of the December 7, 2004 LWEC 

determination. OWCP last denied modification of the December 7, 2004 LWEC determination by 

decision dated February 21, 2018. 

On March 13, 2018 appellant requested reconsideration of the February 21, 2018 decision. 

He asserted that a July 4, 2013 report from Dr. Manual Portalatin, a family practitioner, was

sufficient to support both a material worsening of his employment-related condition and total 

disability.2

By decision dated May 29, 2018, OWCP denied appellant’s request for reconsideration 

without conducting a merit review pursuant to 5 U.S.C. § 8128(a).

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

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.3 The burden of proof is on the 

party attempting to establish a modification of the LWEC determination.4 

Although appellant used the term reconsideration in his correspondence received on 

March 13, 2018, he contended that OWCP committed error in its February 21, 2018 decision 

because Dr. Portalatin’s July 4, 2013 report was sufficient to support both a material worsening of 

his employment-related condition and total disability. The Board therefore finds that the March 13, 

2018 letter constituted a request for modification of the December 7, 2004 LWEC determination. 

The Board has held that when an LWEC determination has been issued and appellant 

submits evidence with respect to one of the criteria for modification OWCP must evaluate the 

evidence to determine if modification is warranted.5 

As OWCP improperly reviewed the case under the standard for a timely reconsideration 

request, the case must therefore be remanded to OWCP for a proper decision which includes 

 

2 By decision dated August 22, 2016, the Board had reviewed Dr. Portalatin’s July 4, 2013 report solely regarding 

the issue of whether an attendant’s allowance should be authorized. The Board did not review this report to determine 

if it established a material change in the nature and extent of appellant’s injury-related condition. Moreover, OWCP 

also had not reviewed this report to determine if it was sufficient to establish a material change in appellant’s injuryrelated condition. Docket No. 15-1239 (issued August 22, 2016). 

3 A.S., Docket No. 18-0370 (issued March 5, 2019).

4

Id.

5 L.P., Docket No. 18-1429 (March 8, 2019).
3

findings of fact and a clear and precise statement regarding whether appellant has met his burden 

of proof to establish modification of his LWEC determination.6 The Board consequently remands 

the case to OWCP for proper adjudication, to be followed by a de novo decision.

IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’

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

with this order of the Board.

Issued: July 29, 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

 

6 See R.Z., Docket No. 17-1455 (issued February 15, 2019).