United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, West Palm Beach, FL, 

Employer

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Docket No. 18-1197

Issued: April 30, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 24, 2018 appellant, through counsel, filed a timely appeal from an April 16, 2018 

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 her burden of proof to establish modification of the 

July 28, 2017 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On August 16, 2006 appellant, then a 49-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that on August 9, 2006 she experienced left shoulder 

and neck pain after pulling bags onto a carousel while in the performance of duty. She stopped 

work on August 16, 2006 and returned to work with restrictions on June 8, 2008. OWCP accepted 

the claim for left shoulder sprain, displacement of a cervical intervertebral disc without 

myelopathy, bulging discs, and brachial neuritis or radiculitis.

By decision dated January 21, 2009, OWCP reduced appellant’s compensation to zero 

based on its finding that her actual earnings as a modified transportation security officer, effective 

June 8, 2008, fairly and reasonably represented her wage-earning capacity. 

Appellant was terminated from her position at the employing establishment as medically 

unable to perform the full range of functions required in her position effective March 2, 2012. 

Appellant subsequently filed several claims for compensation (Form CA-7) for ongoing 

disability.4

By decision dated June 25, 2012, OWCP modified the January 21, 2009 LWEC 

determination as the evidence substantiated that she had sustained a recurrence of disability. It 

found that the job upon which it had based its LWEC determination was not a permanent position. 

In a separate letter of even date, OWCP advised appellant that it would pay her wage-loss 

compensation for total disability on the periodic rolls effective March 3, 2012.

In a report dated June 10, 2013, Dr. Craig Lichtblau, a Board-certified physiatrist, opined 

that appellant could work eight hours per day with restrictions of no bending repetitively at the 

waist, kneeling, squatting, climbing, pushing, pulling, running, or jumping. He advised that she 

should reach overhead infrequently and that she should change positions from sit-to-stand and vice 

 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the April16, 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.

4 By decision dated May 9, 2012, OWCP denied appellant’s claim for a schedule award. 
3

versa frequently at will for positional comfort. Dr. Lichtblau completed a functional capacity 

evaluation (FCE) report dated August 29, 2012 containing the same restrictions. 

On March 11, 2013 Dr. Paul D. Seltzer, an osteopath specializing in orthopedic surgery 

serving as an OWCP second opinion physician, opined that appellant had continued residuals of 

her cervical disc herniation and radiculitis. He opined that she could work with restrictions 

regarding lifting, pushing, and pulling. Dr. Seltzer noted that appellant was a candidate for 

vocational rehabilitation services.

On September 4, 2013 OWCP referred appellant for vocational rehabilitation services.

Appellant completed training in computer skills as of April 22, 2014, with viable job goals of 

customer service representative and receptionist, positions listed in the Department of Labor’s 

Dictionary of Occupational Titles (DOT) bearing DOT No. #239.362-014 and No. #237.367-038, 

respectively. The vocational rehabilitation counselor provided job placement assistance beginning 

June 2014.5 

On July 21, 2016 OWCP referred appellant to Dr. David B. Lotman, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In a report dated August 24, 2016, Dr. Lotman advised that due to appellant’s cervical and 

left shoulder pathology, she was unable to return to her date-of-injury position as a transportation 

security screener. In an attached work capacity evaluation (Form OWCP-5c) report, he indicated 

that she had work restrictions of no reaching above the shoulder, climbing, or bending/stooping, 

as well as no pushing, pulling, or lifting more than 2 hours per day of up to 20 pounds.

On February 15, 2017 the vocational rehabilitation counselor completed a job classification 

(Form CA-66) for the position of customer complaint clerk. The position required occasional 

reaching, handling, and fingering. In a vocational rehabilitation memorandum dated February 16, 

2017, OWCP’s vocational rehabilitation specialist noted that the positions of customer complaint 

clerk, appointment clerk, receptionist, and other similar full-time sedentary jobs remained both 

vocationally suitable and were in sufficient numbers that they were reasonably available in her 

local area.

In a letter dated June 14, 2017, OWCP notified appellant of its proposed reduction in her

wage-loss compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised that the medical 

evidence of record established that she was only partially disabled. OWCP found that the position

of customer complaint clerk was medically and vocationally consistent with her medical 

limitations, skills and work experience. It determined that appellant was capable of earning wages 

at the rate of $398.40 per week as a customer complaint clerk and that the position was reasonably 

available within her commuting area. OWCP provided an attachment detailing the application of 

 

5

In a letter dated August 6, 2014, OWCP requested thatDr.Lichtblau clarify whether appellant was able to perform 

the duties of a customer service representative or receptionist. On August 28, 2014 Dr. Lichtblau confirmed that

appellant was able to work as a receptionist, appointment clerk, and information clerk within her medical restrictions 

of performing occasional fingering/typing for eight hours a day in a sedentary position.
4

the Shadrick formula.

6

 It afforded appellant 30 days to submit evidence and argument if she chose 

to contest the proposed action.

In a report dated June 29, 2017, Dr. Lichtblau advised that appellant could work within the 

restrictions set forth in the August 29, 2012 FCE. He indicated that she could perform light-duty 

employment alternating sitting and standing as needed and avoiding repetitive bending, kneeling, 

squatting, crawling, climbing, running, and jumping.

By decision dated July 28, 2017, OWCP reduced appellant’s compensation effective 

July 29, 2017 based on her capacity to earn wages as a customer complaint clerk at the rate of 

$398.40 per week. It found that the evidence of record demonstrated that she was vocationally 

and physically capable of working as a customer complaint clerk. 

On August 16, 2017 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

On November 28, 2017 OWCP authorized arthroscopic left shoulder surgery. On 

November 30, 2017 Dr. Ryan Simovitch, a Board-certified orthopedic surgeon, performed a left 

shoulder rotator cuff repair, subacromial decompression with acromioplasty, and debridement. 

The hearing was held on January 5, 2018. At the hearing, counsel argued that appellant’s 

recent surgery qualified as changed circumstances warranting a modification of the LWEC 

determination of July 28, 2017 while she recovered from surgery. The hearing representative 

noted that there was no medical evidence of record addressing the period of disability related to 

surgery. She held the case file open 30 days for submission of additional evidence. 

In a report dated January 22, 2018, Dr. Simovitch advised that appellant had undergone 

right shoulder surgery nine weeks earlier. He noted that she complained of continuing pain 

radiating into her neck. Dr. Simovitch discussed appropriate use of a sling and the necessary 

period of postoperative convalescence. Appellant also submitted operative reports and reports 

prior to her surgery on November 30, 2017. 

By decision dated February 7, 2018, the hearing representative affirmed the July 28, 2017 

LWEC determination finding that both the medical and vocational evidence supported that 

appellant had the ability to perform the position of customer complaint clerk. She noted that 

counsel had contended at the hearing that modification of the LWEC determination should be 

considered in view of her left shoulder surgery. The hearing representative found, however, that 

the relevant issue was whether appellant had established a recurrence of disability due to her 

surgery rather than modification of the LWEC determination. She instructed OWCP to develop

the issue of whether she had experienced a period of disability subsequent to her surgery.

On March 2, 2018 appellant, through counsel, requested reconsideration of the February 7, 

2018 decision. With the request, she submitted surgical records related to her procedure on 

November 30, 2017, including the previously-submitted operative report of that date, as well as 

 

6 Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.
5

documents relating to the ordering of surgery and authorization by OWCP that were previously of 

record. Appellant also submitted numerous reports from physical therapists.

In a report dated March 12, 2018, Dr. Simovitch noted that appellant had been attending 

physical therapy. On examination, he found well-healed incisions with supple range of motion. 

Dr. Simovitch advised that appellant had slowly improved. He recommended that appellant return 

to Dr. Lichtblau for pain management.

By decision dated April 16, 2018, OWCP denied modification of its February 7, 2018 

decision finding that the records submitted on reconsideration discussed appellant’s November 30, 

2017 arthroscopic surgery, and that a decision had not yet been issued regarding payment of 

compensation for a recurrence of temporary total disability due to the surgery.

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

remains undisturbed until properly modified.8

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

such determination is not warranted unless it meets the requirements for modification.9 OWCP 

procedures at Chapter 2.1501 contain provisions regarding the modification of a formal LWEC.10 

The relevant part provides that a formal LWEC 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 However, OWCP is not precluded from adjudicating a limited period 

of disability following the issuance of an LWEC decision, such as where an employee has a 

demonstrated need for surgery.12

 

7

5 U.S.C. § 8115(a); O.H., Docket No. 17-0255 (issued January 23, 2018).

8 O.H., id.; KatherineT. Kreger, 55 ECAB 633 (2004).

9 B.G., Docket No. 17-0477 (issued September 20, 2017); Sue A. Sedgwick, 45 ECAB 211 (1993).

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

2.1501 (June 2013). See J.M.,Docket No. 18-0196 (issued July 12, 2018).

11 Id. at Chapter 2.1501.3(a).

12 Id. at Chapter 2.1501.10(b); Katherine T. Kreger, supranote 8.
6

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

determination.13 There is no time limit for appellant to submit a request for modification of a 

wage-earning capacity determination.14

ANALYSIS

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

By decision dated July 28, 2017, OWCP found that appellant could perform the duties of 

a customer complaint clerk, a sedentary position, and reduced her compensation to reflect her 

wage-earning capacity in that job. On November 30, 2017 appellant underwent an authorized left 

shoulder rotator cuff repair, subacromial decompression with acromioplasty, and debridement. In 

its February 7, 2018 decision, an OWCP hearing representative affirmed the July 28, 2017 

decision. She discussed counsel’s assertion at the hearing that appellant had established 

modification of the LWEC determination as her condition had changed due to her left shoulder

surgery. The hearing representative found, however, that the issue of whether she had established 

disability after her surgery should be adjudicated as a recurrence of disability rather than as a 

request for modification of the LWEC determination. Following a request for reconsideration, on 

April 16, 2018 OWCP denied modification of its February 7, 2018 decision, noting that it was 

separately adjudicating the issue of whether appellant had established entitlement to a period of 

temporary total disability subsequent to her surgery. 

As OWCP issued a formal LWEC determination, the decision will remain in place 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.15 Appellant has the burden of proof to show that modification of the LWEC 

determination is warranted.16

Appellant has not alleged that the original LWEC determination was in error or that she 

was vocationally rehabilitated. Instead, she contended that the July 28, 2017 LWEC determination 

should be modified due to a change in her injury-related condition as a result of her November 30, 

2017 shoulder surgery. OWCP found that the shoulder surgery would not constitute a 

circumstance warranting modification of an LWEC determination, but instead should be 

considered as a recurrence of disability. The Board finds, however, that the proper issue is whether 

the July 28, 2017 LWEC determination should be modified. 

OWCP may accept a limited period of disability without modification of a formal LWEC 

determination.17 This occurs when there is a demonstrated temporary worsening of a medical 

 

13 C.S., Docket No. 18-1610 (issued April25, 2019); Jennifer Atkerson, 55 ECAB 317 (2004).

14 S.S., Docket No. 18-0397 (issued January 15, 2019); W.W., Docket No. 09-1934 (issued February 24, 2010); 

Gary L. Moreland, 54 ECAB 638 (2003).

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

16 See L.P., Docket No. 17-1624 (issued March 9, 2018).

17 S.J., Docket No. 16-1195 (issued January 4, 2017); Katherine T. Kreger, supranote 8.
7

condition of insufficient duration and severity to warrant modification of an LWEC 

determination.18 This narrow exception is only applicable for brief periods of medical disability. 19 

OWCP procedures provide, “If the claimant is off work for a brief period due to his/her temporary 

inability to perform the duties of the rated position, this period of medical disability can be paid 

without modification of [the LWEC] determination, e.g., a brief recovery period after surgery or 

an injection with a subsequent day of disability.20 However, if a formal LWEC determination has 

been issued, and the claimant requests resumption of compensation for total wage loss, OWCP 

should evaluate the request according to the customary criteria for modifying a formal LWEC 

determination.21

As appellant has submitted evidence that she may have sustained increased disability due 

to her left shoulder surgery, in accordance with its procedures OWCP must evaluate the evidence 

to determine if modification of the LWEC determination is warranted.22 On remand OWCP should 

consider the medical evidence and determine whether she has established that the July 28, 2017 

LWEC determination should be modified. Following such further development of the case as 

OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

 

18 T.G., Docket No. 18-1064 (issued April26, 2019).

19 L.T., Docket No. 18-0797 (issued March 14, 2019).

20 Supra note 10at Chapter 2.1501.4 (June 2013); L.T., id.

21 Id. 

22 See Katherine T. Kreger, supra note 8.
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ORDER

IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’

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

with this decision of the Board.

Issued: April 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board