United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

U.S. POSTAL SERVICE, MANAGER 

PROCESSING & DISTRIBUTION CENTER, 

Los Angeles, CA, Employer

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Docket No. 18-0117

Issued: February 25, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On October 20, 2017 appellant, through counsel, filed a timely appeal from purported

August 21 and September 26, 2017 decisions of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 18-0117.

OWCP accepted that on October 29, 2012 appellant, then a 56-year-old tractor trailer 

operator, sustained a sprain of the left knee and left leg and an old bucket handle left medial 

meniscus tear as a result of slipping off the steps of a tractor trailer in the performance of duty. 

Appellant stopped work on the date of injury. In a November 25, 2014 medical report, Dr. Kayvon 

Yadidi, an attending internist, advised that appellant could return to modified work with 

restrictions that day. On May 7, 2015 OWCP referred appellant for vocational rehabilitation

services to identify jobs that he could perform based on Dr. Yadidi’s restrictions. In labor market 

surveys dated July 14 and August 5, 2015 and in a report dated August 4, 2015, a rehabilitation 

 

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

counselor determined that there were two positions that appellant could perform with training 

listed in the Department of Labor’s Dictionary of Occupational Titles (DOT), an information clerk, 

DOT No. 237.367.022, with a $446.00 weekly wage-earning capacity, and customer service 

representative, DOT No. 237.367.014, with a $550.80 weekly wage-earning capacity. The labor 

market surveys indicated that these positions were within appellant’s restrictions, reflected his 

ability to earn wages, and were reasonably available in his commuting area. On August 19, 2015 

the rehabilitation counselor informed OWCP that appellant had failed to attend the start of training 

on August 17 and 18, 2015 for the two positions.

By decision dated October 28, 2015, OWCP reduced appellant’s compensation pursuant to

5 U.S.C. § 8113(b), effective November 15, 2015, to reflect his loss of wage-earning capacity had 

he continued to participate in vocational rehabilitation efforts. It determined that appellant had 

failed, without good cause, to undergo vocational rehabilitation, as directed. With respect to his 

wage-earning capacity, OWCP further found that, if appellant had participated in good faith in 

vocational rehabilitation, he would have been able to perform the position of information clerk for 

substantially higher wages than the wages for the position held when injured.

On March 22, 2016 appellant requested reconsideration. By decision dated March 30, 

2016, OWCP denied appellant’s request for reconsideration of the merits of the claim. It found 

that the evidence submitted in support of reconsideration was irrelevant or immaterial.

In a March 20, 2017 letter, appellant, through counsel, again requested reconsideration of 

the October 28, 2015 wage-earning capacity decision. Counsel contended that OWCP did not 

consider the fact that appellant had severe heart disease prior to his accepted October 29, 2012 

employment injury. Counsel indicated that an accompanying medical record from Dr. Jesus 

Carlos, a Board-certified internist, supported his contention. In a July 17, 2017 letter, he requested 

that OWCP provide the status of his March 20, 2017 request for modification.

By letter dated August 21, 2017, an OWCP claims examiner explained to counsel why the 

medical evidence submitted by appellant in support of his request for modification of its wageearning capacity decision and other medical evidence of record were insufficient to establish that 

he had heart disease prior to his accepted October 29, 2012 work injury. She concluded that “[t]he

October 28, 2015 decision is not modified.” The August 21, 2017 letter did not provide appeal 

rights.

On September 5, 2017 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative regarding a purported August 21, 2017 decision.

In a September 26, 2017 letter, OWCP advised appellant that the correspondence dated 

August 21, 2017 was an informational letter and not a final OWCP decision, and thus the case was 

not in posture for a hearing. The September 26, 2017 correspondence did not provide appeal 

rights.

The Board, having duly considered the matter, notes that its jurisdiction is limited to the 

review of final adverse decisions issued under the Federal Employees’ Compensation Act2

 

2 5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).
3

(FECA). Section 8124(a) of FECA3and section 10.126 of the implementing regulations4require

that final decisions of OWCP contain findings of fact and a statement of reasons and be 

accompanied by information about the claimant’s appeal rights. 

While the August 21, 2017 letter was not accompanied by appeal rights, the Board finds 

that it is a final adverse decision issued by OWCP. This letter contained findings of fact and a 

statement of reasons.5 The August 21, 2017 letter also specifically concluded that “[t]he 

October 28, 2015 decision is not modified.” Given the circumstances of this case, the Board 

concludes that the August 21, 2017 letter was an appealable final decision subject to review under 

20 C.F.R. §§ 501.2(c) and 501.3(a). 

As OWCP’s August 21, 2017 decision constitutes a final adverse decision in denying 

modification of its October 28, 2015 wage-earning capacity determination, the Board will remand 

the case to OWCP for proper adjudication of appellant’s request for a telephonic hearing with an 

OWCP hearing representative regarding this matter. Following this and any necessary further 

development, OWCP shall issue a de novo decision in order to protect appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the September 26 and August 21, 2017 decisions are 

set aside and the case is remanded to the Office of Workers’ Compensation Programs for issuance 

of an appropriate decision consistent with this order of the Board.

 

3 5 U.S.C. § 8124(a).

4 20 C.F.R. § 10.126.

5

Id.; 5 U.S.C. § 8124(a).
4

Issued: February 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board