United States Department of Labor

Employees’ Compensation Appeals Board

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M.C., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF LAND MANAGEMENT, Las Vegas, NV, 

Employer

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Docket No. 20-0339

Issued: August 25, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On December 2, 2019 appellant filed a timely appeal from a June 19, 2019 nonmerit 

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

Boards docketed the appeal as No. 20-0339.

On May 8, 2014 appellant, then a 40-year-old management assistant, filed an occupational 

disease claim (Form CA-2) alleging that she experienced extreme stress, anxiety, and feared for 

her safety due to the threatening and harassing emails and telephone calls received following a

cattle impoundment. She stated that she was fearful of the public coming into the area where she 

worked, due to the lack of any protection. OWCP accepted the claim for acute stress reaction. 

Appellant stopped work on April 23, 2014, returned to work on July 2, 2015, and resigned from 

the employing establishment effective March 6, 2015. OWCP paid her wage-loss compensation 

on the supplemental rolls from May 4 through July 1, 2014 and from March 6, 2015 through 

April 30, 2016. It paid appellant wage-loss compensation on the periodic rolls beginning 

May 1, 2016. 

On January 20, 2017 OWCP referred appellant to Dr. Sean R. Duffy, a Board-certified 

psychiatrist and neurologist, for second opinion evaluation regarding the extent and nature of her 

accepted employment-related condition. In a February 6, 2017 report, Dr. Duffy diagnosed 
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chronic post-traumatic stress disorder (PTSD) due to her employment and opined that she was 

capable of working with restrictions. The restrictions included inability to work in a social or 

workplace environment due to appellant’s anxiety and PTSD and inability to work outside her 

home.1 OWCP referred her to a vocational rehabilitation counselor who identified the position of 

customer complaint clerk as suitable to her work restrictions.

By decision dated January 14, 2019, OWCP issued a formal loss of wage-earning capacity 

(LWEC) determination based upon appellant’s ability to perform the selected position of customer 

complaint clerk DOT No. 241.367-014. It found that the weight of the medical evidence rested 

with the well-rationalized opinion of Dr. Duffy, an OWCP referral physician, who indicated that 

she was capable of working from home.

On March 26, 2019 OWCP received appellant’s request for reconsideration asserting that 

she was not capable of performing customer service work. Appellant submitted a March 6, 2019 

report by Dr. Carmit Boldur, a psychiatrist, noting that she had difficulty concentrating and 

completing tasks and in maintaining and engaging in social relationships and performing effective 

work.

By decision dated June 19, 2019, 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.2 The burden of proof is on the 

party attempting to establish a modification of the LWEC determination.3

The Board finds that appellant’s March 26, 2019 for reconsideration was, in fact, a request 

for modification of the January 14, 2019 LWEC determination. Appellant specifically alleged that 

the determination was in error as she asserted she could not perform the position of customer 

complaint clerk. She also submitted a March 6, 2019 report by Dr. Boldur regarding her condition. 

It is well established that a claimant may establish that a modification of an LWEC determination 

is warranted if there has been a showing that the original determination was, in fact, erroneous.4

 

1 The Board notes that the record also contains a November 13, 2017 report from Richard Vande Voort, a treating 

therapist, who opined that appellant was capable of working from home and recommended on-line training.

2 20 C.F.R. § 10.511; see C.H., Docket No. 19-1114 (issued April 30, 2020); A.S., Docket No. 18-0370 (issued 

March 5, 2019); Tamra McCauley, 51 ECAB 375 (2000); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).

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Id.

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Id. at § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).
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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 

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

of proof to establish modification of the January 14, 2019 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 decision of the June 19, 2019 Office of Workers’

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

with this order of the Board.

Issued: August 25, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

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

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