United States Department of Labor

Employees’ Compensation Appeals Board

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S.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Schaumburg, IL, Employer

__________________________________________

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Docket No. 19-1521

Issued: February 22, 2021

Appearances: Case Submitted on the Record

Larissa Ann Parde, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 9, 2019 appellant, through his representative, filed a timely appeal from a

January 16, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 Appellant timely requested oral argument before the Board. By order dated April 15, 2020, the Board exercised 

its discretion and denied the request as the matter could be adequately addressed based on a review of the case record. 

Order Denying Request for Oral Argument, Docket No. 19-1521 (issued April 15, 2020).
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.4

ISSUE

The issue is whether appellant has met his burden of proof to modify OWCP’s June 1, 2017 

loss of wage-earning capacity (LWEC) determination. 

FACTUAL HISTORY

On May 18, 2015 appellant, then a 56-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that factors of his federal employment, including over 30 years 

of bending, twisting, lifting, and falling caused a medical condition. He noted that he first became 

aware of his condition on September 1, 2014 and its relation to his federal employment on 

May 7, 2015. In an accompanying narrative, appellant indicated that the implicated employment 

factors caused a neck injury. OWCP accepted the claim for cervical radiculopathy. Appellant 

stopped work on September 9, 2015. On November 12, 2015 OWCP expanded acceptance of the 

claim to include bilateral carpal tunnel syndrome, cervical disc displacement, mid-cervical region, 

and cervical disc displacement, cervicothoracic region C3-C7. Appellant returned to full-time,

limited-duty work on July 19, 2016.

Appellant accepted a modified limited-duty assignment on September 10, 2016, which 

required lifting up to 47 pounds for 2 to 4 hours, carrying up to 42 pounds for 2 to 4 hours and 

pushing pulling up to 200 pounds for 2 to 4 hours.

By decision dated June 1, 2017, OWCP found that the modified city carrier position

appellant had held since September 10, 2016 fairly and reasonably represented his wage-earning 

capacity. It further found that, as his actual earnings met or exceeded the current wages of the job 

he held when injured, there was no loss of wage-earning capacity (LWEC).

On July 14, 2017 OWCP received a claim for compensation (Form CA-7) for total 

disability from June 24 to July 7, 2017. Along with the Form CA-7, it also received a June 23, 

2017 work restriction note from Dr. Bruce J. Montella, a Board-certified orthopedic surgeon, 

holding appellant off work until further evaluation.

In a July 17, 2017 development letter, OWCP advised appellant that his claim for wageloss compensation for the period June 24 to July 7, 2017 was considered a request for modification 

of his formal LWEC decision. It informed him of the three criteria to establish modification of an

LWEC and afforded him 30 days to submit the necessary information. OWCP also noted that 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that, following the January 16, 2019 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.
3

appellant’s accepted conditions were bilateral carpal tunnel syndrome, other cervical disc 

displacement, mid-cervical region, and other cervical disc displacement, cervicothoracic region.

Appellant subsequently submitted additional reports from Dr. Montella, along with a Form 

CA-7, claiming compensation from August 5 through 18, 2017.

By decision dated September 11, 2017, OWCP denied modification of its June 1, 2017 

LWEC determination. It found that Dr. Montella did not describe the changes in appellant’s 

accepted conditions or provide rationalized medical opinion regarding the causal relationship 

between such changes and the increase in disability. The decision noted that appellant’s claim was 

accepted for bilateral carpal tunnel syndrome, other cervical disc displacement, mid-cervical 

region, and other cervical disc displacement, cervicothoracic region. 

A September 26, 2017 magnetic resonance imaging (MRI) scan of the cervical spine 

demonstrated restriction of movement in various flexion and extension positions along with 

numerous disc bulges. A September 26, 2017 MRI scan of the cervical spine revealed mild 

increase in the severity of right neural foraminal stenosis at C3-4 level and mild increase in severity 

of bilateral foraminal stenosis at C4-5 level as compared to previous MRI scan of cervical spine 

dated July 24, 2015. An October 2, 2017 electromyogram (EMG) showed moderate bilateral 

median neuropathy across the wrists, left worse than right, with no significant change from prior 

study. It also noted suspicious but not diagnostic findings of chronic bilateral mid-cervical (C6-7) 

radiculopathy.

In reports beginning September 22, 2017, Dr. Montella indicated that appellant’s 

conditions had worsened to a state of permanent total disability. In an October 13, 2017 report, he

provided an impression of cervical disc displacement at C5-6 level and cervical disc disorder at 

C6-7 level with radiculopathy. Dr. Montella indicated that appellant’s MRI scans showed a 

distinct worsening of the biomechanic integrity and ability of appellant’s spinal column to function 

in regard to bearing stresses required of him at work. He advised that the EMGs were consistent 

with nerve root entrapment at the cervical spine as well as at the wrists; that the serial radiographs 

showed significant progression of spondylitic changes consistent with disability; and that a followup EMG was consistent with radiculopathy. Dr. Montella related that appellant required daily pain 

medication and should not be operating a motor vehicle. He also related that appellant could not 

lift weights in excess of 5 to 10 pounds, and could not lift any weight in a repetitive fashion. Dr. 

Montella opined that this was consistent with a worsening of appellant’s overall condition which 

precluded him from returning to work from June 24, 2017 onward.

Appellant requested reconsideration on November 1, 2017. In support of his request, 

appellant submitted additional reports from Dr. Montella.

By decision dated January 23, 2018, OWCP denied modification of its September 11, 2017 

decision, finding that Dr. Montella had not provided a well-rationalized explanation of how 

appellant’s accepted medical conditions had materially changed. The decision noted that 

appellant’s claim was accepted for bilateral carpal tunnel syndrome, other cervical disc 

displacement, mid-cervical region, and other cervical disc displacement, cervicothoracic region.
4

Appellant continued to submit evidence from Dr. Montella. In a February 15, 2018 letter,

Dr. Montella advised that appellant was being treated for cervical disc herniation at the C5-6 level 

and cervical disc radiculopathy the C6-7 level. He requested that OWCP expand acceptance of 

the claim to include cervical radiculopathy based on the October 2, 2017 EMG. Dr. Montella also 

explained how appellant’s cervical spine was aggravated, which caused a herniated disc and led to 

radiculopathy.

A note of a telephone call (Form CA-110) dated April 26, 2018 revealed that a voicemail

message from OWCP advised appellant that cervical disc radiculopathy could not be added to his 

claim as the October 2, 2017 EMG findings were “suspicious” and not diagnostic of cervical

radiculopathy.

An EMG of May 11, 2018 showed, in relevant part, a more central chronic lesion, 

radiculopathy of C6-7, bilaterally. In an addendum to a May 11, 2018 EMG report, Dr. Drew S. 

Kandilakis, a Board-certified neurological electrodiagnostics, opined that, based on the EMG 

findings, appellant has a chronic C6-7 bilateral cervical radiculopathy.

In a May 25, 2018 report, Dr. Montella again requested that radiculopathy of C6-7 

bilaterally be added to appellant’s accepted conditions based on the May 11, 2018 addendum to 

the recent EMG report. He additionally provided a medical explanation as to how the condition 

resulted from the original cervical disc herniation conditions.

On August 30, 2018 appellant, through his representative, requested reconsideration of the 

June 1, 2017 LWEC determination, contending that appellant sustained a worsening of his medical 

conditions because OWCP had not accepted cervical radiculopathy. Narrative medical reports 

from Dr. Montella, dated February 15 through October 2, 2018, were received along with physical 

therapy reports, diagnostic tests, and medical literature.

By decision dated January 16, 2019, OWCP denied modification of its January 23, 2018 

decision. It indicated, in relevant part, that appellant’s cervical radiculopathy was an accepted 

condition. However, OWCP also found that Dr. Montella’s reports were vague as to what material 

change occurred on June 24, 2017 that demonstrated total disability for all employment. It further 

found that there was no evidence that the original LWEC decision was in error or that appellant 

was vocationally rehabilitated.

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

remains undisturbed until properly modified.6 OWCP’s regulations and procedures contain 

 

5 See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6 W.R., Docket No. 18-1782 (issued May 29, 2019); L.T., Docket No. 18-0797 (issued March 4, 2019); Katherine T. 

Kreger, 55 ECAB 633 (2004).
5

provisions regarding the modification of a formal LWEC.7 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.8 It 

further provides that the party seeking modification of a formal LWEC decision has the burden to 

prove that one of these criteria has been met.9

ANALYSIS

The Board finds that appellant has met his burden of proof to modify OWCP’s June 1, 

2017 LWEC determination. 

Appellant received wage-loss compensation based upon an LWEC determination that his 

modified regular city carrier position which he held since September 10, 2016 fairly and 

reasonably represented his wage-earning capacity. He subsequently claimed total disability 

commencing June 24, 2017, which OWCP properly developed as a request for modification of the 

LWEC. 

In denying appellant’s initial requests for modification of the LWEC determination

following his June 24, 2017 work stoppage due to alleged total disability, OWCP, in its decisions 

dated September 11, 2017 and January 23, 2018, incorrectly indicated that cervical radiculopathy 

was not an accepted condition and, therefore, appellant had not established a worsening of his 

accepted conditions. In the January 16, 2019 decision, OWCP acknowledged that cervical 

radiculopathy was an accepted condition; however, it found that appellant had not established that 

his accepted condition had worsened, thereby requiring modification of the LWEC determination. 

In his October 13, 2017 report, Dr. Montella related that he had reviewed appellant’s MRI 

and EMG studies and he concluded that appellant had sustained a worsening of his condition,

which precluded him from returning to work from June 24, 2017 and continuing. He explained 

that appellant had cervical disc displacement at C5-6 and cervical disc disorder at C6-7 with 

radiculopathy. Dr. Montella related that appellant’s MRI scan showed a distinct worsening of 

biomechanic integrity and ability of appellant’s spinal column to function in regard to bearing 

stresses required of him at work. Furthermore, he related that appellant’s EMG’s were consistent 

with nerve root compression of the cervical spine and wrists, consistent with radiculopathy, he 

also noted that appellant had progression of spondylitic changes consistent with disability. In 

explaining appellant’s disability status, Dr. Montella related that appellant could not lift weights 

in excess of 5 to 10 pounds, and could not lift any weight in a repetitive fashion. 

 

7 20 C.F.R. § 10.511; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning

Capacity, Chapter 2.1501 (June 2013); see also C.S., Docket No. 18-1610 (issued April 25, 2019).

8

Id. at Chapter 2.1501.3(a) (June 2013); see C.S., id.

9

Id. at Chapter 2.1501.4 (June 2013); see J.A., Docket No. 18-1586 (issued April 9, 2019); Stanley B. Plotkin, 51 

ECAB 700 (2000).
6

It is appellant’s burden of proof to establish that his accepted conditions have materially 

worsened, such that the LWEC determination should be modified.

10

 Further definition as to when 

modification of a formal LWEC determination should occur if the claimant’s medical condition 

has materially changed is provided in OWCP’s procedures. These procedures provide for 

modification of an LWEC determination when current medical evidence demonstrates a worsening 

of the accepted medical condition with no intervening injury resulting in new or increased workrelated disability.

11

Dr. Montella has provided objective evidence that appellant’s accepted cervical 

radiculopathy condition worsened and caused disability from the modified limited-duty position

as of June 24, 2017. Appellant’s modified limited-duty position, which was the basis of his LWEC

determination required lifting up to 47 pounds for two to four hours, carrying up to 42 pounds for 

two to four hours and pushing pulling up to 200 pounds for two to four hours. Dr. Montella,

however, explained that appellant was not able to lift weights in excess of 5 to 10 pounds, and 

could not lift any weight in a repetitive fashion. He has, therefore, provided the medical rationale 

necessary to establish that appellant’s accepted condition had worsened and that appellant was 

unable to perform the duties of the modified position.12 Aappellant has met his burden of proof to 

modify the June 1, 2017 LWEC determination.13 

CONCLUSION

The Board finds that appellant has met his burden of proof to modify OWCP’s June 1,

2017 LWEC determination. 

 

10 See L.P., Docket No. 17-1624 (issued March 9, 2018); Darletha Coleman, 55 ECAB 143 (2003).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Wage-Earning Capacity, Chapter 2.1501 

(June 2013).

12 Id.

13 See M.K., Docket No. 17-1852 (issued August 23, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the January 16, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: February 22, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board