United States Department of Labor

Employees’ Compensation Appeals Board

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V.D., Appellant

and

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Norfolk, VA, Employer

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Docket No. 21-0734

Issued: January 11, 2022

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 April 19, 2021 appellant filed a timely appeal from a March 10, 2021 decision of the 

Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards 

assigned Docket No. 21-0734.

On January 29, 2016 appellant, then a 42-year-old supply utility clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on January 24, 2016 he injured his back when carrying 

boxes weighing 42 pounds when he lost his balance on an unstable deck while in the performance 

of duty. He stopped work on January 25, 2016. OWCP accepted the claim forstrain of the thorax. 

On May 10, 2016 it authorized wage-loss compensation on the supplemental rolls beginning 

March 21, 2016. On July 29, 2016 OWCPexpandedthe acceptance of appellant’s claim to include 

lumbar sprain. On April 27, 2017 it again expanded the acceptance of his claim to include lumbar 

intervertebral disc disorder with radiculopathy, and lumbar intervertebral disc displacement.

1 The Board notes that,following the March10, 2021 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

By decision dated January 25, 2018, OWCP issued a formal loss of wage-earning capacity 

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

administrative clerk/office clerk effective February 4, 2018 as he was found to have the capacity 

to earn wages of $352.00 per week. It found that the weight of the medical evidence rested with

Dr. Amer Ansari, a Board-certified physiatrist and appellant’s attending physician, who found that 

he could perform the selected position of administrative clerk. OWCP applied the formula set 

forth in Albert C. Shadrick as codified in section 10.403 of its regulations, to determine his loss of 

wage-earning capacity. It paid appellant wage-loss compensation on the periodic rolls effective 

August 30, 2019.

In a form report dated February 13, 2019, Dr. Fady Ashamalla, a psychiatrist, found that 

appellant was totally disabled.

In a January 10, 2020 note, Dr. Margaret Dowdy-Yee, a Board-certified family 

practitioner, found that appellant was disabled due to lumbar sprain, thorax sprain, lumbar 

intervertebral disc disorders with radiculopathy, and lumbar intervertebral disc displacement. She 

provided work restrictions of no lifting over 10 pounds, and no repetitive bending, twisting, or 

stooping.

On December 10, 2020 appellant requested reconsideration of the January 26, 2016 wageearning capacity determination. He submitted a statement asserting that Dr. Ansari had given

appellant the choice to return to light-duty work or to find him totally disabled. Appellant further 

asserted that he had been unable to secure work as an office clerk.

By decision dated March 10, 2021, OWCP denied appellant’s request for reconsideration

finding that it was untimely filed and failed to demonstrated clear evidence of error.

The Board, having duly considered this matter finds that this case is not in posture for 

decision.2

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

an LWEC determination is unwarranted 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.3 The burden of proof is on the party 

seeking modification of the wage-earning capacity determination.4 Unlike reconsideration 

pursuant to 5 U.S.C. § 8128(a), there is no time limitation for requesting modification of an LWEC 

determination.5 Requests for “modification” should be reviewed carefully to determine whether 

2 C.H., Docket No. 19-114 (issued April30, 2020); B.H., Docket No. 18-1515 (issued June20, 2019); N.M., Docket 

No. 17-0262 (issued July 3, 2017).

3

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2 

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

4

20 C.F.R. § 10.511.

5 W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).
3

the claimant is seeking a reconsideration of a recently issued LWEC decision, as opposed to a 

modification of the LWEC determination.6

The Board finds that appellant’s December 10, 2020 request for reconsideration was, in 

fact, a request for modification of the January 25, 2018 LWEC determination. Appellant 

specifically alleged error in Dr. Ansari’s October 17, 2016 report, upon which the LWEC 

determination was based. He further submitted additional medical evidence addressing a material 

change in the nature and extent of the injury-related 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, erroneous7 or if there is a material change in 

his injury-related conditions.8

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.9

As OWCP improperly reviewed the case under the standard for an untimely 

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

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.10 The Board consequently remands 

the case to OWCP for proper adjudication, to be followed by an appropriate decision.

6

Supra note 3 at Chapter 2.1501.4a (June 2013).

7

20 C.F.R. § 10.511; L.P., Docket No. 20-0154 (issued April 7, 2021); Y.R., Docket No. 18-1464 (issued 

February22, 2019).

8

See T.D., Docket No. 20-1088 (issued June 14, 2021); L.M., Docket no. 20-1028 (issued March10, 2021); S.V., 

Docket No. 19-1521 (issued February22, 2021).

9 L.P., supra note 7.

10 Id.; L.H., Docket No. 18-1787 (issued July 29, 2019); R.Z., Docket No. 17-1455 (issued February 15, 2019).
4

IT IS HEREBY ORDERED THAT the March 10, 2021 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: January 11, 2022

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