United States Department of Labor

Employees’ Compensation Appeals Board

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S.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

West Covina, CA, Employer

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Docket No. 21-0622

Issued: August 8, 2022

Appearances: Case Submitted on the Record

Stephen Millard, for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 8, 2021 appellant, through her representative, filed a timely appeal from a

December 18, 2020 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0622.

2

On January 27, 2010 appellant, then a 50-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she injured her lower back on January 4, 2010 when she passedbundles 

of mail to her coworker while in the performance of duty. OWCP accepted the claim for sprain of 

lumbosacral joint and ligament on the right. Itsubsequently expanded acceptance of the claim to 

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 The Board notes that,following the December 18, 2020 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

include displacement of lumbar intervertebral disc without myelopathy at L3-4, L4-5, L5-S1, 

permanent aggravation of spondylolisthesis at L5-S1, and lumbar radiculopathy. OWCP paid 

appellant wage-loss compensation on the supplemental rolls as of January 15, 2010 and on the 

periodic rolls as of July 1, 2012.

In reports dated March 21 and April 25, 2019, Dr. Scott Goldman, a Board-certified 

orthopedic surgeon and treating physician, noted appellant’s diagnoses and indicated that she had 

ongoing pain, stiffness, and tenderness to her low back, causing weakness in her lower extremities, 

with intermittent pain and numbness radiating down her lower extremities, and difficulty weight 

bearing. He opined that she remained temporarily totally disabled from work due to her accepted

employment-related conditions. 

In an April 15, 2019 report, OWCP’s second opinion physician, Dr. Satish K. Lal, an 

orthopedic surgeon, opined that appellant continued to suffer residuals of the accepted employment 

conditions to include low back pain and stiffness with radicular symptoms in the lower limb with 

numbness over the lower limb, more so in the right lower limb as compared to the left lower limb. 

He opined that she had not reached maximum medical improvement (MMI) and recommended 

surgery to remove the segmental instrumentation followed by physical therapy and reassessment 

six months postsurgery when he opined that she would reach MMI. However, Dr. Lal noted that 

appellant related that she declined the proposed surgery. He opined that she was capable of light 

sedentary work with no pulling, pushing, or carrying objects weighing more than 10 pounds. 

Dr. Lal completed a work capacity evaluation (Form OWCP-5c) delineating restrictions of no 

more than four hours per day of sitting, no more than two hours of walking and standing, no more 

than four hours of repetitive movements of the wrists and elbows, no more than two hours of 

pushing, pulling, or lifting, and a 10-pound weight restriction.

On May 23, 2019 the employing establishment offered appellant a temporary light-duty 

assignment of 20 hours per week as a modified sales and service associate. It noted that the duties 

were in accordance with Dr. Lal’s work restrictions. 

In a notice of proposed reduction of compensation, OWCP advised appellant that the 

temporary light-duty position of modified sales and service associate accommodated her current 

work restrictions. It advised her that if she did not accept the position her wage-loss compensation 

would be reduced indefinitely. 

By decision dated July 8, 2019, OWCP finalized the notice of proposed reduction of 

appellant’s compensation benefits and issued a formal loss of wage-earning capacity (LWEC) 

determination. It found that she failed to accept the temporary light-duty assignment and reduced 

her wages effective July 8, 2019. OWCP explained that, if appellant had accepted the light-duty 

assignment, she would have worked 20 hours per week with wages of $574.76 per week, and that 

she would be paid compensation based on the difference between the pay of the temporary lightduty assignment and the current pay of the position she held on the date of injury. 

On December 7, 2020 appellant requested reconsideration. She explained that her 

submission of medical reports was delayed because she was not able to see her physician until 

June 2020 due to the COVID-19 virus. Appellant enclosed reports from Dr. Goldman dated 

May 27, June 15, and July 7, 2020. The reports opined that she was unable to return to her usual 
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and customary work without restrictions. In the May 27, 2020 report, Dr. Goldman explained that 

appellant could only return to work for two hours a day, not f our hours as recommended by Dr. Lal.

OWCP also received a November 27, 2019 report from Dr. Goldman who addressed Dr. Lal’s 

report, disagreeing with his opinion. Dr. Goldman opined that it was not reasonable for appellant 

to return to any type of functional work. 

OWCP also received reportsfrom Dr. Wayne Cheng, a Board-certified orthopedic surgeon,

dated August 19, 2020 and a December 15, 2020 report from Dr. James I. Rho, a Board-certified 

anesthesiologist, which related appellant’s current findings. 

By decision dated December 18, 2020, OWCP summarily denied appellant’s request for 

reconsideration,finding that it was untimely filed and failed to demonstrate clear evidence of error.

The Board, having duly considered the matter, concludes that the case is not in posture for 

decision.3

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. 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 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 7, 2020 request for reconsideration was a 

request for modification of the July 8, 2019 LWEC determination. Appellant specifically alleged

that her physician’s reports were delayed because she was not able to see her physician until 

June 2020 due to the COVID-19 virus. Her physician Dr. Goldman, disagreed with the report 

from Dr. Lal, the second opinion physician, upon which the LWEC determination was based in 

that she could only return to work for two hours a day, not four hours as recommended by Dr. Lal. 

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

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

erroneous.7

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 her burden 

3

See C.H., Docket No. 19-1114 (issued April30, 2020); B.H., Docket No. 18-1515 (issued June20, 2019); N.M., 

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

4

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 (June2013).

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

6

Supra note 4 atChapter 2.1501.4a (June 2013).

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20 C.F.R. § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).
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of proof to establish modification of her LWEC determination.8 Following such development as 

is deemed necessary, OWCP shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the December 18, 2020 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: August 8, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

8

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