United States Department of Labor

Employees’ Compensation Appeals Board

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G.C., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

102nd FIGHTER WING, 

OTIS AIR NATIONAL GUARD BASE, MA,

Employer

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Docket No. 21-1024

Issued: June 1, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On June 9, 2021 appellant filed a timely appeal from a May 17, 2021 nonmerit decision of 

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

assigned Docket No. 21-1024. 

On December 20, 2005 appellant, then a 61-year-old high voltage electrician (work leader), 

filed a traumatic injury claim (Form CA-1) alleging that on December 19, 2005 he sustained 

multiple traumas and experienced pain in his entire back area and ribs when he slipped on a step 

as he exited a truck while in the performance of duty. He stopped work on the date of injury and 

has not returned. On January 23, 2006 OWCP accepted appellant’s claim for T7-12 closed 

fracture/anterior spinal cord syndrome. It paid him wage-loss compensation on the supplemental 

rolls as of February 3, 2006 and on the periodic rolls as of February 19, 2006. On February 8, 

2006 appellant underwent posterior T10-L3 fusion, posterior T10-L3 bilateral pedicle screw rod 

instrumentation, and left posterior iliac crest bone marrow aspiration for bone graft. He underwent 

an anterior cervical fusion at C5-6 and C6-7 on March 12, 2008.

On June 12, 2019 OWCP referred appellant for a second opinion examination regarding 

his work capacity. In a July 2, 2019 medical report, Dr. Stephen Saris, a Board-certified 
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orthopedic surgeon and second opinion physician, noted appellant’s history of injury and medical 

treatment, and reviewed medical records. He discussed examination findings and diagnosed the 

accepted condition of T7-12 compression fracture. Dr. Saris advised that appellant had fully 

recovered from his thoracolumbar surgery and opined that given his intact neurological 

examination and imaging, he could return to sedentary work. He explained that appellant could 

not return to his former job due to his injury, deconditioning, and increased age. In an 

accompanying work capacity evaluation (Form OWCP-5c), Dr. Saris noted that appellant could 

work eight hours per day with restrictions that would apply for an indefinite period. 

On September 10, 2019 OWCP requested that appellant submit a report from his physician 

addressing his accepted employment-related condition and disability from work.

In an October 4, 2019 letter, the employing establishment informed OWCP that it had no 

jobs on base that appellant could safely perform in accordance with Dr. Saris’ July 2, 2019 report. 

It requested that OWCP proceed with vocational rehabilitation for placement in employment in 

the private sector.

On November 5, 2019 OWCP referred the case to a vocational rehabilitation counselor 

based on Dr. Saris’ work restrictions. 

In an undated rehabilitation action report received by OWCP on January 21, 2020, a 

vocational rehabilitation counselor noted that appellant had not been an active participant in the 

vocational rehabilitation process.

A memorandum of telephone call (Form CA-110) dated February 20, 2020 indicated that 

appellant did not want to participate in vocational rehabilitation. An April 6, 2020 Form CA-110 

indicated that appellant contended that he was aged and according to his wife he had dementia.

On April 10, 2020 the vocational rehabilitation counselor identified the position of printed 

circuit board assembly, Department of Labor, Dictionary of Occupational Titles (DOT) No. 

726.684-110 as suitable to appellant’s work experience, physical restrictions, and education.

In a March 20, 2020 letter, Dr. Peter Crosson, an attending Board-certified internist, 

requested that appellant be excused from work due to his cognitive deficit and severe osteoarthritis. 

In a June 11, 2020 letter, appellant informed OWCP that he was unable to participate in 

vocational rehabilitation and could not return to gainful employment due to his health issues and 

age. He submitted an additional letter of even date from Dr. Crosson, who advised that appellant 

was unable to perform sedentary or physical work due to permanent pain issues related to his 2005 

work-related thoracic condition and subsequent surgical repairs.

OWCP, in a letter dated August 19, 2020, notified appellant of the penalties under 5 U.S.C. 

§ 8113(b) for failing to cooperate with vocational rehabilitation without good cause. It noted that 

the results of tests and evaluations performed by the vocational rehabilitation counselor clearly 

showed that he could perform the duties of a printed circuit board assembly person. OWCP 

advised appellant that, if he failed or refused to participate in vocational rehabilitation without 
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good cause, his compensation benefits would be reduced. It afforded him 30 days to contact 

OWCP and his rehabilitation counselor to make a good faith effort to participate in the 

rehabilitation effort designed to return him to gainful employment. OWCP informed appellant 

that, if he believed he had a good reason for not participating in the rehabilitation effort, he should 

respond within 30 days, with reasons for noncompliance, and submit evidence in support of his 

position. It noted that, if he did not comply with the instructions contained in the letter within 30 

days, the rehabilitation effort would be terminated and action would be taken to reduce his 

compensation under 5 U.S.C. § 8113(b).

In a September 14, 2020 letter, Dr. Crosson continued to advise that appellant was 

unsuitable for work. He noted that appellant had severe osteoarthritis in the limbs and spine which 

required multiple surgeries, psoriatic arthritis in the joints which caused significant chronic pain, 

peripheral vascular disease of the legs, diastolic dysfunction of the heart, mild cognitive 

impairment which affected his ability to perform tasks requiring mental concentration and to 

undergo complex tasks, and peripheral neuropathy which affected his ability to ambulate and stand 

in one place for very long.

On October 28, 2020 OWCP closed its vocational efforts as appellant had refused 

rehabilitation services. 

By decision dated November 20, 2020, OWCP reduced appellant’s compensation to zero, 

effective November 8, 2020, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, for his failure

to cooperate with vocational rehabilitation without good cause. It noted that he did not respond to 

the August 19, 2020 letter. 

On April 27, 2021 appellant requested reconsideration and submitted additional medical

evidence including operative reports, discharge and post endoscopy instructions, diagnostic 

reports, laboratory test results, and a consent form dated from December 22, 2019 to 

March 18, 2021. 

In a September 28, 2020 attending physician’s report (Form CA-20), Dr. Crosson noted a 

date of injury as December 19, 2005. He diagnosed chronic back and other joint pain and checked 

a box marked “Yes” indicating that the diagnosed condition was caused or aggravated by the 

December 19, 2005 employment activity of falling from a truck. Dr. Crosson advised that 

appellant was totally disabled from work. 

Appellant also resubmitted copies of Dr. Crosson’s March 20 and June 11, 2020 letters.

OWCP, by decision dated May 17, 2021, denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). 
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The Board, having duly considered the matter, concludes that the case is not in posture for 

decision.1

Modification of an LWEC determination is warranted if 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. 2 The burden of proof is 

on the party seeking modification of the wage-earning capacity determination.3 Unlike 

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

modification of a LWEC determination.4

The Board finds that appellant’s April 27, 2021 request for reconsideration was, in fact, a 

request for modification of the November 20, 2020 LWEC determination. Appellant set forth 

evidence that his restrictions had changed and that he was totally disabled from work. It is well 

established that a claimant may establish that a modification of a LWEC determination is 

warranted if there has been a showing that there was, in fact, a material change in the nature and 

extent of his injury-related condition.5

The Board has held that when a 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.6

As OWCP improperly reviewed the case under the standard for a timely 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 November 20, 2020 LWEC determination.7 Following this and other 

such further development as deemed necessary, OWCP shall issue a de novo decision.

1 C.H., Docket No. 19-1114 (issued April30, 2020); B.H., Docket No. 18-1515 (issued June 20, 2019); N.M., 

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

2

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).

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Id. at § 10.511.

4

J.J., Docket No. 21-0479 (issued November 29, 2021); W.W., Docket No. 09-1934 (issued February 24, 2010);

Gary L. Moreland, 54 ECAB 638 (2003).

5

See L.M., Docket No. 20-1038 (issued March 10, 2021);see also C.R., Docket No. 14-0111 (issued April4, 2014);

SharonC. Clement, 55 ECAB 552 (2004).

6

See W.B., Docket No. 21-0272 (issued August4, 2021); L.P., Docket No. 18-1429 (March8, 2019).

7

See L.H., Docket No. 18-1787 (issued July 29, 2019); R.Z., Docket No. 17-1455 (issued February 15, 2019).
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IT IS HEREBY ORDERED THAT the May 17, 2021 decision of the Office of Workers’

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

with this order of the Board.

Issued: June 1, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board