United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.L., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

HANSCOM AIR FORCE BASE,

Bedford, Massachusetts, Employer

__________________________________________

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Docket No. 22-0409

Issued: July 19, 2022

Appearances: Case Submitted on the Record

Marc J. Levy, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

On January 26, 2022 appellant, through counsel, filed a timely appeal from a January 18, 

2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards assigned the appeal Docket No. 22-0409.

On October 1, 2015 appellant, then a 60-year-old powered support systems mechanic, filed 

a traumatic injury claim (Form CA-1) alleging that, during the weeks prior to July 11, 2015, he 

experienced throbbing pain in the back of his head and upper and lower back down both sides of 

his legs as he performed oil and battery changes and daily generator testing, which required lifting 

several 50-foot copper cables while in the performance of duty. He stopped work on July 13, 2015.

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

By decision dated November 18, 2015, OWCP denied the claim, finding that the medical 

evidence of record was insufficient to establish a diagnosed medical condition causally related to 

the accepted employment incident. 

Appellant continued to request reconsideration of the denial of his claim. 

By decision dated June 2, 2017, OWCP vacated the November 18, 2015 decision, finding

that the medical evidence submitted established that appellant sustained chronic lumbar strain,

permanent aggravation of preexisting lumbar degenerative disc disease, and bilateral lumbosacral 

radiculopathy, causally related to the accepted July 11, 2015 employment incident. 

By separate decision of even date, OWCP formally accepted appellant’s claim for chronic 

lumbar strain, lumbar region radiculopathy, and permanent aggravation of preexisting lumbar 

degenerative disc disease.

On February 21, 2019 appellant was referred for vocational rehabilitation based on a

November 20, 2018 report and a November 21, 2018 work capacity evaluation (Form OWCP-5c) 

submitted by Dr. Steven A. Silver, a Board-certified orthopedic surgeon and an OWCP second 

opinion physician, who opined that appellant was capable of performing part-time, limited-duty 

work with restrictions.

On May 7, 2019 a vocational rehabilitation counselor identified three positions as 

appropriate for appellant, including customer service representative. He determined that 

appellant’s training and work experience qualified him for a customer service representative with 

vocational preparation of six months to one year, and the position of customer service 

representative was being performed in sufficient numbers so as to make it reasonably available 

within his commuting area. The vocational rehabilitation counselor further determined that the 

physical demands of the customer service representative position were within the medical 

restrictions set forth in Dr. Silver’s November 21, 2018 Form OWCP-5c.

Appellant subsequently submitted a June 7, 2019 report from Dr. Byron V. Hartunian, an 

attending orthopedic surgeon, who opined that appellant was totally disabled from work and was 

incapable of undergoing vocational rehabilitation. OWCP thereafter found a conflict in the 

medical opinion evidence between Dr. Hartunian and Dr. Silver regarding appellant’s work 

capacity.

On October 23, 2019 OWCP referred appellant to Dr. John H. Chaglassian, a Boardcertified orthopedic surgeon, for an impartial medical examination. 

In a November 18, 2019report, Dr. Chaglassian, serving as the impartial medical examiner 

(IME), agreed with Dr. Silver and opined that appellant was capable of performing part-time work 

with restrictions.

By decision dated March 23, 2020, OWCP finalized a February 3, 2020 proposed reduction 

of appellant’s compensation, based on his capacity to earn wages in the constructed position of 

customer service representative, effective March 29, 2020.
3

OWCP received additional evidence following OWCP’s March 23, 2020 decision, 

including medical records dated February 8, 2018 through January 14, 2021 from Dr. Hartunian;

Dr. Simon N. McRae, a Board-certified urologist; Jessica Day and Taylor K. Boudreau, nurse 

practitioners; Kelsey Toomey, a psychologist; Melissa J. Labonte, a Board-certified advanced 

practical registered nurse; Laura Smith, a licensed practical nurse; Dr. Richard A. Haas, a Boardcertified internist; Dr. Thomas Kessman, a Board-certified orthopedic surgeon; Dr. Benjamin D. 

Prentiss, Board-certified in cardiovascular disease; Dr. Kelly E. Hoisington, a family practitioner;

Dr. Judy Bavongkhoun, an optometrist; and Dr. Mukti Patel, a Board-certified family practitioner. 

All of these providers addressed appellant’s disability status and medical conditions.

On October 20, 2021 appellant, through counsel, requested reconsideration. 

OWCP, by decision dated January 18, 2022, 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 this matter, concludes that this case is not in posture 

for decision.2

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 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 October 20, 2021 request for reconsideration was, in fact, 

a request for modification of the March 23, 2020 LWEC determination. It is well established 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 

2 C.H., Docket No. 19-1114 (issued April 30, 2020); B.H., Docket No. 18-1515 (issued June 20, 

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).

6

Supra note 3, Federal (FECA) Procedure Manual, Chapter 2.1501.4a (June 2013).

7

20 C.F.R. § 10.511;Y.R.,Docket No. 18-1464 (issued February 22, 2019).
4

of proof to establish modification of the March 23, 2020 LWEC determination.8 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 January 18, 2022 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: July 19, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, 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).