United States Department of Labor

Employees’ Compensation Appeals Board

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M.R., Appellant

and

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, CARSON NATIONAL FOREST, 

Taos, NM, Employer

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Docket No. 21-0548

Issued: March 15, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

On February 9, 2021 appellant filed a timely appeal from an August 19, 2020 nonmerit 

decision of the Office of Workers’ Compensation Program (OWCP). The Clerk of the Appellate 

Boards assigned Docket No. 21-0548.

1

This case was previously before the Board on an unrelated issue. 2 The facts and 

circumstances as set forth in the Board’s prior decision is incorporated herein by reference. The 

relevant facts are as follows. 

On November 12, 1987 appellant, then a 31-year-old firefighter, filed a traumatic injury 

claim (Form CA-1) alleging that on November 9, 1987 he slipped and fell on wet leaves while in 

the performance of duty. He stopped work that day. OWCP accepted the claim for cervical strain, 

1 The Board notes that, following the August 19, 2020 decision, appellant submitted additional evidence to OWCP. 

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 Docket No. 14-0549 (issued June11, 2014). 
2

low back strain, and left deltoid muscle tear. It paid appellant wage-loss compensation on the 

supplemental rolls effective December 26, 1987. 

By decision dated March 13, 1996, OWCP issued a loss of wage-earning capacity (LWEC) 

determination based on appellant’s ability to earn wages in the constructed position of food 

assembler, Dictionary of Occupational Titles (DOT) No. 319.484-010. The position had a light 

strength level and required the ability to push, pull or lift up to 10 pounds frequently, and up to 20 

pounds occasionally. OWCP continued to pay appellant compensation based upon his wageearning capacity on the periodic rolls effective March 31, 1996. 

On May 5, 2015 appellant requested modification of the March 13, 1996 LWEC

determination. By decision dated April 4, 2018, OWCP denied modification of its March 13, 1996 

LWEC determination. It accorded the special weight of the medical opinion evidence to the 

February 13, 2017 report of Dr. Paul Saiz, a Board-certified orthopedic surgeon, who had 

conducted an impartial medical evaluation to resolve the conflict of medical opinion concerning 

appellant’s work capacity. Dr. Saiz opined that appellant’s medical condition had not worsened 

and that he remained capable of performing the duties of a food assembler. 

On January 14, 2019 appellant requested reconsideration. By decision dated March 6, 

2019, OWCP denied modification.

On August 4, 2020 appellant again requested reconsideration. Evidence of record 

following OWCP’s March 6, 2019 decision included reports from Dr. Pamela Black, a Boardcertified physiatrist, dated February 27, March 19, April 3 and 23, June 5, and August 6, 2019, 

which noted appellant’s physical examination findings. Medical reports fromDr. Thomas Whalen, 

a Board-certified internist and anesthesiologist, were also received dated February 24, March 16,

and April 15, 2020 which related appellant’s physical examination findings and concluded that 

appellant was unable to return to work. In a May 1, 2020 report, Dr. Whalen noted her current 

symptoms and concluded that she was unable to return to work. 

By decision dated August 19, 2020, OWCP summarily denied appellant’s request for 

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

The decision failed to mention or discuss the evidence received following its March 6, 2019 

decision. 

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

decision.3

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. 4 The burden of proof is 

on the party seeking modification of the wage-earning capacity determination.5 Unlike 

3 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).

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 (June 2013).

5

Id. at § 10.511.
3

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

modification of an LWEC determination.6 Requests for modification should be reviewed carefully 

to determine whether the claimant is seeking a reconsideration of a recently issued LWEC 

determination, as opposed to a modification of the LWEC determination.7 

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

modification of the March 13, 1996 LWEC determination. Appellant set forth evidence that his

restrictions had changed and that he was rendered totally disabled. 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 there was, in fact, a material change in the nature and extent of h is injuryrelated condition.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 summarily 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 Following any further 

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

6

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).

7

Supra note 4 atChapter 2.1501.4a (June 2013).

8

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).

9

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

10 See 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 August 19, 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: March 15, 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