United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

U.S. POSTAL SERVICE, TEMPLETON POST 

OFFICE, Colorado Springs, CO, Employer

__________________________________________

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Docket No. 23-0457

Issued: September 14, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 15, 2023 appellant, through counsel, filed a timely appeal from a February 10, 

2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to modify a May 3, 2022 loss 

of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On April 2, 2020 appellant, then a 47-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that he sustained a right ankle injury due to factors of his federal 

employment including the weightbearing activities of his job, including walking, standing, 

ascending/descending stairs, and lifting/carrying mail. He noted that he first became aware of his 

claimed injury on January 27, 2020 and first realized its relation to his federal employment on 

March 24, 2020. Appellant did not stop work.

3

On July 9, 2020 OWCP referred appellant and the case record, along with a series of 

questions and a statement of accepted facts (SOAF), for a second opinion examination and 

evaluation with Dr. John D. Douthit, a Board-certified orthopedic surgeon. It requested that

Dr. Douthit provide an opinion regarding appellant’s injury-related medical condition and his 

ability to work.

In a July 27, 2020 report, Dr. Douthit discussed appellant’s factual and medical history,

and advised that appellant presently complained of pain and swelling in his right ankle. He detailed 

the results of his physical examination, noting that appellant walked with a limp but exhibited no 

laxity when the right ankle was stressed. Appellant had full range of motion of all joints of his 

upper and lower extremities with the exception of his right ankle. Dr. Douthit indicated that 

appellant should not return to a job that required extensive walking and standing. In a July 27, 

2020 work capacity evaluation (Form OWCP-5c), he diagnosed instability and traumatic arthritis 

of the right ankle, and indicated that appellant could perform sedentary work for eight hours per 

day with restrictions, including walking and standing for up to one hour per day, and lifting, 

pushing, and pulling up to 10 pounds for eight hours.

On August 4, 2020 OWCP requested that Dr. Douthit provide clarification of his July 27, 

2020 opinion with respect to the nature of appellant’s right ankle condition and his ability to work. 

In an August 6, 2020 report, Dr. Douthit indicated that the work-related damage to appellant’s 

right ankle was permanent, and he should be permanently restricted from walking or climbing 

more than two hours per day. 

By decision dated August 11, 2020, OWCP accepted appellant’s claim for permanent 

aggravation of traumatic osteoarthritis of the right ankle.

3 Appellant previously sustained a nonwork-related right ankle fracture/dislocation on August 7, 2018, which 

required open reduction and fixation surgery. He returned to work in February 2019.
3

Appellant stopped work in late-2020 and OWCP paid him wage-loss compensation on the 

supplemental rolls, effective November 2, 2020.4

On August 20, 2021 OWCP again referred appellant for a second opinion examination and 

evaluation to Dr. Douthit, and requested that he provide an opinion regarding appellant’s injuryrelated medical condition and his ability to work.

In an October 11, 2021 report, Dr. Douthit discussed appellant’s factual and medical 

history. He detailed the results of his physical examination, noting that appellant walked with a 

minimal limp without obvious pain. Appellant’s right ankle was thickened and swollen. 

Dr. Douthit indicated that appellant was unlikely to benefit from further right ankle surgery, and 

opined that he would continue to experience pain and limited motion in his right ankle. He advised 

that appellant could return to work in a job that required minimal walking. In an October 11, 2021 

Form OWCP-5c, Dr. Douthit diagnosed right ankle fracture and ankylosis of the right ankle/foot,

and indicated that appellant could perform sedentary work for eight hours per day with restrictions, 

including walking and standing for up to one hour, and lifting, pushing, and pulling up to 20 pounds 

for eight hours.

On February 4, 2022 the employing establishment offered appellant a full-time job as a 

modified city carrier, a position which involved working customer inquiry cases, answering the 

telephone, and filing/shredding documents. The physical duties of the position included sitting for 

seven hours per day, walking for one hour, fine grasping/sorting for eight hours, and lifting, 

pushing, and pulling up to 20 pounds for eight hours. The modified city carrier position paid 

$976.21 per week and appellant began working in the position on February 7, 2022.

In an April 8, 2022 report, Dr. George Johnson, Board-certified in occupational medicine, 

noted that appellant presented complaining of ankle pain. He reported physical examination 

findings and diagnosed history of ankle surgery and closed fracture of the right ankle, but he did 

not comment on appellant’s ability to work.

On April 27, 2022 the employing establishment advised OWCP that the current pay rate 

for appellant’s date-of-injury position as a city carrier was $881.56.

By decision dated May 3, 2022, OWCP reduced appellant’s wage-loss compensation to 

zero, effective February 7, 2022, based on its determination that his earnings as a modified city 

carrier fairly and reasonably represented his wage-earning capacity. It noted that the physical 

requirements of the position were within the October 11, 2021 work restrictions of Dr. Douthit, 

OWCP’s referral physician. OWCP further indicated that, since appellant had demonstrated the 

ability to perform the duties of a modified city carrier for 60 days or more, this position was

considered suitable to his partially-disabling condition. It advised that his actual earnings of 

$976.21 now exceeded the current wages of the job held when injured. Therefore, according to 

the provisions of 5 U.S.C. § 8106 and 5 U.S.C. § 8115, appellant’s entitlement to compensation 

for wage loss ended the date he was reemployed with no loss in earning capacity, i.e., February 7, 

4 OWCP paid appellant wage-loss compensation on the periodic rolls, effective November 7, 2021.
4

2022, and his compensation payments were terminated as of that date. OWCP noted that the

decision did not affect coverage of appellant’s medical benefits.

On July 26, 2022 appellant, through counsel, requested modification of the May 3, 2022 

LWEC determination.

Appellant submitted an April 12, 2022 report from Dr. Jack L. Rook, a Board-certified 

physiatrist, who indicated that he agreed with Dr. Douthit’s work restrictions of limiting appellant 

to walking for one hour per day and standing for one hour per day. Dr. Rook recommended that 

appellant undergo right ankle replacement surgery, but recommended that he follow Dr. Douthit’s 

work restrictions “until a definitive procedure is performed and he recuperates from it.” On 

June 14 and August 11, 2022 he again recommended that appellant undergo right ankle 

replacement surgery.

In a May 6, 2022 narrative report, Dr. Johnson noted that appellant presented complaining 

of increased pain in his right ankle and foot. He detailed his physical examination findings, noting 

that appellant had limited range of motion of the right ankle, and diagnosed history of ankle surgery 

and closed fracture of the right ankle. Dr. Johnson indicated that appellant could lift up to five 

pounds, push or pull up to 10 pounds, walk for a half hour per day, and stand for a half hour per 

day. Appellant could not stand or walk more than five minutes per hour, and could not engage in 

kneeling or squatting. Dr. Johnson provided similar findings in narrative reports dated August 2, 

and September 2 and 30, 2022. In the August 2, 2022 report, he indicated, “[Appellant] is not 

working because he refuses to work due to his injury. Regardless of his restrictions, [appellant]

refused to return to work.”

In May 6, August 2, and September 2 and 30, 2022 duty status reports (Form CA-17),

Dr. Johnson listed a date of injury of January 27, 2020 and provided diagnoses “due to injury” of

closed fracture of right ankle and history of right ankle surgery. He noted that appellant could 

work eight hours per day, five days per week, with restrictions of intermittently lifting up to five 

pounds, standing for five minutes per hour, and walking for five minutes per hour. In the May 6, 

2022 duty status report, Dr. Johnson advised that appellant could not engage in kneeling or 

squatting, and needed to sit or stand as tolerated.

By decision dated November 1, 2022, OWCP determined that appellant failed to meet his 

burden of proof to modify the May 3, 2022 LWEC determination. It found that he did not meet 

any of the three criteria for establishing that such modification was warranted.

On November 21, 2022 appellant, through counsel, requested reconsideration of the 

May 3, 2022 decision.

In a November 10, 2022 report, Dr. Kenneth J. Hunt, a Board-certified orthopedic surgeon, 

reported physical examination findings and proposed right ankle surgery. November 11, 2022 

x-rays of appellant’s right ankle revealed interval breakage of a syndesmosis screw suggesting 

non-union of the syndesmosis arthrodesis; and radiolucency at the tibiotalar joint suggesting nonunion at this location.

Appellant submitted narrative reports, dated November 17 and December 15, 2022, and 

January 26, 2023, in which Dr. Johnson diagnosed closed fracture of the right ankle and history of 
5

right ankle surgery, and indicated that appellant could lift up to five pounds, push or pull up to 10 

pounds, walk for a half hour per day, and stand for a half hour per day. He could not stand or walk 

more than five minutes per hour, and could not engage in kneeling or squatting.

In duty status reports, dated November 17 and December 15, 2022, and January 26, 2023,

Dr. Johnson listed a date of injury of January 27, 2020 and provided diagnoses “due to injury” of 

closed fracture of the right ankle and history of right ankle surgery. He noted that appellant could 

work eight hours per day, five days per week, with restrictions of lifting up to five pounds, standing 

for five minutes per hour, and walking for five minutes per hour.

Appellant submitted an offer for a city carrier position from the employing establishment,

which he signed on January 21, 2023. He also submitted an administrative form showing that he 

returned to work on that date.

By decision dated February 10, 2023, OWCP denied modification of its November 1, 2022 

decision.

LEGAL PRECEDENT

A wage-earning capacity determination is a finding that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages.5 Generally, wages actually earned are the best measure of wage-earning capacity and, in 

the absence of evidence showing that they do not fairly and reasonably represent the injured 

employee’s wage-earning capacity, must be accepted as such measure.6 A determination regarding 

whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be 

made only after an employee has worked in a given position for at least 60 days. 7 Wage-earning 

capacity may not be based on an odd-lot or make-shift position designed for an employee’s 

particular needs, a temporary position when the position held at the time of injury was permanent, 

or a position that is seasonal in an area where year-round employment is available.8 Compensation 

payments are based on the wage-earning capacity determination, and it remains undisturbed until 

properly modified.9

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

such determination is not warranted unless there is a material change in the nature and extent of 

the injury-related condition, the employee has been retrained or otherwise vocationally 

5

5 U.S.C. § 8115(a); see O.S., Docket No. 19-1149 (issued February 21, 2020); Mary Jo Colvert, 45 ECAB 575 

(1994); Keith Hanselman, 42 ECAB 680 (1991).

6

See J.A., Docket No. 18-1586 (issued April 9, 2019).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Wages, Chapter 2.815.5 (June 2013).

8

See M.S., Docket No. 19-0692 (issued November 18, 2019); James D. Champlain, 44 ECAB 438, 440-41 (1993); 

Federal (FECA) Procedure Manual, id. at Chapter 2.815.5c (June 2013).

9

See M.F., Docket No. 18-0323 (issued June 25, 2019).
6

rehabilitated, or the original determination was, in fact, erroneous.10 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.11

ANALYSIS

The Board finds that appellant has not met his burden of proof to modify the May 3, 2022 

LWEC determination.

Appellant has not met any of the three criteria for establishing that modification of the 

May 3, 2022 LWEC determination is warranted. First, appellant has not shown that the original 

determination was, in fact, erroneous.

12

 By decision dated May 3, 2022, OWCP properly reduced 

appellant’s wage-loss compensation to zero, effective February 7, 2022, based on its determination 

that his earnings as a modified city carrier fairly and reasonably represented his wage-earning 

capacity. At the time of this decision, appellant had demonstrated the ability to perform the duties 

of a full-time modified city carrier for 60 days or more, and therefore this position was considered 

suitable to his partially-disabling condition.13 The October 11, 2021 work restrictions of

Dr. Douthit, OWCP’ referral physician, represented the best assessment of appellant’s ability to 

work when he began working in the modified city carrier position on February 7, 2022. 

Dr. Douthit indicated that appellant could perform sedentary work for eight hours per day with 

restrictions, including walking for up to one hour per day, standing for up to one hour, and lifting, 

pushing, and pulling up to 20 pounds for eight hours. The Board notes that the physical 

requirements of the position were within the work restrictions provided by Dr. Douthit. 

Appellant’s actual earnings of $976.21 as a modified city carrier exceeded the current wages 

($881.56) of the job held when injured. Therefore, according to the provisions of 5 U.S.C. § 8106 

and 5 U.S.C. § 8115, appellant’s entitlement to compensation for wage loss ended the date he was 

reemployed with no loss in earning capacity, i.e., February 7, 2022, and his compensation 

payments were properly terminated as of that date.

Second, appellant has not shown that a material change in the nature and extent of the

accepted work injury prevented him from working in the position in which he was rated, i.e., the 

position of modified city carrier.14 Appellant submitted additional medical evidence after OWCP 

issued its May 3, 2022 LWEC determination, but this evidence does not establish a material change 

in the nature and extent of his accepted work injury such that he was prevented from working as a 

modified city carrier.

10 J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 

45 ECAB 211 (1993). See also Federal (FECA) Procedure Manual, Part 2 --Claims, Modification of Loss of WageEarning Capacity Decisions, Chapter 2.1501.3a (June 2013).

11 O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

12 See supra note 10.

13 See supra notes 6 and 7.

14 See supra note 10.
7

In narrative reports, dated May 6, August 2, and September 2 and 30, 2022, November 17 

and December 15, 2022, and January 26, 2023, Dr. Johnson reported physical examination 

findings and diagnosed closed fracture of the right ankle and history of right ankle surgery. He

indicated that appellant could lift up to five pounds, push or pull up to 10 pounds, walk for a half 

hour per day, and stand for a half hour per day. Appellant could not stand or walk more than five 

minutes per hour, and could not engage in kneeling or squatting. In the August 2, 2022 report,

Dr. Johnson indicated, “[Appellant] is not working because he refuses to work due to his injury. 

Regardless of his restrictions he refused to return to work.”

In duty status reports, dated May 6, August 2, September 2 and 30, November 17 and 

December 15, 2022, and January 26, 2023, Dr. Johnson listed a date of injury of January 27, 2020 

and provided diagnoses “due to injury” of closed fracture of the right ankle and history of right 

ankle surgery. He noted that appellant could work eight hours per day, five days per week, with 

restrictions of intermittently lifting up to five pounds, standing for five minutes per hour, and 

walking for five minutes per hour. In the May 6, 2022 duty status report, Dr. Johnson also advised 

that appellant could not engage in kneeling or squatting, and needed to sit or stand as tolerated.

Although Dr. Johnson recommended increased work restrictions in the above-described 

reports, these reports are of limited probative value in supporting appellant’s request for 

modification of the May 2, 2022 LWEC determination becauseDr. Johnson did not provide a wellrationalized opinion that the restrictions were necessitated by the accepted employment injury. 

The Board has held that reports that do not contain medical rationale explaining how the accepted 

employment injury caused or contributed to the claimed disability are of limited probative value 

regarding causal relationship.15 Therefore, this evidence is insufficient to establish a material 

change in the nature and extent of appellant’s accepted work injury such that he was prevented 

from working as a modified city carrier.

Appellant submitted an April 12, 2022 report from Dr. Rook who indicated that he agreed 

with Dr. Douthit’s work restrictions of limiting appellant to walking for one hour per day and 

standing for one hour per day. Dr. Rook recommended that appellant undergo right ankle 

replacement surgery, but recommended that he follow Dr. Douthit’s work restrictions “until a 

definitive procedure is performed and he recuperates from it.” On June 14 and August 11, 2022 

he again recommended that appellant undergo right ankle replacement surgery. In a November 10, 

2022 report, Dr. Hunt reported physical examination findings and proposed right ankle surgery. 

November 11, 2022 x-rays of appellant’s right ankle revealed interval breakage of a syndesmosis 

screw suggesting non-union of the syndesmosis arthrodesis; and radiolucency at the tibiotalar joint 

suggesting non-union at this location.

The Board finds that these reports are of no probative value in supporting appellant’s 

request for modification of the May 2, 2022 LWEC determination because they do not contain an 

opinion that appellant’s injury-related condition had changed such that he was prevented from 

working as a modified city carrier. The Board has held that medical evidence that does not offer 

an opinion regarding the cause of an employee’s condition or disability is of no probative value on 

15 See T.T., Docket No. 18-1054 (issued April8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
8

the issue of causal relationship.

16

 Therefore, this evidence is insufficient to establish a material 

change in the nature and extent of appellant’s accepted work injury such that he was prevented 

from working as a modified city carrier.

The Board further finds that the record does not establish that appellant was subsequently 

retrained or vocationally rehabilitated.17 For these reasons, appellant has not met his burden of 

proof to modify the May 3, 2022 LWEC determination. 

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met his burden of proof to modify the May 3, 2022 

LWEC determination.

ORDER

IT IS HEREBY ORDERED THAT the February 10, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 14, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

16 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17 See supra note 10.