L.G. and U.S. Postal Service, Post Office, Waltham, MA (Board decision, May 12, 2011)

ECAB final decision. The Board set aside OWCP’s May 4, 2010 wage-earning capacity decision and remanded for a decision on the claimant’s recurrence claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

L.G., a postal mail processor with accepted carpal tunnel syndrome, had worked in a limited-duty assignment used to determine her wage-earning capacity. She sought compensation after the employer withdrew that assignment in March 2009, but she returned to work around August 14, 2009. OWCP addressed the matter as a request to modify the wage-earning capacity determination. The Board held that her claim covered a limited, closed period of disability and should instead be decided as a recurrence claim. It set aside OWCP’s decision and remanded for a final decision on that claim.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.; Board precedent distinguishing a limited recurrence from wage-earning capacity modification.
• Outcome: May 4, 2010 decision set aside; case remanded.
• Key point: A closed period of claimed disability calls for a recurrence decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.G., Appellant
)
)
and ) Docket No. 10-1614
) Issued: May 12, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
Waltham, MA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 2, 2010 appellant, through her representative, filed a timely appeal from the May 4, 2010 merit decision of the Office of Workers’ Compensation Programs, which denied modification of a wage-earning capacity determination.1

The Board has duly considered the matter and finds that the Office’s May 4, 2010 decision must be set aside. Once the Office issues a formal decision on wage-earning capacity, the rating should be left in place until the claimant requests resumption of compensation for total wage loss for more than a limited period of disability, in which instance the Office will need to evaluate the request according to the customary criteria for modifying a formal wage-earning capacity determination.2

1
Appellant, a 51-year-old mail processor, developed carpal tunnel syndrome in the performance of duty. She eventually accepted a limited-duty assignment, the earnings from which, the Office found, fairly and reasonably represented her wage-earning capacity. In a January 10, 2006 decision, the Office reduced appellant’s compensation to zero. 2 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).
 Appellant claimed a recurrence of disability on March 9, 2009 when the employing establishment withdrew her limited-duty assignment due to the National Reassessment Process. But she returned to work around August 14, 2009, so the period of disability for which she sought compensation was limited or closed. In such situations, the Office should adjudicate the claim as one of recurrence.3 The Board will therefore set aside the Office’s May 4, 2010 decision and remand the case for an appropriate final decision on appellant’s recurrence claim.

IT IS HEREBY ORDERED THAT the May 4, 2010 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order.

Issued: May 12, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3
See id.; Sandra D. Pruitt, 57 ECAB 126 (2005) (the Office is not precluded from adjudicating a limited period of employment-related disability when a formal wage-earning capacity determination has been issued); S.H., Docket No. 07-755 (issued November 9, 2007). In Sharon C. Clement, supra note 2, following a wage-earning capacity determination, the Office accepted a recurrence claim and paid compensation for a period of temporary total disability when the claimant stopped work on the advice of her physician pending carpal tunnel surgery. The surgeon released her to limited duty about a year after surgery. Cf. Elsie L. Price, 54 ECAB 734 (2003) (acceptance of disability for an extended period -- five years -- was sufficient to establish that modification of the wage-earning capacity determination was warranted).

2