K.N. and U.S. Postal Service, Post Office, Milwaukee, Wisconsin (Board decision, September 24, 2012)

ECAB remand decision. The Board set aside OWCP's March 15, 2011 denial and remanded K.N.'s wage-loss claim for review under its guidance for withdrawn light-duty jobs. Her entitlement to compensation remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

K.N., a Postal Service mail handler, worked in a modified position after accepted injuries from two workplace incidents. OWCP used her earnings in that job to determine her wage-earning capacity. The Postal Service later withdrew the light-duty position under its National Reassessment Process, and she sought wage-loss compensation. OWCP denied her claim under the ordinary rules for changing a wage-capacity determination. The Board found that OWCP had not applied its specific guidance for withdrawn light-duty jobs and ordered a new decision after developing the record.

Decision snapshot

• Authority: Wage-earning capacity under 5 U.S.C. § 8115(a) and OWCP's National Reassessment Process guidance.
• Outcome: March 15, 2011 decision set aside and case remanded.
• Key point: OWCP had to reassess the rated position and current disability under its withdrawn-job guidance.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.N., Appellant
)
)
and ) Docket No. 11-1283
) Issued: September 24, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, Employer
)
__________ )

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

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 2, 2011 appellant, through her representative, filed a timely appeal from the March 15, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification of its loss of wage-earning capacity determination. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly denied modification of its December 2, 2004 loss of wage-earning capacity determination.

FACTUAL HISTORY

On June 5, 2000 appellant, then a 45-year-old mail handler, sustained a left cervical strain, left lumbar strain, left shoulder strain, contusions and abrasions in the performance of

1
5 U.S.C. § 8101 et seq. duty when she fell down a hole.2 On January 30, 2002 she sustained acute lumbar and cervical strains in the performance of duty after an all-purpose container struck her and pushed her into a filing cabinet.3

On March 2, 2004 appellant accepted a full-time modified assignment as a pin-lock chocker technician with no wage loss. The duties included locking and unlocking trailers, chocking tires and inspecting the condition of trailers entering and exiting the dock facility.

In a decision dated December 2, 2004, OWCP determined that appellant’s wages in the modified position represented her wage-earning capacity in the open labor market: “Because you have worked in this position for more than 60 days, the determination has been made that it fairly and reasonably represents your wage-earning capacity.”

On September 15, 2005 OWCP’s hearing representative affirmed, noting that the physical requirements of the position were within the established medical restrictions and that appellant did not dispute that she was physically capable of performing the duties.

Effective May 19, 2010, the employing establishment withdrew appellant’s limited-duty under the National Reassessment Process (NRP). It notified her that it was unable to identify any available necessary tasks within her medical restrictions.

Appellant filed a claim for wage-loss compensation beginning May 19, 2010, as well as a recurrence of disability claim alleging that the employing establishment took away the job accommodating her work injury.

On August 19, 2010 OWCP denied appellant’s claim for wage-loss compensation. It found that the evidence failed to satisfy the criteria for modifying a formal loss of wage-earning capacity determination.

In a decision dated March 15, 2011, OWCP’s hearing representative affirmed the August 19, 2012 decision. The hearing representative found no medical evidence that appellant was unable to perform the duties of the position. The hearing representative found that appellant’s position was not makeshift, seasonal sporadic or temporary, “and as she worked at the position successfully for more than 60 days, [OWCP] properly determined her wage-earning capacity based upon her actual earnings.”

LEGAL PRECEDENT

FECA provides that the wage-earning capacity of an employee is determined by her actual earnings if her actual earnings fairly and reasonably represent her wage-earning capacity.4 Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor

2
OWCP File No. xxxxxx656.
3
OWCP File No. xxxxxx140.
4
5 U.S.C. § 8115(a).

2 market under normal employment conditions.5 The Board has long held that actual wages earned in the open labor market more accurately represent an employee’s earning capacity and constitute a more reliable gauge than a secondary method such as an opinion of a vocational rehabilitation specialist.6 While wages actually earned are generally the best measure of an injured worker’s capacity for employment, such wages may not be based on make-shift or sheltered employment.7

Once the loss of wage-earning capacity 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 rehabilitated, or the original determination was, in fact, erroneous.8 The burden of proof is on the party attempting to show a modification of the wage-earning capacity determination.9

FECA Bulletin No. 09-05 outlines very specific procedures for light-duty positions withdrawn pursuant to NRP. If, as in the present case, a wage-earning capacity decision has been issued and the employee claims compensation for total disability, OWCP must develop the evidence to determine whether a modification of that decision is appropriate.10

ANALYSIS

OWCP issued a formal loss of wage-earning capacity decision on December 2, 2004.
After the employing establishment withdrew her limited-duty position pursuant to NRP, appellant claimed a recurrence of total disability beginning May 19, 2010.

OWCP adjudicated appellant’s recurrence claim under the customary criteria for modifying a loss of wage-earning capacity determination. It did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined therein for claim such as this, in which limited-duty positions are withdrawn pursuant to NRP.

When a loss of wage-earning capacity decision has been issued, FECA Bulletin No.
09-05 requires OWCP to develop the evidence to determine whether a modification of the decision is appropriate.11 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain documentary evidence supporting that the position was an actual bona fide position. It requires OWCP to review whether a current medical report supports work-related disability and establishes that the current need for limited duty or medical treatment is a result of injury-related

5
Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).
6
Billie S. Miller, 15 ECAB 168 (1963).
7
A.J., Docket No. 10-619 (issued June 29, 2010); Connie L. Potratz-Watson, 56 ECAB 316 (2005).
8
Daniel J. Boesen, 38 ECAB 556 (1987).
9
Sue A. Sedgwick, 45 ECAB 211 (1993).
10
FECA Bulletin No. 09-05 (issued August 18, 2009).
11
Id.

3 residuals and to further develop the evidence from both the claimant and the employing establishment if the case lacks current medical evidence.12

Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these types of cases, may undertake further nonmedical development, such as requiring that the employing establishment address in writing whether the position on which the loss of wage-earning capacity determination was based was a bona fide position at the time of the rating, and to direct the employing establishment to review its files for contemporaneous evidence concerning the position.13

As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set aside OWCP’s March 15, 2011 decision and remand the case for further consideration. After proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate de novo decision on appellant’s entitlement to wage-loss compensation beginning May 19, 2010.14

CONCLUSION

The Board finds that this case is not in posture for decision. Further action is warranted.

12
Id. at §§ I.A.1-2.
13
Id. at § I.A.3.
14
See M.E., Docket No. 11-1416 (issued May 17, 2012).

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ORDER

IT IS HEREBY ORDERED THAT the March 15, 2011 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action.

Issued: September 24, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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