K.S. and U.S. Postal Service, Processing & Distribution Facility, Denver, CO (Board decision, September 12, 2012)

ECAB remand decision. The Board set aside OWCP's August 4 and September 12, 2011 decisions and directed it to combine K.S.'s related injury files. Her wage earning capacity remains unresolved pending a new decision. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

OWCP reduced K.S.'s compensation after finding that she could earn wages as a cashier. Its decision relied on medical evidence from two earlier work injury files. Those files were missing from the record supplied to the Board, preventing an informed review of the wage earning capacity ruling. The Board set aside both the merits decision and a later reconsideration denial, and directed OWCP to combine the files and decide the case again.

Decision snapshot

• Authority: Complete record needed for Board review of wage earning capacity.
• Outcome: August 4 and September 12, 2011 decisions set aside and remanded.
• Key point: The Board could not assess a wage capacity ruling without the files OWCP had relied on.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.S., Appellant
)
)
and ) Docket No. 12-470
) Issued: September 12, 2012
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION FACILITY, Denver, CO,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 3, 2012 appellant, through her attorney, filed a timely appeal from an August 4, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) reducing her compensation based on its finding that she had the capacity to earn wages as a cashier. She also appeals from a September 12, 2011 nonmerit decision denying her request for reconsideration. The Board docketed the appeal as No. 12-470.

In a decision dated February 11, 2011, OWCP found that appellant had the physical and vocational ability to work as in the selected position of cashier II and reduced her compensation benefits accordingly. By decision dated August 4, 2011, an OWCP hearing representative affirmed the February 11, 2011 constructed wage-earning capacity determination. In both its February 11 and August 4, 2011 decisions, OWCP considered medical evidence from appellant’s prior work injuries in file numbers xxxxxx783 and xxxxxx382.

The Board has duly considered the matter and notes that it does not have the case record for file numbers xxxxxx783 and xxxxxx382. The absence of this evidence precludes the Board from properly reviewing OWCP’s loss of wage-earning capacity determination as it relied upon evidence from file numbers xxxxxx783 and xxxxxx382 in reaching its conclusions. As the case record submitted to the Board would not permit an informed adjudication of the case, the Board finds that the case is not in posture for decision on appeal and must be remanded to OWCP. On remand, OWCP should combine the present case record, file number xxxxxx355, with the case records for file numbers xxxxxx783 and xxxxxx382. Following this and any further necessary development, it should issue an appropriate decision.

IT IS HEREBY ORDERED THAT the September 12 and August 4, 2011 decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: September 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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