M.B. and U.S. Postal Service, Dallas P & DC, Dallas, TX (Board decision, November 26, 2012)

ECAB remand decision. The Board set aside OWCP's January 30, 2012 denial of M.B.'s claim for total disability compensation and remanded for review under the rules for modifying a wage-earning capacity determination. Whether she is owed compensation for the claimed period remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

M.B., a postal worker, sought total disability compensation for a period after OWCP had set her wage-earning capacity based on a part-time modified clerk job. OWCP treated her request as a recurrence claim. The Board found that OWCP should instead decide whether the earlier wage-earning capacity determination should be modified, considering her arguments about the job and her medical evidence. It set aside the denial and returned the case for a new decision.

Decision snapshot

• Authority: OWCP procedure for modifying wage-earning capacity findings.
• Outcome: January 30, 2012 decision set aside and remanded.
• Key point: A later total-disability claim required analysis of the existing wage capacity finding.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.B., Appellant
)
)
and ) Docket No. 12-749
) Issued: November 26, 2012
U.S. POSTAL SERVICE, DALLAS P & DC,
)
Dallas, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On February 21, 2012 appellant filed a timely appeal from a January 30, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim that she was totally disabled for the period November 1, 1999 to October 29, 2005 due to the accepted conditions. The Board docketed the appeal as No. 12-749.1

The Board has duly reviewed the record and finds that the case is not in posture for decision. By decision dated June 11, 1999, OWCP reduced appellant’s compensation based on her actual part-time earnings as a modified distribution clerk.2 She stopped work on November 1, 1999 and filed a recurrence claim. Appellant continued to receive wage-loss 1 On May 28, 1993 appellant, a full-time manual clerk, filed an occupational disease claim alleging that she developed bilateral carpal tunnel syndrome as a result of work duties. She underwent a right carpal tunnel release in October 1993 and a release on the left in August 1994. OWCP accepted bilateral carpal tunnel syndrome and appellant was placed on the periodic compensation rolls. The claim was adjudicated by OWCP under file number xxxxxx270. Under a separate claim, adjudicated under file number xxxxxx169, OWCP accepted cervical and lumbar strains. Additional accepted conditions include cervical herniated disc and failed cervical syndrome, lumbar herniated disc and spondylosis with myelopathy. Appellant returned to limited duty, four hours a day, on August 5, 1998. 2 In a second June 11, 1999 decision, OWCP denied appellant’s claim for disability compensation for the period December 17, 1998 to March 8, 1999. compensation for four hours a day. In merit decisions dated January 17, 2001, October 30, 2004 and January 10, 2005, OWCP denied that appellant sustained a recurrence of total disability on November 1, 1999. In a May 5, 2005 decision, it denied modification of the June 11, 1999 wage-earning capacity decision. On September 29, 2005 appellant underwent lumbar surgery, and began receiving compensation at the full-time rate, effective October 30, 2005.3

On December 8, 2010 appellant, through her representative, requested reconsideration.
In a June 14, 2011 decision, OWCP denied modification of the June 11, 1999 wage-earning capacity decision. On December 19, 2011 appellant, again requested reconsideration. Her representative asserted that the June 11, 1999 decision was in error because the position on which the decision was based was for four hours a day and the duties were “makeshift work” and “odd lot.” He further asserted that appellant’s medical condition had worsened when she stopped work on November 1, 1999, as shown by having a morphine pump placement on May 17, 2000 and that the condition eventually necessitated the lumbar surgery on September 29, 2005. Appellant’s representative submitted supportive medical evidence. In a merit decision dated January 30, 2012, OWCP denied that appellant sustained a recurrence of disability on November 1, 1999.

As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on June 11, 1999. It is well established that a claimant may establish that a modification of a wage- earning capacity is warranted if there is a material change in the nature and extent of an injury- related condition, or a showing that the original determination was, in fact, erroneous.4 Appellant’s submission of a claim for total disability compensation beginning November 1, 1999 should thus be regarded as a request for modification of the wage-earning capacity determination. The Board has held that, when a wage-earning capacity determination has been issued and appellant submits evidence with respect to disability for work, OWCP must evaluate the evidence to determine if modification of wage-earning capacity is warranted.5 OWCP issued decisions on May 5, 2005 and June 14, 2011 denying modification of the June 11, 1999 wage- earning capacity determination. However, while its January 30, 2012 decision acknowledged that a formal wage-earning capacity determination was in place, OWCP adjudicated the claim for total disability beginning November 1, 1999 as a recurrence claim.

OWCP procedures cover the situation when a claimant has completely stopped working.6 The principle is equally applicable to a claim of increased disability which would prevent a claimant from performing the position that was the basis of the wage-earning capacity 3 In an October 30, 2007 decision, OWCP found that appellant was at fault in creating an $11,477.54 overpayment of compensation because she was paid compensation at the augmented rate for the period February 28, 1999 through June 9, 2007 when she had no dependents. In a September 21, 2009 decision, Docket No. 08-1642, the Board found that she received the $11,477.54 overpayment but that she was without fault in creating the overpayment. The case was remanded for OWCP to consider appellant’s eligibility for waiver. On April 1, 2010 OWCP denied waiver of the overpayment and set a repayment schedule at $100.00 each compensation period. 4 P.C., 58 ECAB 405 (2007).
5
Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a) (December 1995).

2 determination.7 The June 11, 1999 wage-earning capacity decision was based on appellant’s capacity to earn wages in a part-time modified clerk position. With the December 8, 2010 reconsideration request, appellant asserted that the June 11, 1999 decision was in error because it was a makeshift position and also submitted medical evidence regarding the argument that the accepted conditions had worsened such that she became totally disabled on November 1, 1999.

The Board finds that OWCP should have adjudicated appellant’s claim for total disability compensation as whether she had established that the wage-earning capacity determination should be modified.8 The Board will therefore remand the case to OWCP for proper adjudication, to be followed by an appropriate merit decision to preserve appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the January 30, 2012 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: November 26, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

7
D.G., Docket No. 10-1666 (issued May 12, 2011).
8
F.B., Docket No. 09-99 (issued July 21, 2010).

3