K.S. and Department of the Navy (Board decision, October 25, 2012)

ECAB remand decision. The Board set aside OWCP's December 28, 2011 ruling and remanded K.S.'s wage capacity request. The remanded issues remain 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.S., a Navy employee, asked OWCP to modify a wage-earning capacity determination. OWCP treated the request partly as reconsideration and did not clearly explain its findings on modification. The Board set aside the decision and required a proper merits ruling with clear reasons.

Decision snapshot

• Authority: Wage-earning capacity modification.
• Outcome: Decision set aside and remanded.
• Key point: OWCP must decide and explain the modification request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.S., Appellant
)
)
and ) Docket No. 12-883
) Issued: October 25, 2012
DEPARTMENT OF THE NAVY, CMDR,
)
NAVAL INTL-INACTIVE FACILITY,
)
San Diego, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

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

On March 13, 2012 appellant filed a timely appeal of a December 28, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which denied his request for reconsideration. The appeal was docketed as No. 12-883.

OWCP’s December 28, 2011 decision determined that the evidence submitted in support of appellant’s request for reconsideration of OWCP’s May 16, 2011 decision was insufficient to warrant a merit review. It noted that in the May 16, 2011 decision, an OWCP hearing representative affirmed a November 4, 2010 loss of wage-earning capacity decision. The December 28, 2011 decision noted the requirements for modifying a wage-earning capacity determination but concluded that the evidence and arguments submitted in support of the request for reconsideration were cumulative, a standard typically used in considering whether to grant a merit review from a timely reconsideration request.1 As the underlying issue is modification of a wage-earning capacity determination, appellant’s request should not be treated as a

1
See e.g., James W. Scott, 55 ECAB 606 (2004). reconsideration request but should be adjudicated as a request for modification of a wage-earning capacity determination.2

Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact and make an award for or against payment of compensation.3 Its regulations at section 10.126 of Title 20 of the Code of Federal Regulations provide: The decision of the Director of OWCP shall contain findings of fact and a statement of reasons.4 Moreover, OWCP’s procedure manual provides: The reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it.5

The Board, having duly considered the matter, finds that OWCP’s December 28, 2011 decision fails to properly explain the findings with respect to the issue presented. The decision states that a merit review was not conducted yet also sets forth the standard for determining whether a wage-earning capacity determination should be modified. OWCP appears to have both analyzed appellant’s request as a timely request for reconsideration, under 5 U.S.C.
§ 8128(a), for which merit review was not granted and also analyzed the merits of whether the wage-earning capacity determination should be modified. As noted, since the underlying issue is modification of a wage-earning capacity determination, appellant’s request should not be treated as a reconsideration request but should be adjudicated as a request for modification of a wage- earning capacity determination. Thus, OWCP, in its December 28, 2011 decision, did not discharge its responsibility to set forth findings of fact and a clear statement of reasons explaining the disposition so that appellant could understand the basis for the decision, i.e., whether he met his burden of proof to show modification of the loss of wage-earning capacity determination.

The case must be returned to OWCP for a proper decision which includes findings of fact and a clear and precise statement regarding appellant’s request for modification of a wage- earning capacity determination. Following this and such further development as OWCP deems necessary, it shall issue an appropriate merit decision.

2
See F.B., Docket No.10-99 (issued June 21, 2010); M.J., Docket No. 08-2280 (issued July 7, 2009).
3
5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).
4
20 C.F.R. § 10.126. See also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket No. 09-956 (issued April 15, 2010).
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

2
IT IS HEREBY ORDERED THAT the December 28, 2011 decision be set aside and the matter remanded to the Office of Workers’ Compensation Programs for further proceedings consistent with this order of the Board.

Issued: October 25, 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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