M.D. and Department of Commerce, National Oceanic and Atmospheric Administration (Board decision, December 21, 2012)

ECAB remand decision. The Board set aside OWCP's March 26, 2012 denial of M.D.'s claimed recurrence and remanded to apply the standard for modifying an established wage-earning capacity determination. Entitlement to additional compensation remains open. 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.D., a Commerce employee, sought total disability benefits after OWCP had formally rated his wage-earning capacity based on actual earnings as a marine engineman. OWCP denied the request under the ordinary recurrence standard. The Board found that a formal wage capacity ruling was already in place, so a request for renewed full wage-loss compensation required consideration as a modification request. It set aside the denial and remanded for the correct review.

Decision snapshot

• Authority: FECA modification of wage-earning capacity.
• Outcome: March 26, 2012 recurrence denial set aside and remanded.
• Key point: An established wage capacity rating changes the standard for renewed total disability benefits.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.D., Appellant
)
)
and ) Docket No. 12-1317
) Issued: December 21, 2012
DEPARTMENT OF COMMERCE, NATIONAL
)
OCEANIC & ATMOSPHERIC
)
ADMINISTRATION, Woods Hole, MA,
)
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
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On April 23, 2012 appellant filed a timely appeal of a March 26, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim that he sustained a recurrence of disability beginning October 30, 2008 causally related to his accepted lumbar disc herniation. OWCP cited an employee’s burden of proof to demonstrate causal relationship between the alleged recurrence and the accepted employment injury1 and concluded that the medical evidence did not establish this link.

Having duly reviewed the matter, the Board finds that the case is not in posture for decision. On January 4, 2005 OWCP found that appellant’s actual earnings as a marine engineman fairly and reasonably represented his wage-earning capacity. It thereafter reduced his compensation for total wage loss and continued to pay compensation for partial disability. Once OWCP 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

1
Charles H. Tomaszewski, 39 ECAB, 461, 467 (1988). period of disability, in which instance OWCP will need to evaluate the request according to the customary criteria for modifying a formal wage-earning capacity determination.2

The Board will therefore set aside the March 26, 2012 decision denying recurrence of disability and remand the case for OWCP to apply the proper standard of review and adjudicate appellant’s claim as a request for modification of an established determination of wage-earning capacity.

IT IS HEREBY ORDERED THAT the March 26, 2012 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded to OWCP for further action consistent with this order of the Board.

Issued: December 21, 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

2
Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

2