A.S. and U.S. Postal Service, Greater South Carolina Performance Cluster, Columbia, SC (Board decision, November 26, 2012)

ECAB remand decision. The Board set aside OWCP's May 7, 2012 refusal to review A.S.'s wage claim and remanded for a merits decision on modification. Her compensation request remains open. 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

A.S., a postal employee, sought wage-loss compensation after limited-duty hours were withdrawn. OWCP treated her submission as a reconsideration request and denied merits review. The Board found that OWCP needed to adjudicate modification of the wage-earning capacity determination and consider its withdrawn-position procedures. It remanded.

Decision snapshot

• Authority: FECA wage capacity after withdrawn limited duty.
• Outcome: May 7, 2012 refusal set aside and remanded.
• Key point: OWCP had to decide modification under the proper procedures.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.S., Appellant
)
)
and ) Docket No. 12-1327
) Issued: November 26, 2012
U.S. POSTAL SERVICE, GREATER SOUTH
)
CAROLINA PERFORMACE CLUSTER,
)
Columbia, SC, 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 June 4, 2012 appellant filed a timely appeal from a May 7, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for reconsideration. The Board docketed the appeal as No. 12-1327.1

In an October 14, 2011 decision, OWCP affirmed its November 30, 2010 decision finding that appellant did not meet his burden of proof to modify its March 7, 2006 wage-earning capacity determination.

The Board has reviewed the case record and notes that on April 18, 2012 appellant requested reconsideration of OWCP’s October 14, 2011 decision. She submitted a

1
OWCP accepted that on May 19, 1999 appellant, a rural carrier associate, sustained several right knee injuries including a meniscus tear, traumatic arthopathy and aggravation of denerative osteoarthrosis. It later accepted left knee osteoarthritis as a consequence of the May 19, 1999 injury. In a March 7, 2006 decision, OWCP reduced appellant’s compensation to zero based on its finding that her actual wages as a modified sales service and distribution associate fairly and reasonably represented her wage-earning capacity. In early October 2010, appellant was advised that due to the National Reassessment Process (NRP) specific hours of her limited-duty job were being withdrawn. She claimed that OWCP’s March 7, 2006 wage-earning capacity decision should be modified and submitted evidence in support of her claim. November 11, 2011 report in which Dr. Barry Oliver, an attending Board-certified orthopedic surgeon, described work restrictions, including no engaging in lifting for more than two hours per day, no continuous lifting of more than 5 pounds and no intermittent lifting of more than 15 pounds.2 By decision dated May 7, 2012, OWCP denied appellant’s request for merit review on the grounds that the submitted evidence was irrelevant and cumulative of previously submitted evidence.

As noted above, OWCP had issued a formal decision on appellant’s wage-earning capacity on May 7, 2006, prior to the time he requested reconsideration on April 18, 2012. Board precedent and OWCP’s procedures direct the claims examiner to consider the criteria for modification when a claimant requests compensation for wage loss in this circumstance.3 Appellant submitted medical evidence in connection with his request for reconsideration of OWCP’s October 14, 2011 decision which affirmed the denial of his request to modify OWCP’s March 7, 2006 wage-earning capacity determination.4 The Board finds that OWCP should have adjudicated the issue of modification of the wage-earning capacity determination.5 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.6

2
Appellant also submitted a number of records concerning claims for lost wages on various dates.
3
Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a) (December 1995) (if a formal decision on loss of wage-earning capacity is issued, the rating should be left in lace unless the claimant requests resumption of compensation for total wage loss, in which instance OWCP will need to evaluate the request according to the customary criteria for modifying a formal loss of wage-earning capacity determination). 4 Once the wage-earning capacity of an injured employee 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. Stanley B. Plotkin, 51 ECAB 700 (2000); see Federal (FECA) Procedure Manual, id. at Chapter 2.814.11 (October 2009). 5 F.B., Docket No. 09-99 (issued July 21, 2010).
6
In adjudicating the issue of modification of the wage-earning capacity determination, OWCP should consider FECA Bulletin No. 09-05 (issued August 18, 2009) which outlines OWCP procedures when limited-duty positions are withdrawn pursuant to NRP.

2
IT IS HEREBY ORDERED THAT the May 7, 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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3