D.S. and Department of Health and Human Services, National Institutes of Health, Bethesda, MD (Board decision, November 26, 2012)

ECAB remand decision. The Board set aside OWCP's May 14, 2012 refusal to reopen D.S.'s wage claim and remanded for a merits decision on modification. The wage-earning capacity question 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

D.S., a National Institutes of Health employee, challenged a wage-earning capacity finding based on a desk clerk position. OWCP treated his submission as a reconsideration request and denied review. The Board found that his arguments and medical evidence called for a decision on whether to modify the wage finding. It set aside the refusal and remanded.

Decision snapshot

• Authority: FECA wage-earning capacity modification.
• Outcome: May 14, 2012 decision set aside and remanded.
• Key point: OWCP had to decide the modification request on its merits.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.S., Appellant
)
)
and ) Docket No. 12-1350
) Issued: November 26, 2012
DEPARTMENT OF HEALTH & HUMAN
)
SERVICES, NATIONAL INSTITUTES OF
)
HEALTH, Bethesda, MD, 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 17, 2012 appellant filed a timely appeal from a May 14, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration without conducting a merit review. The Board docketed the appeal as No. 12-1350.

By decision dated June 2, 2011, OWCP reduced appellant’s compensation, effective June 5, 2011, based on his capacity to earn wages in the constructed position of desk clerk. On October 28, 2011 and February 10, 2012 appellant requested reconsideration and presented arguments that the June 2, 2011 wage-earning capacity decision was in error because additional medical conditions were not considered.1 He submitted medical evidence and copies of correspondence. This included reports dated June 15 and June 24, 2010 in which Drs. Brian Dearing and James Storey, Board-certified cardiologists, discussed appellant’s medical condition and diagnosed asymptomatic complete heart block, hypertension, history of asthma, history of stroke and abnormal lipids. In a June 17, 2011 report, Dr. Nazaneen Grant, a Board-certified otolaryngologist, noted a history of difficulty breathing and diagnosed vocal cord dysfunction. In treatment notes dated June 23, 2011 to January 13, 2012, Dr. Matthew Jaeger, Board-certified

1
Appellant had initially requested reconsideration on June 21, 2011 and submitted additional medical evidence.
On July 22, 2011 he withdrew the request.
in family medicine, provided examination findings and diagnosed increased lipids, asthma and hypertension. Thereafter, OWCP issued its May 14, 2012 decision denying appellant’s request for reconsideration without conducting a merit review of the claim.

The Board has duly reviewed the matter and finds that the case is not in posture for a decision. As noted, OWCP issued a formal decision on appellant’s wage-earning capacity on June 2, 2011. Board precedent and OWCP’s procedures direct the claims examiner to consider the criteria for modification when a claimant requests resumption of compensation for total wage loss.2 While appellant used the term reconsideration in his requests, he argued that the June 2, 2011 decision was in error and submitted additional medical evidence.3 The Board finds that OWCP should have adjudicated the issue of modification of the wage-earning capacity determination.4 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.

2
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). 3 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). 4 F.B., Docket No. 09-99 (issued July 21, 2010).

2
IT IS HEREBY ORDERED THAT the May 14, 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