C.S. and U.S. Postal Service, Post Office, Carol Stream, IL (Board decision, December 4, 2012)

ECAB remand decision. The Board set aside OWCP's March 8, 2012 refusal to reopen C.S.'s wage-earning capacity claim and remanded for a merits review. Whether the earlier wage determination should change 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

C.S., a postal clerk, asked OWCP to modify an earlier wage-earning capacity finding. OWCP treated her submission as a late reconsideration request subject to a clear error standard. The Board found that she sought modification of the wage finding, which called for review on the merits. It set aside OWCP's refusal and remanded.

Decision snapshot

• Authority: FECA modification of wage-earning capacity.
• Outcome: March 8, 2012 refusal set aside and remanded.
• Key point: OWCP applied the wrong review standard.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.S., Appellant
)
)
and ) Docket No. 12-1834
) Issued: December 4, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Carol Stream, IL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On September 5, 2012 appellant, through her attorney, filed a timely appeal of a March 8, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for merit review of her claim. As more than 180 days has elapsed from the last merit decision of January 12, 2011 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly refused to reopen appellant’s case for further review of the merits on the grounds that her request was untimely and failed to demonstrate clear evidence of error.

On appeal, counsel argues that OWCP failed to properly consider whether the loss of wage-earning capacity (LWEC) determination should be modified.

1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

On April 19, 2007 appellant, a 43-year-old mail processing clerk, filed a traumatic injury claim alleging that on April 16, 2007 she sustained injuries to her left shoulder and neck while moving a tray full of mail. OWCP accepted her claim for left rotator cuff rupture and left shoulder strain.2 Appellant returned to work on July 18, 2009 as a modified mail processor. By decision dated September 23, 2009, OWCP terminated her compensation benefits on the grounds that her modified position fairly and reasonably represented her wage-earning capacity and her actual earnings met or exceeded the current wages of the job held when she was injured.

On July 10, 2010 appellant submitted a Form CA-2a claiming a recurrence of disability, due to the withdrawal of her modified position. By decision dated October 6, 2010, OWCP denied modification of the September 23, 2009 LWEC decision. In a decision dated January 12, 2011, an OWCP hearing representative affirmed the October 6, 2010 decision.

In a letter dated January 10, 2012, appellant, through her representative, requested reconsideration of the January 12, 2011 decision, arguing that the original LWEC decision was erroneous because the modified position on which it was based was tailored to conform to her unique physical restrictions. Therefore, it did not constitute a bona fide job for the purposes of determining wage-earning capacity.

By decision dated March 8, 2012, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

LEGAL PRECEDENT

A wage-earning capacity decision is a determination that a specific amount of earnings, either actual earnings or earnings from a selected position, represents a claimant’s ability to earn wages.3 Compensation for loss of wage-earning capacity is based upon loss of the capacity to earn and not on actual wages lost.4 Compensation payments are based on the wage-earning capacity determination, which remains undisturbed until properly modified.5

Modification of a standing wage-earning capacity 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

2
OWCP accepted appellant’s December 11, 2008 occupational disease claim for left carpal tunnel syndrome (CTS). (File No. xxxxxx263) Appellant’s May 27, 2010 occupational disease claim was accepted for right CTS. (File No. xxxxxx049). The cases were combined with the instant case, with File No. xxxxxx285 serving as the master file. 3 5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971) (the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity). 4 K.R., id.; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975).
5
See Sharon C. Clement, 55 ECAB 552, 557 (2004).

2 erroneous.6 The burden of proof is on the party attempting to show a modification of the wage- earning capacity determination.7 There is no time limit for appellant to submit a request for modification of a wage-earning capacity determination.8

ANALYSIS

OWCP considered appellant’s counsel’s January 10, 2012 correspondence as a request for reconsideration of the January 12, 2011 decision denying modification of the September 23, 2009 wage-earning capacity determination under 5 U.S.C. § 8128(a). It found that the request was untimely and failed to establish clear evidence of error. The Board finds that this case is not in posture for a decision, as OWCP applied an improper standard of review.

In his January 10, 2012 correspondence, counsel used the term reconsideration. He, however, asserts that the original LWEC decision was erroneous because the modified position on which it was based was tailored to conform to appellant’s unique physical restrictions and did not constitute a bona fide job for the purposes of determining wage-earning capacity. Counsel’s January 10, 2012 letter constitutes a request for modification of OWCP’s September 23, 2009 wage-earning capacity determination. Appellant’s request for modification of the wage-earning determination is not a request for a review of the January 12, 2011 decision under 5 U.S.C.
§ 8128(a).9 Therefore, OWCP improperly characterized the January 10, 2012 letter as a request for reconsideration subject to the one-year time limitation set forth at 20 C.F.R. § 10.607(a).

Appellant has requested modification of the September 23, 2009 wage-earning capacity determination based on her argument that it was in error. On remand, OWCP shall adjudicate her request for modification of the wage-earning capacity determination and issue an appropriate decision, taking into consideration the provisions of FECA Bulletin No. 09-05.10

CONCLUSION

The Board finds that appellant requested modification of the September 23, 2009 wage- earning capacity determination and is entitled to a merit review of the wage-earning capacity issue. The case will be remanded to OWCP for all necessary development and issuance of an appropriate decision. 6 Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).
7
Selden H. Swartz, 55 ECAB 272, 278 (2004).
8
See D.O., Docket No. 11-1607 (issued April 23, 2012); Daryl Peoples, Docket No. 05-462 (issued July 19, 2005); Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004); Gary L. Moreland, 54 ECAB 638 (2003). 9 Id. In D.O., Peoples, Taylor and Morehead the Board determined that the claimants’ requests for reconsideration of a wage-earning capacity determination constituted a request for modification requiring a merit review. In all cases, the Board set aside OWCP’s decisions denying appellants reconsideration requests as untimely and remanded the cases for OWCP to address the merits of their requests for modification of an LWEC decision). 10 FECA Bulletin No. 09-05 (issued August 18, 2009) outlines OWCP’s procedures when limited-duty positions are withdrawn pursuant to National Reassessment Program. If, as in the present case, a formal LWEC decision has been issued, OWCP must develop the evidence to determine whether a modification of that decision is appropriate. FECA Bulletin No. 09-05 (issued August 18, 2009).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated March 8, 2012 is set aside and the case remanded for further consideration consistent with this decision of the Board.

Issued: December 4, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

4