G.G. and U.S. Postal Service, Post Office, Richmond, CA (Board decision, July 9, 2013)

ECAB remand decision. The Board set aside OWCP’s calculation of partial disability compensation and returned the case for a new calculation. The amount payable remains 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

G.G., a Postal Service clerk, received partial disability compensation after a work-related shoulder condition limited her earnings. OWCP calculated her payment using a pay rate from May 2009, when she stopped working again. The Board agreed with OWCP’s 41 percent wage-earning capacity ratio but found that the later pay rate was inapplicable because G.G. had returned only to modified duty after her first shoulder surgery. It held that OWCP should use her pay when disability first began in March 2004. The Board set aside the calculation and sent the case back to determine the proper payment amount.

Decision snapshot

• Authority: FECA monthly pay and partial disability rules, 5 U.S.C. §§ 8101(4) and 8106(a), and wage-earning capacity calculation, 20 C.F.R. § 10.403.
• Outcome: December 5, 2012 payment calculation set aside and remanded.
• Key point: The later recurrence pay rate could not be used without a return to regular full-time federal work after the initial disability.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.G., Appellant
)
)
and ) Docket No. 13-770
) Issued: July 9, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Richmond, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Hank Royal, for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On February 15, 2013 appellant, through her representative, filed a timely appeal from the December 5, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP), which calculated her loss of wage-earning capacity. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review that decision.2

ISSUE

The issue is whether OWCP properly determined appellant’s pay rate.

1
5 U.S.C. § 8101 et seq.
2
The Board has no jurisdiction to review OWCP’s hearing representative’s August 9, 2012 decision to affirm the reduction of appellant’s wage-loss compensation based on her capacity to earn wages in the selected position of administrative secretary. More than 180 days has elapsed from the issuance of OWCP’s August 9, 2012 decision to the filing of this appeal. The only decision the Board may review is OWCP’s December 5, 2012 calculation of appellant’s loss of wage-earning capacity. Accordingly, the only issue the Board may consider is whether the calculation is correct and supported by the evidence.
FACTUAL HISTORY

On March 21, 2003 appellant, then a 40-year-old clerk, filed an occupational disease claim alleging pain in her neck and right upper extremity after keying and reaching for parcels. She did not stop work but was reassigned. OWCP accepted appellant’s claim for right shoulder impingement syndrome.

Appellant underwent arthroscopic right shoulder surgery on March 16, 2004. She stopped work again on May 18, 2009 before undergoing revision surgery on July 13, 2009. OWCP accepted a right shoulder ganglion cyst. Appellant received compensation for temporary total disability on the periodic rolls based on her May 18, 2009 pay rate.

Effective January 15, 2012, OWCP reduced appellant’s wage-loss compensation based on her capacity to earn wages in the selected position of administrative secretary.

On August 9, 2012 OWCP’s hearing representative found that the selected position fairly and accurately reflected appellant’s wage-earning capacity and that OWCP met its burden in reducing her wage-loss compensation. The hearing representative also found, however, that OWCP did not properly calculate the loss of wage-earning capacity. OWCP had used the pay rate when disability began on May 18, 2009, but disability first began when appellant stopped work for her right shoulder surgery on March 16, 2004. Appellant returned to modified duty following the surgery and continued in this modified capacity until she stopped work again on May 18, 2009. Further, as the evidence supported that she continued working full-time regular duty after her injury until she stopped work for surgery on March 16, 2004, the hearing representative found that the date of injury was the date of her last exposure to the work factors that caused her condition on March 15, 2004.

OWCP’s hearing representative affirmed its reduction of wage-loss compensation based on the selected position of administrative secretary but ordered OWCP to determine appellant’s pay rate as of March 15 and 16, 2004 and to determine whether she was entitled to a date of recurrence pay rate any time thereafter. The hearing representative affirmed OWCP’s decision in part and remanded the case for a proper recalculation of the loss of wage-earning capacity according to OWCP regulations and procedures.

After receiving pay rate information from the employing establishment, OWCP recalculated appellant’s loss of wage-earning capacity on December 5, 2012. It compared the current weekly pay rate for the position she held on the date of injury ($1,183.25)3 with the weekly wages she was capable of earning in the selected position ($480.00). OWCP then applied this wage-earning capacity (41 percent) to appellant’s weekly pay rate when disability recurred effective May 18, 2009 ($1,212.14). It subtracted that amount from the recurrent pay rate to find the loss of wage-earning capacity. OWCP applied the compensation rate of two- thirds, increased this amount by applicable cost-of-living adjustments and subtracted premiums for health benefits, basic life insurance and optional life insurance. It notified appellant of the revision as instructed by OWCP’s hearing representative.

3
This figure represents the base weekly pay rate increased by Night Differential and Sunday Premium Pay.

2
On appeal, counsel cites two cases: Marvin Elder, Docket No. 03-1421 (issued January 26, 2005) and Terry L. Hewitt, Docket No. 96-2563 (issued November 16, 1998).

LEGAL PRECEDENT

FECA provides compensation for the disability of an employee resulting from personal injury sustained while in the performance of duty.4 “Disability” means the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury. It may be partial or total.5

If the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 2/3 percent of the difference between monthly pay and monthly wage-earning capacity after the beginning of the partial disability.6

The method for determining loss of wage-earning capacity was set out by the Board in the case of Albert C. Shadrick.7 The Board established a principle to eliminate economic factors such as inflation or recession when computing the amount of monetary compensation due for partial disability. According to this rule, the injured worker is paid compensation based on the ratio of post-injury wage-earning capacity to the current pay rate of the date-of-injury job. After such percentage is determined, compensation for partial disability is computed on the basis of monthly pay.8

“Monthly pay” means the monthly pay at the time of injury or the monthly pay at the time disability began or the monthly pay at the time compensable disability recurred if the recurrence began more than six months after the injured employee resumed regular full-time employment with the United States, whichever is greater.9

ANALYSIS

Under the Shadrick formula the ratio of the post-injury wages appellant is capable of earning in the selected position is compared to the current pay rate for the position she held on the date of injury. This step is the same in every case, regardless of when disability began or recurred.

OWCP’s hearing representative found that the date of injury was the date of appellant’s last exposure to the work factors that caused her condition. As she continued to work full-time

4
5 U.S.C. § 8102(a).
5
20 C.F.R. § 10.5(f).
6
5 U.S.C. § 8106(a).
7
5 ECAB 376 (1953).
8
Johnny A. Muro, 17 ECAB 537 (1966); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.15.c (October 2009) (Shadrick formula codified at 20 C.F.R. § 10.403). 9 5 U.S.C. § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

3 regular duty after her injury until she stopped work for surgery on March 16, 2004, the hearing representative determined that her date of injury was March 15, 2004. The employing establishment advised that the current pay rate for the position appellant held on March 15, 2004 was $1,183.25.

OWCP’s hearing representative affirmed that appellant had the capacity to earn $480.00 a week in the selected position of administrative secretary. The ratio of the postinjury wages appellant is capable of earning in this position ($480.00) to the current pay rate for the position she held on March 15, 2004 ($1,183.25) is 41 percent, which OWCP correctly determined.

The second step is to apply this percentage to the pay at the time of injury or the pay at the time disability began or the pay at the time compensable disability recurred if the recurrence began more than six months after the injured employee resumed regular full-time employment with the United States, whichever is greater. OWCP applied 41 percent to appellant’s pay when her disability recurred on May 18, 2009. There is no evidence that she ever resumed regular full- time employment with the United States following her May 16, 2004 right shoulder surgery. As OWCP’s hearing representative indicated, appellant returned to modified duty following the May 16, 2004 surgery and continued in this modified capacity until she stopped work again on May 18, 2009. The Board therefore finds that OWCP erroneously applied the percentage of wage-earning capacity to appellant’s pay at the time compensable disability recurred on May 18, 2009.

OWCP should have applied this figure to the pay rate when disability began on March 16, 2004. Accordingly, the Board will set aside OWCP’s December 5, 2012 decision and remand the case for a proper calculation of appellant’s compensation for partial disability.

On appeal, counsel cites two cases addressing the issue of preexisting conditions. That issue was addressed by OWCP’s hearing representative in his August 9, 2012 decision which is not before the Board on this appeal.

Appellant may request modification of the wage-earning capacity determination, supported by new evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that OWCP improperly calculated appellant’s loss of wage-earning capacity. Further development is warranted.

4
ORDER

IT IS HEREBY ORDERED THAT the December 5, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action.

Issued: July 9, 2013
Washington, DC

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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

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