J.K. and U.S. Postal Service, Bulk Mail Center, Cincinnati, OH (Board decision, June 12, 2014)

ECAB remand decision. The Board set aside OWCP’s June 28, 2013 refusal to modify J.K.’s wage-earning capacity determination. OWCP must develop evidence about the modified mail handler job used for that determination and decide whether the job was suitable for the rating; the compensation issue remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the issue appealed 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.K., a postal mail handler, sought to change a wage-earning capacity determination after his modified job was withdrawn. In an earlier appeal, the Board had directed OWCP to find out whether the job used for that determination was a genuine position. OWCP sought information from the Postal Service, but its response did not answer that question, and OWCP did not make findings about the job J.K. had performed in 2004. The Board set aside the refusal to modify the determination and returned the case for evidence and a new decision. It did not decide whether J.K. was entitled to more compensation.

Decision snapshot

• Authority: Wage-earning capacity and modified work, 20 C.F.R. § 10.510.
• Outcome: OWCP’s refusal to modify the wage capacity determination set aside and remanded.
• Key point: OWCP needed evidence and findings about whether the earlier modified job was a genuine basis for the wage capacity rating.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.K., Appellant
)
)
and ) Docket No. 13-2115
) Issued: June 12, 2014
U.S. POSTAL SERVICE, BULK MAIL
)
CENTER, Cincinnati, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 16, 2013 appellant, through counsel, filed a timely appeal from a June 28, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant has established a modification of the December 27, 2004 wage-earning capacity determination.

FACTUAL HISTORY

The case was before the Board on a prior appeal.2 Appellant had returned to work on April 10, 2004 in a modified mail handler position. On December 27, 2004 OWCP reduced his

1
5 U.S.C. § 8101 et seq.
2
Docket No. 11-1136 (issued September 5, 2012). compensation to zero on the grounds that his actual earnings fairly and reasonably represented his wage-earning capacity. Appellant filed a claim for a recurrence of disability commencing February 17, 2010. The record indicated that the modified-duty position had been withdrawn pursuant to the National Reassessment Process (NRP). The Board remanded the case to OWCP on the grounds that they did not follow the procedures outlined in FECA Bulletin No. 09-053 with respect to claims for compensation when a light job was withdrawn and a wage-earning capacity determination was in effect. The history of the case as provided in the Board’s prior decision is incorporated herein by reference.

On remand, OWCP sent an October 12, 2012 letter to the employing establishment requesting a response as to whether the position on which the wage-earning capacity determination was based was a bona fide position at the time of the rating. On October 18, 2012 it received a copy of a December 8, 2003 job offer that was previously of record, as well as a November 14, 2005 job offer. On November 14, 2012 the employing establishment submitted a copy of a “current modified assignment/position worksheet” dated January 13, 2009. It also submitted a copy of a mail handler job description, an SF-50 notification of personnel action effective February 6, 2012 and a CA-17 form from an orthopedic surgeon dated February 23, 2012.

By decision dated January 3, 2013, OWCP denied modification of the wage-earning capacity determination. It found the evidence was insufficient to warrant modification.

Appellant requested a hearing before an OWCP hearing representative, which was held on April 15, 2013. By decision dated June 28, 2013, the hearing representative denied modification of the wage-earning capacity determination. The hearing representative found that appellant had not met his burden of proof.

LEGAL PRECEDENT

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.4 The burden of proof is on the party attempting to show a modification of the wage-earning capacity determination.5

ANALYSIS

In the prior appeal, the Board remanded the case to OWCP to follow the procedures outlined in FECA Bulletin No. 09-05 with respect to claims for compensation when a light job was withdrawn pursuant to NRP and a wage-earning capacity determination was in effect. The Board specifically noted that FECA Bulletin No. 09-05 required that the record should contain

3
Issued August 18, 2009.
4
Sue A. Sedgwick, 45 ECAB 211 (1993).
5
Id.

2 documentary evidence that the position performed was a bona fide position. In addition, the Board noted that FECA Bulletin No. 09-05 provided that further development of the evidence may require that the employing establishment “address in writing whether the position on which the loss of wage-earning capacity determination was based was a bona fide position at the time of the rating and to direct the employing establishment to review its files for contemporaneous evidence concerning the position.”

On remand, OWCP sent an October 12, 2012 letter to the employing establishment requesting a response as to whether the position on which the wage-earning capacity determination was based was a bona fide position at the time of the rating, but the response from the employing establishment did not address the issue presented. On October 18, 2012 it received a copy of a December 8, 2003 job offer that was previously of record, as well as a November 14, 2005 job offer. On November 14, 2012 the employing establishment submitted a copy of a “current modified assignment/position worksheet” dated January 13, 2009.

The employing establishment did not provide any new and relevant information with respect to the issue presented. Moreover, OWCP did not provide adequate findings on the issue. The January 3 and June 28, 2013 decisions did not discuss the limited-duty job performed in 2004, or the relevant factors that are considered in determining whether a job was “makeshift” or otherwise inappropriate for a wage-earning capacity determination under Board precedent and relevant authority.6

To properly follow the guidelines of FECA Bulletin No. 09-05, OWCP needs to secure relevant evidence from the employing establishment as to the job that was the basis for the wage- earning capacity determination -- the modified mail handler job appellant was performing from April 2004. Once it has the relevant information, it should make a proper finding as to whether the job was makeshift or otherwise inappropriate for a wage-earning capacity determination. The case will be remanded to OWCP for proper findings on the issue. After such further development as is deemed necessary, it should issue an appropriate decision.

CONCLUSION

The Board finds the case is not in posture for decision and is remanded to OWCP for proper development of the modification of the wage-earning capacity issue.

6
See A.J., Docket No. 10-619 (issued June 29, 2010). See also 20 C.F.R. § 10.510.

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 28, 2013 is set aside and the case remanded for further action consistent with this decision of the Board.7

Issued: June 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7
Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board after May 16, 2014.

4