K.M. and U.S. Postal Service, Post Office, Flint, MI (Board decision, June 18, 2014)

ECAB remand decision. The Board set aside OWCP’s denial of K.M.’s request to modify a wage-earning capacity determination and returned the case for evidence development. Whether modification is warranted 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

K.M., a postal employee with accepted elbow conditions, sought to modify a wage-earning capacity finding after his modified job was withdrawn. On an earlier appeal, the Board had directed OWCP to document the actual job underlying its 1994 capacity determination. The Board found that OWCP again denied modification without obtaining the needed position evidence or making adequate findings. It set aside the denial and directed OWCP to develop the original job record and decide again.

Decision snapshot

• Authority: Wage-earning capacity modification and FECA Bulletin No. 09-05.
• Outcome: September 9, 2013 denial set aside; case remanded.
• Key point: OWCP had to establish that the original capacity rating rested on an actual bona fide position.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.M., Appellant
)
)
and ) Docket No. 14-206
) Issued: June 18, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Flint, MI, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 5, 2013 appellant, through his attorney, filed a timely appeal from a September 9, 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 that a modification of a December 15, 1994 wage-earning capacity determination was warranted.

FACTUAL HISTORY

The case was before the Board on prior appeals. In a decision dated August 30, 2012, the Board found the case was not in posture for decision with respect to modification of a

1
5 U.S.C. § 8101 et seq.
December 15, 1994 wage-earning capacity determination.2 OWCP had accepted right elbow traumatic synovitis and post-traumatic osteoarthritis, and appellant’s modified position had been withdrawn on February 9, 2010 pursuant to the National Reassessment Process (NRP). The Board noted that FECA Bulletin No. 09-05 outlines specific procedures to follow when a light- duty job is withdrawn due to NRP and a wage-earning capacity determination is in effect, but OWCP had not acknowledged or followed the provisions of FECA Bulletin No. 09-05. The history of the case as provided by the Board in the prior appeal is incorporated herein by reference.

In a letter dated November 14, 2012, OWCP requested that the employing establishment submit a formal position description and any other documentation as to the position appellant “has been working.” The letter also requested the employing establishment to indicate whether appellant had been performing the same duties as the position for which he received a loss of wage-earning capacity (LWEC) decision. OWCP also issued a November 14, 2012 letter to appellant, advising him to submit evidence with respect to a modification of the wage-earning capacity determination.

In a report dated January 14, 2013, Dr. Kazem Hak, a Board-certified internist, stated that appellant had a history of multiple injuries and medical conditions. He opined that appellant could not perform duties as a letter carrier.

By decision dated February 15, 2013, OWCP denied modification of the December 15, 1994 wage-earning capacity determination. It found that the evidence did not establish that a modification was warranted.

Appellant requested a hearing before an OWCP hearing representative, which was held on June 10, 2013. By decision dated September 9, 2013, the hearing representative affirmed the February 15, 2013 decision. The hearing representative found that appellant had failed to submit evidence supporting a modification.

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

ANALYSIS

In the prior appeal, the Board remanded the case to OWCP to follow the provisions of FECA Bulletin No. 09-05. This bulletin indicates that the file must contain documentary 2 Docket No. 11-298 (issued August 30, 2012).
3
Sue A. Sedgwick, 45 ECAB 211 (1993).
4
Id.

2 evidence that the LWEC rating was “based on an actual bona fide position.”5 OWCP attempted to develop the claim by sending the employing establishment a November 14, 2012 letter. There is no response in the record. OWCP’s decision does not make adequate findings on the issue or cite to relevant evidence.

The record must contain relevant evidence as to the specific job appellant was performing at the time of the December 15, 1994 wage-earning capacity determination. The evidence may include a job offer, an SF-50, a formal position description or other relevant documentary evidence.6 Such evidence must relate to the job that was the basis for the wage-earning capacity determination, not a job subsequently performed by appellant. Based on a proper factual background, OWCP should then make a determination, in accord with Board case law and relevant authority, as to whether the wage-earning capacity determination was based proper.7 Once the issue of whether the initial wage-earning capacity determination was proper and based on an actual bona fide position, OWCP may address the medical evidence with respect to the modification issue.

In the absence of such documentation, the case will be remanded to OWCP for further development of the evidence. After such further development as OWCP deems necessary, it should issue an appropriate decision.

CONCLUSION

The Board finds that the case must be remanded to OWCP for further development of the modification of the December 15, 1994 wage-earning capacity determination in accord with FECA Bulletin No. 09-05.

5
FECA Bulletin No. 09-05 (issued August 18, 2009).
6
Id.
7
See A.J., Docket No. 10-619 (issued June 29, 2010); 20 C.F.R. § 10.510.

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated September 9, 2013 is set aside and the case remanded to OWCP for further action consistent with this decision of the Board.

Issued: June 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4