N.J. and U.S. Postal Service, Post Office, Dallas, TX (Board decision, May 20, 2015)

ECAB final decision. The Board set aside OWCP’s December 2, 2014 reconsideration refusal and remanded the case for a new decision on wage-earning capacity modification. Entitlement to changed benefits remains unresolved. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

N.J., a postal worker, challenged an earlier decision reducing her compensation based on her ability to work in an administrative clerk position. OWCP treated her later request as an untimely application for reconsideration. The Board found that her arguments raised the distinct question of whether the earlier wage-earning capacity determination should be modified. It set aside OWCP’s refusal and directed OWCP to decide that question afresh. The Board did not decide whether N.J. qualifies for increased benefits.

Decision snapshot

• Authority: Modification of wage-earning capacity determinations, 20 C.F.R. § 10.511.
• Outcome: December 2, 2014 decision set aside; modification question remanded for a new decision.
• Key point: OWCP needed to address the substance of the modification request even though it was called reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.J., Appellant
)
)
and
)
) Docket No. 15-454
U.S. POSTAL SERVICE, POST OFFICE, ) Issued: May 20, 2015
Dallas, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On December 24, 2014 appellant, through her representative, filed a timely appeal from a December 2, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which found that her request for reconsideration was untimely and failed to show clear evidence of error. The Board docketed the appeal as No. 15-454.

By decision dated August 21, 2006, OWCP reduced appellant’s compensation based upon her ability to work as an administrative clerk, which was found to be medically and vocationally suitable. In a decision dated November 14, 2007, the Board affirmed the August 21, 2006 decision finding that OWCP met its burden of proof to reduce appellant’s compensation effective August 21, 2006.1 On September 4, 2014 appellant’s counsel requested reconsideration of the August 21, 2006 decision. He challenged the suitability of the constructed position and explained why he felt that OWCP’s decision was erroneous. Appellant also continued to submit medical evidence noting her status. In a December 2, 2014 decision, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to establish clear evidence of error.

1
Docket No. 07-45 (issued August 21, 2006).
 The Board has duly reviewed the matter and finds that the case is not in posture for decision. As noted, OWCP issued a formal decision on appellant’s wage-earning capacity on August 21, 2006. Board precedent and OWCP procedures direct the claims examiner to consider the criteria for modification of a loss of wage-earning capacity (LWEC) determination when a claimant requests resumption of compensation for total wage loss.2 While appellant’s counsel used the term reconsideration in his requests, he argued that the August 21, 2006 decision was in error.3 The Board finds that OWCP should have adjudicated the issue of modification of the LWEC determination.4 The Board will therefore remand the case to OWCP for proper adjudication, to be followed by a de novo decision to preserve appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the December 2, 2014 Office of Workers’ Compensation Programs’ decision be set aside and the case remanded to OWCP for further proceedings consistent with this order.

2
Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.4(a) (June 2013) (if a claim for wage loss is received, OWCP should review the file to determine whether a formal LWEC is in place, and, if so, the claim should be developed, if necessary, as a request for modification of the LWEC).

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 2.1501.3(a) (June 2013); 20 C.F.R. § 10.511.

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

2
Issued: May 20, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3