J.S. and Department of Homeland Security, Transportation Security Administration, Philadelphia, PA (Board decision, May 12, 2015)

ECAB remand decision. The Board set aside OWCP’s January 6, 2015 refusal to reopen the claim and directed it to decide the request for an increased schedule award. Whether J.S. qualifies for additional compensation remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.S., a Transportation Security Administration employee, sought a higher schedule award for permanent impairment of his right arm. OWCP treated his filing as an untimely request to reconsider its December 27, 2013 denial of an additional schedule award and denied it for lack of clear evidence of error. The Board found that he had presented a claim for increased impairment, supported by a physician’s estimate of 26 percent impairment rather than the previously awarded 12 percent. It set aside OWCP’s denial and directed it to develop the evidence and decide the increased award claim.

Decision snapshot

• Authority: The Board’s distinction between reconsidering an existing award and claiming increased permanent impairment.
• Outcome: January 6, 2015 denial set aside; increased award claim remanded.
• Key point: A claim based on progressed impairment calls for an increased award decision, rather than a late reconsideration review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 15-655
) Issued: May 12, 2015
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Philadelphia, PA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Jason S. Lomax, Esq., 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 January 30, 2015 appellant filed a timely appeal from a January 6, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration as untimely and insufficient to establish clear evidence of error. The appeal was docketed as No. 15-655.

By decision dated March 9, 2011, OWCP granted appellant a schedule award for a 12 percent permanent impairment of the right upper extremity pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides). In a merit decision dated December 27, 2013, it denied his claim for an additional schedule award.

In a letter dated December 26, 2014, received by OWCP on December 29, 2014, appellant requested reconsideration of the December 27, 2013 decision. In a report dated February 22, 2013, received by OWCP on December 29, 2014, Dr. Arthur Becan, a Board- certified orthopedic surgeon, provided examination findings and thereafter calculated that appellant had a 26 percent right upper extremity impairment pursuant to the A.M.A., Guides.

By decision dated January 6, 2015, OWCP denied his request for reconsideration as untimely filed and as it did not demonstrate clear evidence of error. In schedule award cases, a distinction is made between an application for an additional schedule award and a request for reconsideration of the existing schedule award. When a claimant is asserting that the original award was erroneous based on his or her medical condition at that time, this is a request for reconsideration. A claim for an additional schedule award may be based on new exposure to employment factors or on the progression of an employment- related condition, without new exposure, resulting in greater permanent impairment.1

On December 26, 2014 appellant requested an increased schedule award and submitted Dr. Becan’s report indicating that he had a 26 percent right upper extremity impairment. The Board has repeatedly held that a claimant may request a schedule award or increased schedule award based on evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting in permanent impairment or increased impairment.2 The Board finds, therefore, that OWCP erroneously issued a denial of appellant’s request for reconsideration under the clear evidence of error standard. On remand, OWCP should review and develop the factual and medical evidence and issue an appropriate decision regarding his request for an increased schedule award.

IT IS HEREBY ORDERED THAT the January 6, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: May 12, 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

1
See B.K., 59 ECAB 228 (2007); Candace A. Karkoff, 56 ECAB 622 (2005).
2
See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).

2