K.M. and Department of Health & Human Services, Indian Health Service, Blackfeet Community Hospital, Browning, MT (Board decision, July 19, 2016)

ECAB remand decision. The Board set aside OWCP’s December 14, 2015 decision and remanded for a merits decision on whether to modify K.M.’s wage-earning capacity determination; full-benefit entitlement 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

K.M. asked OWCP to restore full wage-loss benefits after a prior reduction based on presumed receptionist earnings. She submitted updated treatment records and reported increased disability. OWCP denied modification without applying the criteria for changing a wage-earning capacity decision. The Board ordered it to evaluate that question and issue a merits decision preserving her appeal rights.

Decision snapshot

• Authority: Katherine T. Kreger, 55 ECAB 633; Sharon C. Clement, 55 ECAB 552; FECA Procedure Manual, ch. 2.1501.
• Outcome: December 2015 decision set aside; modification issue remanded.
• Key point: A request for renewed full benefits required OWCP to address the established wage-capacity decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.M., Appellant
)
)
and
)
) Docket No. 16-0618
DEPARTMENT OF HEALTH & HUMAN ) Issued: July 19, 2016
SERVICES, INDIAN HEALTH SERVICE,
)
BLACKFEET COMMUNITY HOSPITAL,
)
Browning, MT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
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 February 15, 2016 appellant, through counsel, filed an application for review of a December 14, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 16-0618.2

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 On August 18, 2004 appellant, a clinical assistant, injured her low back while lifting a table. She stopped work that day. OWCP accepted lumbar strain and herniated disc. Appellant was placed on the periodic compensation rolls in April 2005. On August 2, 2006 Dr. Michael E. Luckett, a Board-certified orthopedic surgeon, performed a lumbar fusion. In March 2012 OWCP referred appellant to Dr. Boyd Max Iverson, a Board-certified orthopedic surgeon, for a second opinion evaluation. In reports dated April 11 and 29, 2012, Dr. Iverson opined that appellant could return to modified duty. Appellant had a thoracic epidural stimulator implanted on May 3, 2012. OWCP referred appellant for vocational rehabilitation in June 2012. The Board has duly reviewed the record and finds that the case is not in posture for decision. By decision dated May 13, 2014, OWCP reduced appellant’s compensation based on her capacity to earn wages in the constructed position of receptionist. By decision dated March 12, 2015, an OWCP hearing representative affirmed the May 13, 2014 decision.

On November 10, 2015 appellant, through counsel, requested reconsideration. In support appellant submitted a personal statement in which she requested that full benefits be reinstated, asserting that she was in constant pain and needed assistance with activities of daily living. She also submitted treatment notes dated May 20 to October 14, 2015 from Dr. Kraig Allan Ward, an attending Board-certified physiatrist and pain medicine specialist. In correspondence dated October 14, 2015, Dr. Ward advised that he began treating appellant in 2006 and opined that she continued to struggle with ongoing disabling back pain. He advised that an electrodiagnostic study demonstrated ongoing denervation, and that she had right lower extremity weakness and pain. By decision dated December 14, 2015, OWCP denied modification of the March 12, 2015 decision. It did not address the criteria for modifying a wage-earning capacity decision.

The Board finds that the issue presented in this case is whether the May 13, 2014 wage- earning capacity determination should be modified. With her November 10, 2015 reconsideration request appellant requested resumption of full wage-loss compensation and submitted evidence regarding her medical condition.

As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on May 13, 2014, prior to the time she requested reconsideration on November 10, 2015. Board precedent directs the claims examiner to consider the criteria for modification when a claimant requests resumption of compensation for total wage loss.3 The Board finds that OWCP should have adjudicated the issue of modification of the wage-earning capacity determination.4 If there is a claim for increased disability that would prevent a claimant from performing the position that was the basis for the wage-earning capacity decision, then clearly there is an issue of whether modification is appropriate.5 The Board will therefore remand the case to OWCP for proper adjudication, to be followed by an appropriate merit decision to preserve appellant’s appeal rights.

3
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 (June 2013). 4 F.B., Docket No. 09-99 (issued July 21, 2010).
5
R.L., Docket No. 16-0072 (issued February 11, 2016).

2
 IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: July 19, 2016
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