R.E. and Department of the Army, Defense Commissary Agency, Fort Benning, GA (Board decision, March 7, 2018)

ECAB final decision. The Board set aside OWCP’s December 20, 2016 wage-loss denial because R.E.’s claim for the same period was moot after back pay; no wage-loss compensation is due for that period. 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

R.E., a commissary employee, sought wage-loss compensation for May 13 through June 4, 2011. An employment decision later awarded back pay covering those dates. The Board held that the wage-loss question was moot because she had received wages for the claimed period. It set aside OWCP’s denial without awarding duplicate compensation.

Decision snapshot

• Authority: 5 U.S.C. § 8116(a).
• Outcome: December 20, 2016 denial set aside; wage-loss issue moot.
• Key point: Back pay for the same period precluded a separate wage-loss award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.E., Appellant
)
)
and ) Docket No. 17-1289
) Issued: March 7, 2018
DEPARTMENT OF THE ARMY, DEFENSE
)
COMMISSARY AGENCY, Fort Benning, GA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

On May 24, 2014 appellant filed an application for review of a December 20, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 The appeal was docketed as No. 17-1289.2

In the December 20, 2016 decision, an OWCP hearing representative affirmed a January 26, 2016 OWCP decision that denied appellant’s claim for wage-loss compensation for the period May 13 through June 4, 2011. It found that appellant submitted insufficient evidence to establish that she was disabled from work due to the accepted right shoulder conditions.

1
Appellant timely requested oral argument. 20 C.F.R. § 501.5(b). By order dated November 3, 2017, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 17-1289 (issued November 3, 2017). 2 In the instant claim, OWCP accepted that, on May 17, 2006, appellant, a part-time sales store checker working modified duty, sustained rotator cuff strain and adhesive capsulitis of the right shoulder. She had right shoulder surgery on November 11, 2008 and February 5, 2010. Appellant also has a claim, accepted for low back strain, adjudicated under File No. xxxxxx105. Under that claim, appellant has a second appeal before the Board, Docket No. 17-1288, that will be adjudicated separately. The relevant facts include that on May 21, 2011 appellant filed a claim for compensation (Form CA-7) for the period May 13 to 21, 2011. In correspondence dated October 21, 2014, the employing establishment notified appellant that, in compliance with a June 24, 2014 bench decision issued by an Equal Employment Opportunity Commission (EEOC) judge, she was awarded back pay for the period May 12 through June 18, 2011.3

Section 8102 of FECA provides that the United States shall pay compensation for the disability or death of an employee resulting from personal injury sustained while in the performance of duty.4 Section 8116 of FECA defines the limitations on the right to receive compensation benefits. This section of FECA provides that while an employee is receiving compensation, he or she may not receive salary, pay or remuneration of any type from the United States, except in limited circumstances.5 Section 10.500 of OWCP’s regulations provides that “compensation for wage loss due to disability is available only for any periods during which an employee’s work-related medical condition prevents him or her from earning the wages earned before the work-related injury.”6

The Board has duly considered the matter and concludes that OWCP’s December 20, 2016 decision must be set aside. The merit issue in the instant claim, whether appellant established entitlement to wage-loss compensation for the period May 13 through June 4, 2011 is moot.7 The record supports that appellant has received wages for the period she is claiming compensation in this appeal. Appellant is, therefore, not entitled to wage-loss compensation for this period.8

3
The EEOC decision also awarded appellant $8,000.00 in non-pecuniary compensatory damages. The record also includes an incomplete copy of a bench decision.
4
5 U.S.C. § 8102(a).
5
Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).
6
20 C.F.R. § 10.500.
7
See L.L., Docket No. 13-1122 (issued September 26, 2014).
8
Supra note 6.

2
 IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 20, 2016 is set aside.

Issued: March 7, 2018
Washington, DC

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

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

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

3