S.G. and U.S. Postal Service, Main Post Office, St. Paul, MN (Board decision, September 13, 2012)

ECAB remand decision. The Board set aside OWCP's March 16, 2011 decision and remanded S.G.'s wage-loss claim for development under FECA Bulletin No. 09-05. OWCP must decide entitlement to wage-loss compensation beginning May 14, 2010 anew; the issue 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

S.G., a Postal Service mail processor with accepted back injuries, worked in a modified position that OWCP used to determine she had no loss of wage-earning capacity. The Postal Service later withdrew the work under its National Reassessment Process, and she sought wage-loss compensation. OWCP denied modification of the earlier determination after finding the job was not makeshift. The Board found that OWCP had not followed FECA Bulletin No. 09-05, which requires further evidence development when a rated limited-duty position is withdrawn. It set aside OWCP's decision and directed a new determination after that development.

Decision snapshot

• Authority: FECA Bulletin No. 09-05 procedures for withdrawn limited-duty positions.
• Outcome: OWCP's March 16, 2011 decision set aside and remanded for a new wage-loss decision.
• Key point: OWCP needed to examine the basis for the rated position and current medical evidence under the bulletin.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.G., Appellant
)
)
and ) Docket No. 11-1588
) Issued: September 13, 2012
U.S. POSTAL SERVICE, MAIN POST OFFICE,
)
St. Paul, MN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Charles M. Cochrane, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On June 21, 2011 appellant, through her attorney, filed a timely appeal from a March 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of a loss of wage-earning capacity decision. 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 modification of the April 13, 2009 loss of wage-earning capacity determination.

FACTUAL HISTORY

On October 25, 2005 appellant, then a 42-year-old mail processor, filed an occupational disease claim alleging that she injured her back causally related to factors of her federal

1
5 U.S.C. § 8101 et seq. employment. OWCP accepted the claim for herniated discs at L4-5 and L5-S1. On June 22, 2006 appellant underwent a discectomy at L4-5 and decompression of lateral recess stenosis. She returned to limited-duty employment on September 25, 2006.

On December 31, 2008 appellant accepted an offer of modified employment with the employing establishment. Her duties included casing mail for six hours a day, riffling through letters two hours a day, sweeping a letter case for 30 minutes a day and working “[a]s directed within restrictions” for 8 hours a day.

By decision dated April 13, 2009, OWCP found that appellant’s actual earnings as a modified mail processing clerk fairly and reasonably represented her wage-earning capacity and that her earnings met or exceeded that of the job held when injured.

On May 26, 2010 appellant filed a notice of recurrence of disability dated May 14, 2010 causally related to her accepted employment injury. She indicated that the employing establishment withdrew her job offer because there was no work available under the National Reassessment Program (NRP). Appellant also filed a claim for compensation (Form CA-7) on May 21, 2010 requesting compensation beginning May 10, 2010.

In response to OWCP’s request for additional information, by letter dated June 15, 2010, appellant related that she believed that the original loss of wage-earning capacity determination was in error as she was sent home on May 15, 2010 without accommodation.2 She maintained that the nature and extent of her disability due to her employment injury had not changed. Appellant noted that the employing establishment instructed her to file a notice of recurrence of disability and claim for compensation for her lost wages.

By decision dated July 20, 2010, OWCP denied modification of the April 13, 2009 loss of wage-earning capacity determination. It found that appellant had not established a material change in her injury-related condition.

On August 18, 2010 appellant requested an oral hearing before an OWCP hearing representative. By letter dated October 12, 2010, her attorney argued that the position provided by the employing establishment was created solely for appellant and was “never available for application or bid by other employees….”3

At the hearing, held on December 28, 2010, appellant related that the job offered on December 31, 2008 was not a bid position. In the modified position she cased mail for four to five hours per day and riffled through mail to make sure letters had proper postage. After her limited-duty position was removed, she returned to work on July 4, 2010 for two and a half hours per day. Appellant’s attorney argued that the job was provided to “accommodate her restrictions

2
In a report dated July 7, 2010, Dr. Charles J. Hipp, a Board-certified internist, found that appellant required modified duty due to continued low back and radicular symptoms from her work injury. He stated, “Her medical condition has been stable and has not worsened nor has it improved.” 3 On December 1, 2010 the employing establishment discussed appellant’s limited-duty position based on the December 31, 2008 job offer and asserted that the work she performed was necessary but that due to a reduction in mail volume was now done by bid employees.

2 after [her] work injury” rather than a position that other employees could apply for. He contended that the position was makeshift.

By decision dated March 16, 2011, the hearing representative affirmed the July 20, 2010 decision. He found that the position was not makeshift as it required casing mail and as the employing establishment described it as necessary work.

On appeal appellant’s attorney argues that OWCP improperly failed to send him a copy of the December 1, 2010 letter from the employing establishment. He further contends that the December 31, 2008 position was makeshift as it had no position title and included duties from various positions to accommodate appellant’s restrictions.

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.4 The burden of proof is on the party attempting to show a modification of the wage-earning capacity determination.5

FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of wage- earning capacity decision has been issued, OWCP must develop the evidence to determine whether a modification of that decision is appropriate.6

ANALYSIS

OWCP accepted that appellant sustained herniated discs at L4-5 and L5-S1 causally related to factors of her federal employment and authorized a June 22, 2006 discectomy at L4-5 and decompression of lateral recess stenosis. She returned to limited-duty employment on September 25, 2006. On December 31, 2008 appellant accepted an offer of modified assignment. By decision dated April 13, 2009, OWCP determined that her actual earnings as a modified mail processor effective December 31, 2008 fairly and reasonably represented her wage-earning capacity.

Appellant worked in the full-time modified-duty position until May 14, 2010, when the employing establishment sent her home as part of NRP after determining that it did not have work available for her position. She filed a claim for compensation and notice of recurrence of disability based on the withdrawal of her job offer under NRP. Appellant, through her attorney, argued that the original determination was erroneous as it was a makeshift position created specifically for her needs.

4
Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).
5
Id.
6
FECA Bulletin No. 09-05 (issued August 18, 2009).

3
 As noted, OWCP issued a formal loss of wage-earning capacity decision on April 13, 2009. The employing establishment reassessed appellant’s rated position under NRP, resulting in a withdrawal of limited duty and a claim for wage-loss compensation beginning May 14, 2010 filed by appellant. OWCP analyzed the case under the customary criteria for modifying a loss of wage-earning capacity determination, but did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined therein for claims, such as this, in which limited-duty positions are withdrawn pursuant to NRP.

When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 09-05 requires OWCP to develop the evidence to determine whether a modification of the decision is appropriate.7 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain documentary evidence supporting that the position was an actual bona fide position. FECA Bulletin No. 09-05 requires OWCP to review whether a current medical report supports work- related disability and establishes that the current need for limited duty or medical treatment is a result of injury-related residuals, and to further develop the evidence from both the claimant and the employing establishment if the case lacks current medical evidence.8

Further, the Bulletin states that OWCP may undertake further nonmedical development, such as requiring that the employing establishment address in writing whether the position on which the loss of wage-earning capacity determination was based was a bona fide position at the time of the rating, and to direct the employing establishment to review its files for contemporaneous evidence concerning the position.9

If, after development and review by OWCP, the evidence establishes that the loss of wage-earning capacity decision was proper and none of the customary criteria for modifying the determination were met, then OWCP may issue a decision denying modification of the loss of wage-earning capacity determination.10

As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set aside the March 16, 2011 decision and remand the case for further consideration. After proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate de novo decision on appellant’s entitlement to wage-loss compensation beginning May 14, 2010.11

CONCLUSION

The Board finds that the case is not in posture for decision.

7
Id.
8
Id. at § I.A.1-2
9
Id. at § I.A.3.
10
Id. at § I.A.4.
11
See M.E., Docket No. 11-1416 (issued May 17, 2012).

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 ORDER

IT IS HEREBY ORDERED THAT the March 16, 2011 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: September 13, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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