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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of MICHAEL L. ROSENBAUM and GALLAUDET UNIVERSITY,

Washington, DC

 

Docket No. 96-2469; Submitted on the Record;

Issued August 3, 1999

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DECISION and ORDER

 

Before   DAVID S. GERSON, WILLIE T.C. THOMAS,

MICHAEL E. GROOM

 

 

            The issue is whether the Office of Workers’ Compensation Programs met its burden of proof to rescind acceptance of appellant’s claim.

            In the present case, the Office accepted that appellant, a teacher, at Gallaudet University, sustained right-sided neuroma, ulnar nerve compression and left-sided ulnar neuropathy as a result of his signing duties on or about November 22, 1988.  The Office rescinded acceptance of appellant’s claim by decision dated May 3, 1996 and terminated all benefits effective that day, on the grounds that appellant was not an “employee” as defined by section 8101(1)(A) of the Federal Employees’ Compensation Act[1] and, therefore, was not entitled to receipt of compensation benefits under the Act. 

            The Board has upheld the Office’s authority to reopen a claim at any time on its own motion under section 8128(a) of the Act[2] and, where supported by the evidence, set aside or modify a prior decision and issue a new decision.[3]  This holds true where the Office later decides that it erroneously accepted a claim.[4]  The Board has noted, however, that the power to annul an award is not an arbitrary one and that an award for compensation can only be set aside in the manner provided by the compensation statute.[5]  It is well established that once the Office accepts a claim, it has the burden of justifying termination or modification of compensation.[6]  To justify rescission of acceptance, the Office must establish that its prior acceptance was erroneous based on new or different evidence or through new legal argument and/or rationale.[7]

            In a memorandum to the Director dated April 1, 1996, the Office claims examiner explained that as a result of an inquiry from Gallaudet University regarding its workers’ compensation costs and whether its employees were properly considered federal employees within the meaning of the Act, the Office had further evaluated the issue of coverage of Gallaudet employees under the Act.  The claims examiner stated that based upon this inquiry, the Office had determined that Gallaudet University employees were not federal employees, for the Act purposes.

            The Board finds that the Office met its burden of proof to rescind acceptance of appellant’s claim.

            At the time the Office accepted appellant’s claim, the Office did not evaluate whether appellant, as an employee of Gallaudet University, was in fact an “employee” pursuant to the terms of the Act.  An essential element of each claim under the Act is that the claimant be a civil employee of the United States at the time of injury.[8]  During 1996 the Office made a new legal determination that employees of Gallaudet University were not federal employees pursuant to the Act.

            The Board has previously considered this issue and has determined in Barbara L. Riggs,[9] that Gallaudet University employees are not federal “employee[s]” pursuant to the Act.  For purposes of determining entitlement to compensation benefits under the Act, an “employee” is defined, in relevant part, as:

“(A) a civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States….”[10]

            Appellant must therefore establish that Gallaudet University is either a part of a branch of the United States Government or that it is wholly owned by the United States, pursuant to section 8101(1)(A), in order to establish that he is an “employee” entitled to compensation.  The Board noted that unlike the United States Postal Service, which was “established, as an independent establishment of the executive branch of the Government of the United States,”[11] Gallaudet University is not, by statute, a part of any branch of the United States government.[12]  Moreover, Gallaudet University is not wholly owned by the United States as is the Smithsonian Institution, which was established as a trust instrumentality of the United States.[13]  The Board therefore concluded in Riggs, that because Gallaudet University is neither a part of any branch of the United States Government nor wholly owned by it, appellant was not an “employee” pursuant to the Act.[14]

            The Office’s 1996 legal determination that Gallaudet employees are not “employee[s]” pursuant to the Act was a proper interpretation of the Act, was a new legal determination and was a basis for rescission of the claim.[15]

            Appellant asserts on appeal that the Office should be equitably estopped from rescinding acceptance of his claim.  In the Riggs case,[16] the Board found that equitable estoppel was inapplicable inasmuch as section 8128(a) of the Act provided that the Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application.

            The decision of the Office of Workers’ Compensation Programs dated May 3, 1996 is hereby affirmed.

Dated,  Washington, D.C.

            August 3, 1999

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member