United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.P., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

NATURAL RESOURCES CONSERVATION 

SERVICE, Decatur, TX, Employer 

__________________________________________ 

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Docket No. 14-1316 

Issued: November 6, 2014 

Appearances: Case Submitted on the Record

S. Brock Benson, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2014 appellant, through counsel, filed a timely appeal of a November 27, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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. 

ISSUES 

The issues are: (1) whether OWCP properly found that an overpayment of compensation 

in the amount of $17,563.12 was created from November 25, 2012 to June 1, 2013; and 

(2) whether OWCP properly denied waiver of recovery of the overpayment. 

On appeal counsel contends that recovery of the overpayment would be against equity 

and good conscience. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 14, 2012 appellant, then a 60-year-old soil conservationist, filed a traumatic 

injury claim alleging that on October 10, 2012 he sustained a swollen and bruised ankle and 

spinal stress fractures as the result of a grand mal seizure.2 He stopped work on the date of the 

injury and has not returned to work. 

On October 22, 2012 OWCP received an October 12, 2012 Authorization for 

Examination and/or treatment (Form CA-16) and an attending physician’s report3 dated 

October 12, 2012. Appellant was diagnosed with lumbar spine fracture, seizure and ankle injury 

as the result of the incident. The physician checked “yes” to the question of whether the 

diagnosed conditions were employment related. In support of this conclusion, the physician 

noted that appellant was at work at the time the illness occurred. 

On October 29, 2012 OWCP accepted appellant’s claim for aggravation of generalized 

convulsive epilepsy, closed lumbar vertebra fracture with no spinal cord injury and left ankle and 

foot arthropathy. 

By letter dated March 26, 2013, OWCP placed appellant on the periodic rolls for 

temporary total disability. 

By decision dated April 18, 2013, OWCP rescinded acceptance of appellant’s claim. It 

found that the medical evidence submitted at the time it accepted his claim was insufficient to 

establish his claim. 

On May 28, 2013 appellant requested reconsideration and submitted evidence in support 

of his request. 

By decision dated August 23, 2013, OWCP denied modification. 

On October 15, 2013 OWCP advised appellant of a preliminary determination that an 

overpayment of compensation in the amount of $17,653.12 was created. In an accompanying 

memorandum, it noted that the acceptance of his claim had been rescinded and that 

compensation paid to him from November 25, 2012 to June 1, 2013 was an overpayment of 

compensation. Appellant was found not to be at fault in creating the overpayment. OWCP 

provided various appeal rights to appellant to contest its preliminary determination. 

On November 15, 2013 appellant requested a telephone conference with the district 

director, which was held on November 26, 2013. By decision dated November 27, 2013, OWCP 

finalized the finding of a $17,563.12 overpayment of compensation and also denied waiver of 

recovery of the overpayment. 

 2

 On the back of the form, the employing establishment noted the date of injury, first medical treatment and the 

date appellant stopped work as October 9, 2012 and the date of notice of the injury as October 10, 2012. 

3

 The signature on the form is illegible. 
3

LEGAL PRECEDENT -- ISSUE 1 

If OWCP properly rescinds acceptance of a claim, the compensation for wage loss paid 

does represent an overpayment of compensation.4

 With respect to a rescission of acceptance, the 

Board has upheld OWCP’s authority to reopen a claim at any time on its own motion under 5 

U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior decision and 

issue a new decision.5

 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.6

It is well established that, once OWCP accepts a claim, it has the burden of justifying 

termination or modification of compensation. This holds true where OWCP later decides that it 

has erroneously accepted a claim for compensation.7

 OWCP does not discharge its burden of 

proof by reviewing the evidence of record at the time of acceptance and arriving at a different 

conclusion from that of the initial adjudicator.8

 Probative and substantial positive evidence9 or 

sufficient legal argument10 must establish that the original determination was erroneous. OWCP 

must also provide a clear explanation of the rationale for rescission.11

OWCP’s procedure manual requires a pretermination notice where OWCP has accepted a 

claim and paid benefits and it is later determined that those benefits were accepted in error.12

ANALYSIS -- ISSUE 1 

The underlying overpayment in this case was based on OWCP’s April 18, 2013 

rescission of the acceptance of appellant’s traumatic injury claim. The Board must review the 

underlying decision to determine if an overpayment has been established.13

The Board finds that OWCP improperly rescinded acceptance of appellant’s claim. 

According to OWCP’s procedure manual, a pretermination notice is required when a rescission 

 4

 J.F., Docket No. 08-2396 (issued March 19, 2009); see, e.g., Major W. Jefferson, III, 47 ECAB 295 (1996).

5 V.C., 59 ECAB 137 (2007); Eli Jacobs, 32 ECAB 1147 (1981). 

6 Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993). 

7

 20 C.F.R. § 10.610; see V.C., supra note 5. 

8 Roseanna Brennan, 41 ECAB 92, 96 (1989). 

9 See, e.g., Beth A. Quimby, 41 ECAB 683 (1990). 

10 See V.C., supra note 5. 

11 Belinda R. Darville, 54 ECAB 656 (2003). 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(b)(10) (February 2013). 

13 See Russell E. Wageneck, 46 ECAB 653 (1995). 
4

is issued.14 In this case, by decision dated October 29, 2012, OWCP accepted appellant’s claim 

for aggravation of generalized convulsive epilepsy, closed lumbar vertebra fracture with no 

spinal cord injury and left ankle and foot arthropathy. In correspondence dated March 26, 2013, 

OWCP placed appellant on the periodic rolls for temporary total disability. By decision dated 

April 18, 2013, it rescinded acceptance of appellant’s traumatic injury claim.15 The case record 

does not establish that appellant received a pretermination notice between October 29, 2012 and 

April 18, 2013. In view of this procedural error, OWCP’s original determination of rescission is 

void ab initio. 

The Board finds OWCP did not meet its burden of proof to rescind acceptance of the 

claim. OWCP based the fact of overpayment on the rescission of acceptance of his claim. The 

Board finds that as OWCP did not properly rescind acceptance of appellant’s claim, the fact of 

overpayment has not been established. In view of the Board’s finding, OWCP’s denial of waiver 

of recovery of the overpayment is moot. 

CONCLUSION 

Fact of overpayment has not been established in this case as OWCP did not properly 

rescind acceptance of appellant’s claim. 

 14 Supra note 12. See also supra note 12 at Chapter 2.1400.19 (where the original decision may have been issued 

in error, OWCP must perform any necessary case development to fully resolve the matter before rendering proposed 

and final decisions rescinding the original finding), and P.V., Docket No. 12-1822 (issued June 7, 2013). 

15 OWCP based the rescission of appellant’s claim on the grounds that the evidence at the time of its acceptance 

was insufficient. 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 27, 2013 is reversed. 

Issued: November 6, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board