United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.L., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 15-428 

Issued: June 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 December 16, 2014 appellant filed a timely appeal from an October 31, 2014 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 appellant received an 

overpayment of compensation in the amount of $851.80; and (2) whether she was at fault in the 

creation of the overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 13, 2011 appellant, then a 57-year-old customer contract representative, filed a 

traumatic injury claim alleging that on May 13, 2011 she sustained knee and back pain when she 

slipped on water and fell. OWCP accepted the claim for a left wrist sprain, a left knee sprain at 

the lateral collateral ligament, and neck sprain. On March 27, 2013 it expanded acceptance of 

the claim to include displacement of a cervical intervertebral disc without myelopathy. 

Appellant worked with restrictions until May 25, 2011, when she resumed her usual 

employment. The employing establishment noted that the restrictions of Dr. Shevin D. 

Pollydore, an attending physiatrist, did not exceed the requirements of her usual position, which 

consisted of sitting, data input for three hours per day at a computer, no overhead reaching, 

walking, bending, and stooping intermittently, and intermittently lifting, carrying, pulling, and 

pushing no more than 20 pounds. 

In progress reports dated August 2012 through April 2013, Dr. Pollydore diagnosed 

cervical strain, cervical facet pain, cervicalgia, and numbness and tingling of the left upper 

extremity. He found that appellant could work lifting no more than 10 pounds frequently or 20 

pounds occasionally, with no overhead lifting, reaching, and no pulling over 25 pounds. 

Dr. Pollydore indicated that her physicians at the Department of Veterans Affairs may have 

found her unable to work. 

By letter dated February 20, 2013, the employing establishment advised appellant that it 

would remove her from employment if she did not return to work. It notified her that it had 

charged her as absent without leave (AWOL) from January 28 through February 1, February 4 

through 8, February 11 through 15, and February 18 through 22, 2013. 

In a February 27, 2013 response, appellant asserted that she was disabled as a result of 

her May 13, 2011 work injury and described the medical treatment she was receiving. 

On March 8, 2013 appellant requested leave under the Family and Medical Leave Act 

from March 1 to June 7, 2013, citing as a reason severe depression and a herniated disc due to 

her May 13, 2011 work injury. 

On April 11, 2013 the employing establishment advised appellant that it was removing 

her from employment effective April 15, 2013. On April 16, 2013 appellant resigned from the 

employing establishment, citing “personal reasons.” 

On October 26, 2013 appellant filed a claim for compensation for leave without pay from 

July 29, 2012 to April 14, 2013. The employing establishment challenged the claim, arguing that 

the medical evidence did not show total disability. 

By decision dated December 10, 2013, OWCP denied appellant’s claim for compensation 

for total disability from July 29, 2012 to April 15, 2013. It found that the medical evidence was 

insufficient to show that she was totally disabled beginning July 29, 2012 as a result of her 

May 13, 2011 employment injury. OWCP did, however, authorize payment of 184 hours of 

appointments for medical treatment and physical therapy during this period. 
3

On December 17, 2013 OWCP paid appellant compensation for 184 hours of time lost 

due to physical therapy and medical appointments for the period July 29, 2012 through 

April 14, 2013. It noted that she had resigned from work on April 15, 2013. 

On January 9, 2014 appellant requested a review of the written record by an OWCP 

hearing representative. Following a preliminary review, on May 7, 2014 the hearing 

representative vacated the December 10, 2013 decision. She noted that there was no Form CA7a providing appellant’s leave usage for the period July 29, 2012 to April 14, 2013 and thus “no 

basis for [OWCP’s] payment of 184 hours of compensation during the period.” While the 

employing establishment advised that appellant was not claiming intermittent wage loss, it 

appeared that she returned to work after a July 2012 psychiatric hospitalization. She noted that 

the medical evidence did not show that appellant was totally disabled as a result of her May 13, 

2011 employment injury. The hearing representative remanded the case for OWCP to clarify the 

hours that it found appellant entitled to compensation from July 29, 2012 to April 15, 2013 and 

obtain her pay status from the employing establishment for the dates in question.2

 

On October 25, 2013 the employing establishment submitted a leave analysis for the 

period July 29, 2012 to April 15, 2013. It indicated that appellant was on leave without pay from 

July 29, 2012 until January 26, 2013 and marked as AWOL from January 28 to April 15, 2013. 

On September 29, 2014 OWCP advised appellant of its preliminary determination that 

she received an overpayment of compensation in the amount of $851.80 because it paid her 

compensation for intermittent time lost from work for the period January 28 to April 14, 2013 

when she was AWOL. It calculated that she received an overpayment of $851.80 because it paid 

her $2,297.67 for 184 hours of time lost for medical appointments from July 29, 2012 to 

April 14, 2013 when she was only entitled to 116 hours, or $1,445.87, as she was AWOL 

beginning January 28, 2013. OWCP further advised appellant of its preliminary determination 

that she was at fault in the creation of the overpayment as she knew or should have known that 

she was not entitled to compensation when AWOL. It requested that she complete the enclosed 

overpayment recovery questionnaire and submit supporting financial documents. Additionally, 

OWCP notified her that, within 30 days of the date of the letter, appellant could request a 

telephone conference, a final decision based on the written evidence, or a prerecoupment 

hearing. No response was received from her following the notice. 

By decision dated October 31, 2014, OWCP found that appellant received an 

overpayment of compensation in the amount of $851.80 for the period January 28 to April 14, 

2013 and that she was at fault in creating the overpayment. It determined that she should submit 

a check for the entire amount as repayment. 

On appeal appellant asserts that the employing establishment did not tell her that she was 

AWOL. She disagreed that the overpayment occurred or that she was at fault in its creation. 

 2

 The hearing representative also instructed OWCP to clarify if appellant sustained a herniated disc from C2 to C6 

as a result of her work injury. 
4

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.3

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.4

 OWCP’s regulations state in pertinent part: 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.5

 

OWCP’s procedures provide: 

“A claimant who has returned to work following an accepted injury or illness may 

need to undergo examination, testing, or treatment. Such a claimant may be paid 

compensation for wage loss under 5 U.S.C. 8103 while obtaining the medical 

services or treatment -- 

(1) Reimbursement for lost wages for attending medical appointments 

incudes a reasonable time spent traveling to and from the provider’s 

location. 

(2) Wage loss if payable only if the examination, testing, or treatment is 

provided on a day which is a scheduled workday and during a scheduled 

tour of duty. Wage-loss compensation for medical treatment received 

during off-duty hours is not reimbursable.”6 (Emphasis in the original.) 

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on her own motion or application.7

 The Board has 

upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under 

section 8128 of FECA.8

 The power to annul an award, however, is not an arbitrary one and an 

 3

 5 U.S.C. § 8102. 

4 Id. at § 8116(a). 

5

 20 C.F.R. § 10.500. 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19(a) 

(February 2013). 

7

 5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007). 

8 John W. Graves, 52 ECAB 160 (2000). 
5

award for compensation can only be set aside in the manner provided by the compensation 

statute.9

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory 

provision, where there is good cause for so doing, such as mistake or fraud.10 It is well 

established that, once OWCP accepts the claim, it has the burden of justifying the termination or 

modification of compensation benefits.11 Its burden of justifying termination or modification of 

compensation holds true where OWCP later decides that it has erroneously accepted a claim of 

compensation. In establishing that its prior acceptance was erroneous, OWCP is required to 

provide a clear explanation of its rationale for rescission.12

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a left wrist sprain, left knee sprain, neck sprain, 

and displacement of a cervical intervertebral disc without myelopathy due to a May 13, 2011 

employment injury. Appellant worked with limitations until May 25, 2011, when she returned to 

her regular duties. 

On October 26, 2013 appellant filed a claim for compensation from July 29, 2012 to 

April 14, 2013. She did not submit any medical evidence showing that she was unable to 

perform her employment duties as a result of her injury. On December 17, 2013 OWCP paid 

appellant net compensation of $2,297.67 for 184 hours of time lost to attend medical 

appointments and physical therapy from July 29, 2012 to April 15, 2013. It noted that she had 

resigned from federal employment on April 15, 2013. 

On May 7, 2014 an OWCP hearing representative remanded the case for OWCP to 

clarify appellant’s pay status and the hours to which it found her entitled to compensation from 

July 29, 2012 to April 15, 2013. The employing establishment provided a leave analysis 

indicating that she was AWOL commencing January 28, 2013. On September 29, 2014 OWCP 

determined it had erroneously paid appellant compensation for time lost for medical and physical 

therapy appointments beginning January 28, 2013 because she was AWOL. It subtracted the 

entire amount paid for the period after January 28, 2013, $1,445.87, from the $2,297.67 

previously paid from July 29 to April 14, 2013 to find an overpayment of $851.80. OWCP did 

not explain, however, why appellant was not entitled to time lost for medical appointments 

during the period in which she was AWOL. An injured employee may be entitled to 

compensation for lost wages incurred while obtaining authorized medical services on a 

scheduled workday during a scheduled tour of duty.13 This includes the actual time spent 

 9 See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002). 

10 L.C., 58 ECAB 493 (2007). 

11 Andrew Wolfgang-Masters, 56 ECAB 411 (2005). 

12 See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004). 

13 See 5 U.S.C. 8103(a); Gayle L. Jackson, 57 ECAB 546 (2006). 
6

obtaining the medical services and a reasonable time spent traveling to and from the medical 

provider’s location.14 Further, as OWCP previously found appellant entitled to compensation for 

this period, it has the burden to rescind acceptance of her claim for time lost due to medical 

appointments. As discussed, once it accepts a claim, it has the burden of justifying the 

termination or modification of compensation benefits.15 In establishing that its prior acceptance 

was erroneous, OWCP is required to provide a clear explanation of its rationale for rescission.16

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

appellant’s claim for compensation for time lost due to medical services from January 28 to 

April 14, 2013. Consequently, OWCP did not meet its burden of proof to establish the 

overpayment of compensation. 

CONCLUSION 

The Board finds that this case is not in posture and that the overpayment decision of 

October 31, 2014 is set aside. 

 14 Supra note 6 at Chapter 2.901.19(a)(1) (February 2013). 

15 Andrew Wolfgang-Masters, 56 ECAB 411 (2005). 

16 Supra note 12. 
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ORDER 

IT IS HEREBY ORDERED THAT the October 31, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board. 

Issued: June 4, 2015 

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