United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, Buffalo, NY, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-0464

Issued: October 4, 2017

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 28, 2016 appellant, through counsel, filed a timely appeal from a July 26, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of the case.3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted evidence to OWCP subsequent to the July 26, 2016 decision and with 

her appeal to the Board. The Board cannot consider this evidence for the first time on appeal as its jurisdiction is 

limited to the evidence that was before OWCP at the time it issued its final decision. 20 C.F.R. § 501.2(c)(1); P.W., 

Docket No. 12-1262 (issued December 5, 2012). 
2

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount $18,366.83 for the period April 29 through November 28, 2014 because she was not 

entitled to wage-loss compensation for that period; and (2) whether OWCP properly found 

appellant at fault and thus not entitled to waiver.

On appeal counsel asserts that OWCP improperly issued the July 26, 2016 overpayment 

decision because on December 5, 2014 appellant timely requested reconsideration of a 

December 17, 2013 OWCP merit decision that denied modification of OWCP’s March 18, 2013 

suitable work termination. He asserts that, as OWCP based its conclusions in the overpayment 

decision on its March 18, 2013 suitable work termination, the July 26, 2016 decision was 

improperly issued. Counsel further asserts that he timely submitted additional evidence 

following the preliminary overpayment finding, including a request for a prerecoupment hearing.

FACTUAL HISTORY

On December 7, 2011 OWCP accepted appellant’s traumatic injury claim (Form CA-1) 

for a left sprain of shoulder and rotator cuff, which occurred on November 15, 2011. 

Dr. Donald P. Douglas, a Board-certified orthopedic surgeon, performed arthroscopic 

debridement of the left shoulder on May 22, 2012. Appellant did not return to work following 

the surgery. 

On January 15, 2013 the employing establishment offered appellant a secretary 

(automation) position, based on the restrictions provided by Dr. Robert Ungerer, a Boardcertified orthopedic surgeon and OWCP referral physician who examined her on February 15 

and December 19, 2012.

By letter dated January 15, 2013, OWCP advised appellant that the position offered was 

suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for 

wage loss or a schedule award would be terminated. She was given 30 days to respond. 

Appellant refused the offered position on January 28, 2013, stating that she was disabled 

from work due to the accepted employment injury. On February 1, 2013 she disagreed with the 

proposed termination. By letter dated February 19, 2013, OWCP advised appellant that her 

reasons for refusing the offered position were not valid. Appellant was given an additional 15 

days to accept. In medical reports dated February 25, 2013, Dr. Douglas noted that she

continued to have left shoulder pain and limited motion. He advised that appellant was totally 

disabled. Appellant did not accept the position.

By decision dated March 18, 2013, OWCP terminated appellant’s wage-loss 

compensation and schedule award benefits pursuant to section 8106(c) of FECA, effective 

March 15, 2013. Appellant requested reconsideration on October 24, 2013. She submitted 

additional reports from Dr. Douglas dated April 8 to October 16, 2013 in which he diagnosed 

chronic left shoulder pain and adhesive capsulitis and advised that she was totally disabled. On 

June 10, 2013 Dr. Douglas requested authorization for additional surgery.
3

In a merit decision dated December 17, 2013, OWCP denied modification of its 

March 18, 2013 decision.

OWCP authorized additional surgery, and on April 29, 2014 Dr. Douglas performed 

arthroscopic manipulation of left shoulder for adhesive capsulitis. On July 26, 2014 appellant 

filed a claim for recurrence of disability (Form CA-2a). On July 31, 2014 OWCP accepted 

appellant’s claim for a recurrence beginning April 29, 2014. Appellant was paid wage-loss 

compensation beginning that day.

On December 5, 2014 appellant, through counsel, timely requested reconsideration of the 

December 17, 2013 decision that denied modification of the March 18, 2013 suitable work 

termination. He asserted that the position offered to appellant was not suitable, based on the 

medical evidence, and that OWCP had not accepted all compensable injuries caused by the 

November 15, 2011 employment injury. Counsel also submitted a February 21, 2014 report in

which Dr. Douglas reiterated his request for surgery due to arthrofibrosis/scarring of the 

shoulder.

Following inquiries by the employing establishment in August and September 2014 and 

January 2015,4by decision dated February 9, 2015, OWCP found that appellant was not entitled 

to wage-loss compensation for the period December 1, 2014 and continuing. It noted that the 

March 18, 2013 termination decision remained in effect and she had erroneously been paid 

compensation for the period April 29 through November 28, 2014. In separate correspondence 

dated February 9, 2015, OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $18,366.83 had been created because appellant received 

compensation for the period April 29 through November 28, 2014 to which she was not entitled 

because her entitlement to wage-loss benefits had been terminated in March 2013. Appellant 

requested a prerecoupment hearing with OWCP’s Branch of Hearings and Review and by 

decision dated September 4, 2015, an OWCP hearing representative remanded the case to 

OWCP because it had not properly rescinded acceptance of the recurrence of disability which 

formed the basis of the overpayment.

On December 8, 2015 OWCP issued a notice of proposed rescission of acceptance of the 

recurrence of disability for which appellant was paid compensation for the period April 29 

through November 28, 2014. It found that the July 31, 2014 decision had been issued in error 

because her entitlement to wage-loss and schedule award compensation benefits had been 

terminated by decision dated March 18, 2013 based on her refusal to accept suitable 

employment. OWCP finalized the rescission on January 20, 2016. In a separate January 20, 

2016 decision, it denied appellant’s claim for a recurrence of disability beginning April 29, 2014 

and continuing through November 28, 2014.5

 

4 The employing establishment noted that appellant had not worked since May 2012, and that OWCP had issued a 

March 17, 2013 decision terminating her entitlement to monetary compensation because she refused an offer of 

suitable work.

5 Appellant, through counsel, filed an appeal with the Board from both January 20, 2016 decisions. The Board 

assigned Docket No. 16-1467 to this appeal, which will be adjudicated separately. 
4

In correspondence dated May 10, 2016 and received by OWCP on May 16, 2016, 

appellant, through counsel, requested reconsideration of the February 9, 2015 decision in which 

OWCP found that appellant was not entitled to wage-loss compensation for the period 

December 1, 2014 and continuing.

On June 20, 2016 OWCP again issued a preliminary finding that an overpayment of 

compensation in the amount of $18,366.83 had been created because appellant received 

compensation for the period April 29 through November 28, 2014 to which she was not entitled 

because her entitlement to wage-loss benefits had been terminated in March 2013. It found her 

at fault because she accepted payments that she knew or reasonably should have known was 

incorrect. The preliminary decision provided an explanation of the calculation of the 

overpayment. Appellant was provided an overpayment action request and an overpayment 

questionnaire (Form CA-20). She was informed of the actions that she could take and was 

allotted 30 days to respond. An overpayment worksheet indicated that appellant received FECA 

compensation totaling $18,366.83 for the period April 29 through November 28, 2014.

By decision dated July 26, 2016, OWCP finalized the preliminary finding that appellant 

was at fault in the creation of an overpayment of $18,366.83 from April 29 through 

November 28, 2014. It noted that no response was received following the preliminary finding. 

OWCP directed that appellant repay the overpayment in full or contact it to make appropriate 

arrangements.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) 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.6 When an overpayment has been made to an individual because of an error 

of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor 

by decreasing later payments to which the individual is entitled.7

Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek 

suitable work or refuses or neglects to work after suitable work is offered to, procured by or 

secured for her is not entitled to compensation.8 The implementing regulations provide that a 

partially disabled employee who refuses to seek suitable work, or refuses to or neglects to work 

after suitable work is offered to or arranged for him or her, is not entitled to compensation, 

including compensation for a schedule award under section 8107 of FECA.9

ANALYSIS -- ISSUE 1

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

 

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8106(c)(2).

9

20 C.F.R. § 10.517.
5

The basis for each OWCP decision issued by OWCP subsequent to its acceptance of the 

April 29, 2014 recurrence of disability flows from its March 18, 2013 decision in which 

appellant’s entitlement to wage-loss and schedule award compensation was terminated in 

accordance with section 8106(c) of FECA because she failed to accepted suitable employment. 

As noted by counsel in this appeal, in a merit decision dated December 17, 2013, OWCP denied 

modification of the March 18, 2013 decision. The record before the Board in this case indicates 

that appellant, through counsel, timely filed a request for reconsideration of the December 17, 

2013 decision with OWCP on December 5, 2014. The record before the Board does not contain 

an OWCP decision responsive to this request. 

The next OWCP decision of record is the February 9, 2015 merit decision in which 

OWCP found that appellant was not entitled to wage-loss compensation for the period 

December 1, 2014 and continuing. On that date OWCP also issued a preliminary overpayment 

finding that an overpayment of compensation had been created because appellant received 

$18,366.83 in FECA compensation in error for the period April 29 through November 28, 2014, 

after her entitlement to wage-loss compensation had been terminated. The preliminary 

overpayment decision was remanded to OWCP by its Branch of Hearings and Review on 

September 4, 2015. The hearing representative noted that OWCP had not properly rescinded 

acceptance of the April 29, 2014 recurrence of disability which formed the basis of the 

overpayment. On December 8, 2015 OWCP then issued a notice of proposed rescission of 

acceptance of the April 29, 2014 recurrence of disability, and finalized the rescission by decision 

dated January 20, 2016. In a separate January 20, 2016 decision, it denied appellant’s claim for a 

recurrence of disability beginning on April 29, 2014.

On June 20, 2016 OWCP again issued a preliminary finding that appellant was at fault in 

the creation of an overpayment of compensation in the amount of $18,366.83 for the period 

April 29 through November 28, 2014 because her entitlement to wage-loss benefits had been 

terminated in March 2013. By decision dated July 26, 2016, OWCP finalized the preliminary 

overpayment finding and directed that appellant repay the overpayment in full or contact it to 

make appropriate arrangements.

Proceedings under FECA are not adversarial in nature. OWCP shares in the 

responsibility to develop the evidence and has an obligation to see that justice is done.10 The

July 26, 2016 overpayment decision at issue in this case flowed from OWCP’s March 18, 2013 

suitable work termination decision that was affirmed in a merit decision dated 

December 17, 2013. Appellant, through counsel, timely filed a reconsideration request from the 

December 17, 2013 decision. In the December 5, 2014 reconsideration request, counsel made 

cogent arguments and submitted an additional medical report.

The Board has long held that OWCP shall review all evidence submitted by a claimant 

and received by OWCP prior to issuance of its decision.11 OWCP procedures also provide that a 

 

10 P.K., Docket No. 08-2551 (issued June 2, 2009).

11 See Kenneth R. Love, 50 ECAB 193 (1998).
6

final decision on a reconsideration request must be issued, and the goal for issuing such decision 

is 90 days from receipt of the request.12

In the case Kenneth E. Harris, the Board held that OWCP issued a decision in error, as 

there was an outstanding request for reconsideration which remained unadjudicated.13 In the 

case at hand, it was improper for OWCP to issue further decisions, including the January 20, 

2016 decisions before the Board in the present appeal, without addressing the arguments and 

evidence submitted with appellant’s December 5, 2014 reconsideration request.14 Thus, this case 

must be remanded to OWCP to issue an appropriate decision on her December 5, 2014 

reconsideration request before addressing whether an overpayment of compensation was created. 

In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.

CONCLUSION

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

 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2.b (October 2011).

13 54 ECAB 502 (2003).

14 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of 

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

proceedings consistent with this order of the Board.

Issued: October 4, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board