United States Department of Labor

Employees’ Compensation Appeals Board

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L.T., Appellant

and

DEPARTMENT OF THE ARMY, MARYLAND 

NATIONAL GUARD, Baltimore, MD, Employer

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Docket No. 20-0180

Issued: December 14, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On October 31, 2019 appellant filed a timely appeal from an August 8, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards 

assigned Docket No. 20-0180.2

On June 10, 2019 OWCP informed appellant that federal regulations required her to 

execute an affidavit regarding any earnings received or employment performed during the previous 

15 months and that an EN1032 form was enclosed for that purpose. It advised that she had to 

completely answer all questions on the form and that her benefits would be suspended pursuant to 

1 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id. 

2 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light 

of the Board’s disposition of this case, oral argument is denied.
2

20 C.F.R. § 10.528 if a completed form was not received by OWCP within 30 days. OWCP mailed 

the letter to appellant’s last known address of record. No response was received.

On July 1, 2019 OWCP received its June 10, 2019 letter, returned by the U.S. Postal 

Service as undeliverable and unable to forward.

By decision dated August 8, 2019, OWCP suspended appellant’s wage-loss compensation, 

effective August 18, 2019, for failing to submit the EN1032 form as requested. It advised that, if 

she completed and returned an enclosed copy of the EN1032 form, it would restore her wage -loss 

compensation retroactive to the date of suspension.

Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled 

employee to report his or her earnings from employment or self-employment, by affidavit or 

otherwise, in the manner and at the times the Secretary specifies.3

Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt 

of compensation benefits must complete an affidavit as to any work or activity indicating an ability 

to work which the employee has performed for the prior 15 months. 4 If an employee who is 

required to file such a report fails to do so within 30 days of the date of the request, his or her right 

to compensation for wage loss is suspended until OWCP receives the requested report. At that 

time, OWCP will reinstate compensation retroactive to the date of suspension if the employee 

remains entitled to compensation.5

The mailbox rule provides that proper and timely mailing of a document in the ordinary 

course of business raises a rebuttable presumption of receipt by the addressee. 6 As a rebuttable 

presumption, receipt will not be presumed, however, when there is evidence of nondelivery, and 

the presumption may also be rebutted by other evidence that supports that the addressee did not 

receive the correspondence.7

The record in this case contains direct evidence of nondelivery of the June 10, 2019 letter 

and accompanying EN1032 form. Although properly addressed to appellant at her address of 

record, the U.S. Postal Service returned the letter to OWCP as undeliverable and unable to forward. 

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also R.B., Docket No. 20-0176 (issued June25, 2020);A.H.,Docket No. 15-0241 (issued 

April 3, 2015).

5

Id. See also J.M., Docket No. 20-1310 (issued April21, 2021);P.M.,Docket No. 16-0382 (issued May 19, 2016).

6

S.B., Docket No. 19-0337 (issued February 19, 2020); L.C., Docket No. 19-0320 (issued July 26, 2019); C.Y., 

Docket No. 18-0263 (issued September 14, 2018); KennethE. Harris, 54 ECAB 502, 505 (2003).

7

Id.
3

OWCP received the returned envelope on July 1, 2019. Consequently, appellant has rebutted the 

presumption of receipt of the June 10, 2019 letter and EN1032 form under the mailbox rule.8

As appellant did not receive the June 10, 2019 letter, the Board finds that OWCP 

improperly issued its suspension decision.9 Accordingly,

IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of 

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

consistent with this order of the Board.

Issued: December 14, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

8

See M.U., Docket No. 09-0526 (issued September 14, 2009) (the Board found that presumption of receipt of a 

notice of an oral hearing was rebutted when the envelope enclosing the notice of an oral hearing was returned and 

marked return to sender and remanded the case for reissuance of the notice of an oral hearing).

9 V.R., Docket No. 18-1117 (issued June 20, 2019).