United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
Tampa, FL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 18-1079
Issued: January 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 1, 2018 appellant filed a timely appeal from a March 15, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1
After filing the current appeal, appellant also requested an oral hearing before a representative of OWCP’s Branch
of Hearings and Review. By decision dated July 17, 2018, OWCP’s hearing representative denied appellant’s June 13,
2018 request as untimely filed. It also denied a discretionary hearing noting that appellant could instead request
reconsideration of OWCP’s March 15, 2018 decision. The Board and OWCP may not exercise simultaneous
jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R. § 501.2(c)(3). Following the docketing of an appeal
before the Board, OWCP does not retain jurisdiction to render a further decision regarding the issue(s) on appeal until
after the Board relinquishes jurisdiction. Id. Thus, the July 17, 2018 OWCP decision denying appellant’s request for
an oral hearing is null and void. See id.; Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB
880 (1990).

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish a left ankle sprain
in the performance of duty on November 22, 2017, as alleged.
FACTUAL HISTORY
On November 22, 2017 appellant, then a 26-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that she was injured earlier that day. Although the Form CA1 did not describe either the cause or nature of the injury, a “CA 1 Addendum” that accompanied
the claim indicated that appellant was injured “when exiting vehicle.” Appellant “twisted [her]
left foot [and] fell.” She claimed to have sprained her left foot.
On November 22, 2017 the employing establishment issued an authorization for
examination and/or treatment, Form CA-16. The Form CA-16 noted that on November 22, 2017
appellant sprained her left ankle “stepping.” That same day appellant received treatment at
St. Joseph’s Hospital emergency department. Dr. Timothy Holt, Board-certified in emergency
medicine, prescribed a painkiller and provided instructions on walking with a crutch and using a
boot. He advised that appellant could return to work without restrictions on November 27, 2017
and gave her discharge instructions for ankle sprain and lower extremity contusion. A
November 22, 2017 left ankle x-ray revealed no acute findings.
In a report dated November 30, 2017, Dr. Roberto Rolon, a family practitioner, examined
appellant for complaints of left ankle pain. Appellant told Dr. Rolon that she had fallen eight days
prior, while at work, and had not returned since the incident. On examination Dr. Rolon observed
an abnormal range of motion, swelling, and tenderness in the left ankle. He noted that x-rays were
negative for a fracture. Dr. Rolon diagnosed a sprain of an unspecified ligament of the left ankle
and recommended rest and icing the affected area. In a medical treatment/status reporting form of
the same date, he diagnosed a left ankle sprain and noted that she could return to work so long as
she was on seated duty only. Dr. Rolon checked a box indicating that the alleged injury for which
treatment was sought was work related.
In a follow-up report dated December 7, 2017, Dr. Rolon examined appellant and noted
normal range of motion of the left foot and ankle, as well as mild lateral swelling and lateral
tenderness of the left ankle. He continued to recommend rest and icing the affected area. In a
medical treatment/status reporting form of the same date, Dr. Rolon noted that appellant could
return to work with restrictions of walking no more than 30 minutes per hour and no lifting,
2

5 U.S.C. § 8101 et seq.

3

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

pushing, or pulling greater than or equal to 25 pounds. He noted that appellant required physical
therapy as soon as possible.
In a follow-up report dated December 14, 2017, Dr. Rolon examined appellant and noted
normal range of motion and no swelling in the left ankle, along with tenderness. Appellant told
Dr. Rolon that the pain was much improved, but that she had not yet returned to work.
On December 21, 2017 Dr. Rolon referred appellant to physical therapy, listing a diagnosis
of a left ankle ligament sprain.
In a medical treatment/status reporting form dated December 21, 2017, Dr. Rolon noted
that appellant could return to work with restrictions of no lifting, pushing, or pulling of greater
than or equal to 30 pounds.
OWCP also received physical therapy treatment records covering the period December 21,
2017 through January 10, 2018. The December 21, 2017 initial evaluation noted that appellant
reported having sustained a work-related left ankle injury on November 22, 2017. Appellant
indicated that she initially fell down some steps and injured her right leg, but continued to work.
She further indicated that about 10 minutes later she was stepping out of a truck and rolled her left
ankle.
In a development letter dated February 5, 2018, OWCP informed appellant that she had
not submitted sufficient evidence to establish her claim. First, it noted that she had not submitted
sufficient evidence to establish that she actually experienced an incident alleged to have caused
injury, as there was no incident identified on her Form CA-1. OWCP also explained that appellant
had not provided a physician’s opinion as to how her unidentified injury resulted in a diagnosed
condition. It afforded her at least 30 days to submit the requested information and to respond to
OWCP’s inquiries.
By decision dated March 15, 2018, OWCP denied appellant’s claim. It found that she had
not submitted the necessary factual evidence to establish that the November 22, 2017 incident
occurred as described.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury5 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

4

Supra note 2.

5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).

3

to the employment injury.6 These are the essential elements of every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged.8 Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.9 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.10
An employee has the burden of establishing the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence.11 An injury does not have to be confirmed by eyewitnesses to establish that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.12 It is
well established that a claimant cannot establish fact of injury if there are inconsistencies in the
evidence that cast serious doubt as to whether the specific event or incident occurred at the time,
place, and in the manner alleged.13 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an
employee’s statements in determining whether a prima facie case has been established.14
However, an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive evidence.15

6

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

7

Michael E. Smith, 50 ECAB 313 (1999).

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

John J. Carlone, 41 ECAB 354 (1989).

10

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

12

Charles B. Ward, 38 ECAB 667, 67-71 (1987).

13

Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB 988 (1992).

14

Robert A. Gregory, 40 ECAB 478, 483 (1989).

15

D.B., 58 ECAB 464, 466-67 (2007).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left ankle
sprain in the performance of duty on November 22, 2017, as alleged.
Appellant has not provided a sufficient description of the time, place, and manner of her
alleged left ankle injury.16 On an addendum to her Form CA-1 she alleged an injury “when exiting
vehicle, twist left foot and fell” on November 22, 2017. In a report dated November 30, 2017,
appellant informed Dr. Rolon that she had fallen, but provided no additional details of the alleged
incident. In a physical therapy note dated December 21, 2017, at her initial evaluation, she noted
that she had fallen down steps at work and injured her right leg and subsequently injured her left
leg exiting her vehicle. There are no specific details regarding how the alleged injury occurred.17
The Board finds that appellant’s description of the alleged traumatic incident is imprecise and
vague and fails to provide specific details or evidence establishing that an incident occurred as
alleged.18 The information provided is insufficient to establish that an alleged injury occurred in
the performance of duty.
In a development letter dated February 5, 2018, OWCP informed appellant that the
evidence submitted was insufficient to establish her claim. She was asked to respond to its factual
development questionnaire and provide a detailed description of the alleged employment incident
that she believed caused her injury. OWCP afforded appellant 30 days to submit this additional
evidence. Appellant did not respond prior to the issuance of the March 15, 2018 OWCP decision.
As such, the Board finds that she has not established that the November 22, 2017 incident occurred
in the performance of duty, as alleged. Consequently, it is unnecessary to address the medical
evidence of record.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.20

16

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

17

S.A., Docket No. 18-0508 (issued July 10, 2018).

18

See C.M., Docket No. 17-0627 (issued June 28, 2017); C.E., Docket No. 17-0106 (issued April 20, 2017).

19

See M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2005).

20

On November 22, 2017 the employing establishment issued a Form CA-16, authorization for examination and/or
treatment. When the employing establishment properly executes a Form CA-16 which authorizes medical treatment
as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from
the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB
608, 610 (2003).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left ankle
injury in the performance of duty on November 22, 2017, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
Anniston, AL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-1402
Issued: September 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On June 12, 2015 appellant filed a timely appeal from a May 19, 2015 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 appellant received a $7,688.57 overpayment of
compensation; (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment; and (3) whether OWCP properly required repayment of the overpayment by
deducting $75.00 from appellant’s compensation payments every 28 days.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on June 19, 1985 appellant, then a 37-year-old mechanic, sustained
injury due to picking up a starter from the bottom of a container. Appellant’s claim was accepted
for low back strain, aggravation of degenerative disc disease, bulging disc at L5-S1, subdural
empyema (resulting from an epidural injection), meningitis, and chronic headaches. She stopped
work following the injury and returned to work intermittently. Appellant stopped work again on
December 20, 1993 and received ongoing total disability compensation benefits.
In a July 17, 2013 letter to OWCP, Jeffrey Karl, an injury compensation official for the
employing establishment stated:
“This is in regard to the injury compensation claim shown above, and the
potential for a FERS [Federal Employees Retirement System] offset in this case.
The above-referenced claimant is now 66 years of age. Any Social Security
Benefits that she may now be receiving is [sic] considered as being retirement
benefits by the Social Security Administration (SSA).
“If that is the case, since this claimant is a FERS employee, her compensation
payments must be now be offset by any part of her SSA benefit that was
calculated by using her [f]ederal employment earnings, if SSA considers her to be
‘retired,’ rather than ‘disabled,’ under the SSA program.
“Please send off a SSA FERS Questionnaire to SSA to inquire as to the claimant’s
status, and if the claimant is considered to be ‘retired,’ what the offset should be.”
In a July 15, 2014 letter to OWCP, Mr. Karl noted that appellant was now 67 years of age
and that any SSA benefits that she is now receiving were considered as being retirement benefits
by the SSA. He stated:
“Since this claimant is a FERS employee, her compensation payments must be
now be offset by any part of her SSA benefit that was calculated by using her
[f]ederal employment earnings.
“Please send off a SSA FERS Questionnaire to SSA to inquire as to what the
Offset should be.”
In August 2014 OWCP received information from the SSA advising of the offset
amounts for FERS dual benefits beginning in June 2013. Effective August 24, 2014, it reduced
appellant’s ongoing disability compensation benefits based on the amount of her social security
benefits which were attributable to her federal service.
In an August 27, 2014 letter, OWCP advised appellant of its preliminary determination
that she received a $7,688.57 overpayment of compensation for the period June 1, 2013 to
August 23, 2014 because she received prohibited dual benefits in the form wage-loss

2

compensation under FECA and benefits under SSA without an appropriate offset being made.2
It also made a preliminary determination that appellant was not at fault in the creation of the
overpayment. OWCP advised appellant that she could submit evidence challenging the fact,
amount, or finding of fault and request waiver of the overpayment. It informed appellant that she
could submit additional evidence in writing or at pre-recoupment hearing, but that a prerecoupment hearing must be requested within 30 days of the date of the written notice of
overpayment. OWCP requested that appellant complete and return an enclosed financial
information questionnaire (Form OWCP-20) within 30 days even if she was not requesting
waiver of the overpayment.
Appellant submitted a completed Form OWCP-20 on September 13, 2014 in which she
indicated that her monthly income was $2,502.99 (comprised of FECA and SSA benefits), that
her monthly expenses were $2,780.00,3 and that her assets were $4,234.64 (comprised of
checking and saving account balances). She argued that she was not at fault in the creation of
the overpayment and requested waiver of recovery of the overpayment.
Appellant requested a telephonic pre-recoupment hearing with an OWCP hearing
representative on the issues of fact, amount, fault, and possible waiver of the overpayment.
During the hearing held on April 8, 2015, the hearing representative explained to appellant that
she would have to submit financial documentation on monthly income and monthly ordinary and
necessary expenses to support waiver of recovery of the overpayment. Appellant testified that
she spent more than she made and that she took in her grandchildren in October 2013, a
circumstance which increased her food and utility expenses.
After the hearing, appellant submitted a letter dated April 20, 2015 referencing attached
documents which included a bank statement, three credit card statements, and a handwritten
statement of her reported expenses. She also stated that her daughter and two grandchildren had
lived with her temporarily but that now only her two grandchildren resided with her for an
indefinite period of time. The bank statement reflected various payments including cash
withdrawals and payment of various expenses, such as multiple Super Walmart purchases. The
bank statement also had deductions for a cable bill, food purchases, and several utilities. The
minimum monthly payments required on the three credit card statements totaled $488.00.
Appellant also provided a list of expenses for utilities ($711.02), insurance ($465.56), food
($267.04), car gas ($99.25), overdraft safety ($32.00), unspecified household items ($105.00),
car repair ($252.17), home equity loan ($125.00), recreation ($94.13), and church ($40.00).
By decision dated May 19, 2015, an OWCP hearing representative determined that
appellant received a $7,688.57 overpayment of compensation. The hearing representative found
that appellant was not at fault in the creation of the overpayment, but determined that the
overpayment was not subject to waiver of recovery because appellant had not submitted
sufficient financial documentation to support such waiver. It was noted that appellant asserted
2

OWCP provided calculations based on SSA documentation that revealed that $7,688.57 had not been offset for
the period June 1, 2013 to August 23, 2014.
3

Appellant listed claimed monthly expenses of $330.00 for rent/mortgage, $250.00 for food, $75.00 for clothing,
$608.00 for food, $917.00 for miscellaneous expenses, and $600.00 for credit card debt.

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that she had various monthly expenses which exceeded her monthly income, but that the bank
statement and credit card bills submitted did not support her claimed monthly expenses. The
hearing representative required repayment of the overpayment by deducting $75.00 from
appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits that are attributable to federal service and that, if an employee receives SSA
benefits based on federal service, his or her compensation benefits shall be reduced by the
amount of SSA benefits attributable to his or her federal service.4
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.5 The
offset of FECA benefits by SSA benefits attributable to employment under the Federal
Employees Retirement System (FERS) is calculated as follows: where a claimant has received
SSA benefits, OWCP will obtain information from SSA on the amount of the claimant’s benefits
beginning with the date of eligibility to FECA benefits. SSA will provide the actual amount of
SSA benefits received by the claimant/beneficiary. SSA will also provide a hypothetical SSA
benefit computed without the FERS covered earnings. OWCP will then deduct the hypothetical
benefit from the actual benefit to determine the amount of benefits which are attributable to
federal service and that amount will be deducted from FECA benefits to obtain the amount of
compensation payable.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $7,688.57 overpayment of compensation
because she received prohibited dual benefits in that amount for the period June 1, 2013 to
August 23, 2014. Appellant received both wage-loss compensation under FECA and benefits
under SSA for the period June 1, 2013 to August 23, 2014. As previously stated, the portion of
the SSA benefits appellant received as a federal employee as part of her FERS retirement
package concurrently with the benefits he or she received under FECA is a prohibited dual
benefit.7 OWCP requested and SSA provided information regarding appellant’s applicable SSA
rates and their effective dates. Based on these rates, it determined that the prohibited dual
benefits appellant received from June 1, 2013 to August 23, 2014 created an overpayment of
compensation in the amount of $7,688.57. The Board has reviewed OWCP’s calculations of

4

5 U.S.C. § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a), (e) (February 1995).
OWCP does not require an election between FECA benefits and SSA benefits except when they are attributable to
the employee’s federal service. See R.C., Docket No. 09-2131 (issued April 2, 2010).
6

FECA Bulletin No. 97-09 (issued February 3, 1997); E.C., Docket No. 14-1743 (issued December 4, 2014).

7

See P.G., Docket No. 13-589 (issued July 9, 2013).

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benefits appellant received for the period June 1, 2013 to August 23, 2014 and finds that OWCP
properly determined that an overpayment in the amount of $7,688.57 was created.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.8 These statutory guidelines
are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”9 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.10 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.11 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.12
Section 10.438 of OWCP regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the FECA or be against equity and good conscience.
8

See Robert Atchison, 41 ECAB 83, 87 (1989).

9

5 U.S.C. § 8129(b).

10

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse
or dependent plus $960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-785 (issued
September 20, 2013).
11

20 C.F.R. § 10.437(a), (b).

12

Id. at § 10.437(b)(1).

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This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”13
ANALYSIS -- ISSUE 2
OWCP properly determined that appellant did not establish entitlement to waiver of
recovery of the $7,688.57 overpayment under the relevant standards. Appellant did not provide
sufficient financial information within the appropriate time period to show that she was entitled
to waiver of recovery of the overpayment.
As noted by OWCP hearing representative, appellant asserted that she had various
monthly expenses which exceeded her monthly income.14 The Board finds that OWCP properly
determined that appellant did not provide proof for all of her reported monthly expenses and/or
that they constituted ordinary and necessary living expenses. Appellant submitted a bank
statement which reflected various payments including cash withdraws and payment of various
expenses, such as multiple Super Walmart purchases. The bank statement also had deductions
for a cable bill, utilities, and food purchases. However, as noted by OWCP, this bank statement
by itself would not establish that specific expenses were required or indicate what the minimum
amount charged monthly would be for such expenses. Appellant provided credit card statements
indicating that she had monthly minimum credit card payments of $488.00. The Board notes,
however, the submission of these credit card statements, without supporting explanation and
documentation, does not establish that the credit card payments were for ordinary and necessary
monthly expenses. In an April 2015 statement, appellant claimed monthly expenses for utilities
($711.02), insurance ($465.56), food ($267.04), car gas ($99.25), overdraft safety ($32.00),
unspecified household items ($105.00), car repair ($252.17), and home equity loan ($125.00),
but she did not provide supporting documentation to clearly establish such expenses.15 She also
listed monthly expenses for recreation ($94.13) and church ($40.00), but she did not submit
evidence showing that these were ordinary and necessary monthly expenses.
For these reasons, appellant did not submit sufficient financial information to establish
that recovery of the overpayment would defeat the purpose of FECA. She has not shown both
that she needs substantially all of her current income to meet ordinary and necessary living
expenses and that her assets do not exceed the allowable resource base. As appellant has not
13

Id. at § 10.438.

14

Appellant had indicated that her monthly income was $2,502.99, comprised of FECA and SSA benefits.

15

On appeal appellant argues that the bank statement she submitted documented monthly expenses such as those
for utilities. However, as noted by OWCP, the bank statement would not, in and of itself, show that the deductions
were for expenses coming due on a monthly basis. In her Form OWCP-20, completed in September 2014, appellant
also claimed other monthly expenses, including $330.00 for rent/mortgage, $75.00 for clothing, and $917.00 for
unidentified miscellaneous expenses. She also failed to provide evidence documenting these claimed monthly
expenses.

6

shown that her current ordinary and necessary living expenses exceed her monthly income by
more than $50.00 she has not shown that she needs substantially all of her current income to
meet current ordinary and necessary living expenses.16 Because she has not met the first prong
of the two-prong test of whether recovery of the overpayment would defeat the purpose of
FECA, it is not necessary for OWCP to consider the second prong of the test, i.e., whether
appellant’s assets do not exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she
would experience severe financial hardship in attempting to repay the debt or that she
relinquished a valuable right or changed her position for the worse in reliance on the payment
which created the overpayment.17
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”18
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting $75.00
from appellant’s compensation payments every 28 days, OWCP took into consideration the
financial information submitted by appellant as well as the factors set forth in section 10.441 and
found that this method of recovery would minimize any resulting hardship on appellant.
Therefore, OWCP properly required repayment of the overpayment by deducting $75.00 from
appellant’s compensation payments every 28 days.

16

See supra note 10.

17

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

18

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

7

CONCLUSION
The Board finds that appellant received a $7,688.57 overpayment of compensation. The
Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of the
overpayment and that it properly required repayment of the overpayment by deducting $75.00
from appellant’s compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF EDUCATION, OFFICE
FOR CIVIL RIGHTS, Kansas City, MO,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-279
Issued: April 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 19, 2014 appellant timely appealed an October 17, 2014 nonmerit decision
and an August 15, 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 appellant sustained an injury in the performance of duty on
August 13, 2013; and (2) whether OWCP properly denied her September 23, 2014 request for
reconsideration, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 55-year-old equal opportunity specialist, filed a traumatic injury claim
(Form CA-1) for a lumbar condition she attributed to an August 13, 2013 employment-related
motor vehicle accident (MVA). She was a passenger in a government-owned vehicle that
backed into a two-foot pole after refueling at a gas station.2 The approximate speed at impact
was zero to five miles per hour. Appellant was in the back seat of the vehicle at the time. She
first sought treatment for her lower back complaints on August 20, 2013.
Dr. Michael D. Simanovsky, a family practitioner, examined appellant on August 20,
2013 for complaints of low back pain due to a car accident. He noted that she had been involved
in a MVA “a few days ago.”3 Appellant was a passenger sitting in the back seat while the car
was maneuvering through a gas station lot and hit a pole. Dr. Simanovsky noted complaints of
mild pain and discomfort in the lumbar area, and difficulty sleeping at night. On physical
examination, appellant was noted to be in no distress. Her vital signs were stable. Palpation of
appellant’s low back revealed it to be slightly tender. Dr. Simanovsky further noted that she had
good range of motion in the lumbar spine and lower extremities. However, twisting of the
lumbar spine elicited pain.
Appellant’s neurologic and vascular examinations were
unremarkable. Dr. Simanovsky also found a lumbar x-ray to be unremarkable.4 His assessment
was lumbar strain due to MVA. Under the heading “Impression & Recommendation,”
Dr. Simanovsky identified appellant’s problem as low back pain (ICD-9 724.2). He prescribed
pain medication (Lortab) and a muscle relaxant (Cyclobenzaprine Hcl), provided back care
instructions, and discussed the use of moist heat or ice, activity modification, and
stretching/strengthening exercises. Dr. Simanovsky advised appellant to return in two weeks if
there was no improvement or sooner if her symptoms worsened. Additionally, he prepared a
September 18, 2013 attending physician’s report (Form CA-20) based on his August 20, 2013
findings on examination. Dr. Simanovsky again diagnosed “low back pain” (ICD-9 724.2),
which he attributed to appellant’s work-related MVA. According to Dr. Simanovsky, appellant
was neither totally disabled nor partially disabled, and he did not expect there to be any
permanent effects as a result of her injury.
In an October 10, 2013 decision, OWCP found that the August 13, 2013 employment
incident occurred as alleged. However, the medical evidence failed to provide a diagnosis in
connection with the accepted event. Consequently, OWCP denied the claim because appellant
had not established fact of injury. It explained that pain was a symptom, not a medical diagnosis.

2

Appellant was returning to her office following a work-related trip to Fulton, MO.

3

Although the urgent care treatment notes did not identify the date of injury, Dr. Simanovsky also provided an
August 20, 2013 work excuse/disability form that indicated appellant was being treated for a back strain injury that
occurred on August 13, 2013 due to a MVA.
4

Dr. Matthew R. Caterine, a Board-certified diagnostic radiologist, reviewed the August 20, 2013 lumbar x-rays
and found “No acute abnormality.” He noted that the vertebral body heights, alignment, and disc spaces were
maintained. Dr. Caterine also reported that the pedicles and transverse processes were intact, and there was no
evidence of fracture or dislocation. Lastly, he noted that paraspinal soft tissues were unremarkable.

2

Appellant timely requested reconsideration. She submitted a November 19, 2013 report
from Dr. Ronald W. Stitt, a Board-certified orthopedic surgeon, who noted that appellant
reported having been in a work-related MVA on August 13, 2013. Dr. Stitt examined appellant
and reviewed her lumbar x-rays, which showed a normal lumbar spine. He diagnosed
musculoskeletal back pain.
By decision dated March 25, 2014, OWCP denied appellant’s request for reconsideration.
It considered Dr. Stitt’s November 19, 2013 report to be cumulative, noting that he reiterated
previous assessments of back pain. Consequently, OWCP found the newly submitted evidence
did not warrant reopening appellant’s claim for merit review.
On July 18, 2014 appellant requested reconsideration. She submitted a June 25, 2014
report from Dr. Tanya E. Feldkamp, a chiropractor, who diagnosed somatic dysfunction of the
lumbar and sacral regions, neuritis, and lumbago. Dr. Feldkamp reported that appellant had been
a passenger in a vehicle that backed into a concrete wall.
In an August 15, 2014 decision, OWCP reviewed the merits of appellant’s claim, but
denied modification. It found that Dr. Feldkamp’s June 25, 2014 report was of no probative
value because absent x-ray evidence of a subluxation, appellant’s chiropractor was not
considered a physician under FECA.
On September 23, 2014 appellant requested reconsideration.
She referenced a
September 15, 2014 report from an orthopedist who reportedly diagnosed lumbar sprain due to
the August 13, 2013 MVA. The September 23, 2014 request indicated that there was an
“Enclosure.” However, no additional evidence was noted to have been received by OWCP on or
about September 26, 2014.
By decision dated October 17, 2014, OWCP denied appellant’s latest request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

3

personal injury.7 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.8
ANALYSIS -- ISSUE 1
Appellant claims to have injured her lower back in an employment-related MVA. OWCP
accepted that the August 13, 2013 MVA occurred as alleged. However, appellant’s claim has
repeatedly been denied because the evidence of record was deemed insufficient to establish a
medical diagnosis in connection with the accepted August 13, 2013 employment incident.
Dr. Simanovsky was the first physician to treat appellant for her low back complaints.
He examined her on August 20, 2013 and diagnosed low back pain (ICD-9 724.2/Lumbago)
attributable to the August 13, 2013 MVA. Dr. Simanovsky provided the same diagnosis in his
September 18, 2013 attending physician’s report (Form CA-20). Dr. Stitt similarly diagnosed
musculoskeletal back pain when he examined appellant on November 19, 2013. OWCP properly
noted that back pain is a symptom, not a medical diagnosis. Subjective complaints of pain are
not sufficient, in and of themselves, to support compensation benefits under FECA.9
OWCP also correctly found that Dr. Feldkamp’s June 25, 2014 report was not probative.
Appellant’s chiropractor diagnosed somatic dysfunction of the lumbar and sacral regions (ICD-9
739.3, 739.4), neuritis (ICD-9 724.4), and lumbago (ICD-9 724.2). Although Dr. Feldkamp
noted subluxations at L4 and L5, she did not reference any x-rays in her June 25, 2014 report.
Moreover, Dr. Caterine, a radiologist, did not identify any subluxations on appellant’s
August 20, 2013 lumbar x-rays.10 Because Dr. Feldkamp’s diagnoses were not based on x-ray
evidence of subluxation, her opinion is insufficient for purposes of establishing entitlement to
FECA benefits.11
The Board finds that the evidence of record does not establish a medical diagnosis in
connection with appellant’s August 13, 2013 MVA. Consequently, appellant failed to establish
fact of injury.
7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition, and appellant’s specific employment factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

20 C.F.R. § 10.501(a)(3).

10

See supra note 4.

11

Under FECA the term “physician” includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray. 5 U.S.C. § 8101(2); see Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.12 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.13 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.14 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (1) shows that OWCP erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not
previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.15 When a timely application for reconsideration does not meet
at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
OWCP received appellant’s latest request for reconsideration on September 26, 2014.
Appellant submitted the appeal request form that accompanied its August 15, 2014 merit
decision. She also provided a September 23, 2014 letter explaining, inter alia, that she was
seeking reimbursement for her past chiropractic care, including restoration of her sick leave. The
September 23, 2014 request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, appellant did not
advance any relevant legal arguments not previously considered by OWCP. The Board finds
that she is not entitled to a review of the merits based on the first and second requirements under
section 10.606(b)(2).17
Appellant also failed to submit any “relevant and pertinent new evidence” with her
September 23, 2014 request for reconsideration.
She mentioned she had enclosed a
September 15, 2014 diagnosis from an orthopedist, but the record does not include such a report.
Because appellant did not provide any “relevant and pertinent new evidence,” she is not entitled

12

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.607.

14

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation
System. See also Chapter 2.1602.4b.
15

Id. at § 10.606(b)(2).

16

Id. at §§ 10.607(b), 10.608(b).

17

Id. at § 10.606(b)(2)(1) and (2).

5

to a review of the merits based on the third requirement under section 10.606(b)(2).18
Accordingly, OWCP properly declined to reopen her case under 5 U.S.C. § 8128(a).
CONCLUSION
Appellant failed to establish that she sustained an injury in the performance of duty on
August 13, 2013. The Board also finds that OWCP properly denied further merit review with
respect to appellant’s September 23, 2014 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 17 and August 15, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 2, 2015
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

18

Id. at § 10.606(b)(2)(3).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Tucson, AZ,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-1415
Issued: October 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 16, 2015 appellant filed a timely appeal of a December 22, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on November 7, 2013.
FACTUAL HISTORY
On November 25, 2013 appellant then a 52-year-old park ranger, filed a Form CA-1,
traumatic injury claim, alleging that on November 7, 2013 he was in training and performing a
1

5 U.S.C. §§ 8101-8193.

three-mile fast walk with a 45-pound pack when he experienced pain in the right heel. He
advised that he had pain when walking “at speed” or in bare feet. Appellant did not stop work.
Appellant submitted a referral for physical therapy from Dr. Stephanie Price, a family
practitioner, dated December 19, 2013. Dr. Price noted appellant’s treatment for right plantar
fasciitis and a heel spur and recommended physical therapy to decrease pain. Appellant also
submitted physical therapy reports from December 19, 2013 to January 17, 2014, where he was
treated for plantar fasciitis. The therapist noted that appellant reported training for a work test
which required walking three miles in 45 minutes with a 45-pound pack in October and in
November he noticed significant pain in his foot. The therapist noted a date of onset of
November 2012 as a result of training and walking.
By letter dated February 13, 2014, OWCP advised appellant of the type of evidence
needed to establish his claim, particularly requesting that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific employment factors.
In a March 12, 2014 report, Dr. Robert Lane Tassin, a Board-certified internist, noted that
appellant presented with constant pain in the right leg. Appellant reported that the condition was
the result of an injury “which was not work related” and the onset was associated with prolonged
standing/walking. Dr. Tassin further reported that in October 2013 appellant was training for a
“pack test” and developed right foot pain. He diagnosed pain in the joint, ankle and foot,
fasciitis, and a heel spur. Dr. Tassin noted that appellant could not be on his feet for prolonged
periods or walk more than one mile a day until he was seen by an orthopedist. He stated that
appellant’s current complaints began while training for a “pack test” in October 2013.
Dr. Tassin noted that an x-ray showed a heel spur. He recommended weight reduction, use of
orthotics, and to seek treatment with an orthopedist or podiatrist. Dr. Tassin noted that appellant
was fit for duty. Appellant also submitted additional physical therapy reports.
OWCP received an October 2, 2013 letter of expectation from the employing
establishment informing appellant that he had a reasonable time period to pass the red card pack
test as required by his position description. The employing establishment noted that appellant
had not passed the test in two years. It provided him until December 31, 2013 to pass the test
and stated that he should contact the employing establishment if he did not believe he could
safely accomplish this task.
In a decision dated March 20, 2014, OWCP denied appellant’s claim for compensation,
finding that the medical evidence was insufficient to establish that he sustained an injury or
medical condition causally related to the accepted work events of November 7, 2013.
On April 2, 2014 appellant requested an oral hearing before an OWCP hearing
representative which was held on October 9, 2014. In an undated statement, he noted that the
employing establishment required that he complete the pack test by December 31, 2013.
Appellant noted beginning training for the pack test more intensely given the short amount of
time left to prepare and he began to have foot pain which became severe while on a pack test
workout on November 7, 2013. He believed the pain would ease up with ice and ibuprofen but
his condition persisted and he filed a traumatic injury claim. Appellant was treated on
December 19, 2013 and was diagnosed with plantar fasciitis and referred for physical therapy.

2

He noted that physical therapy helped reduce the pain and he stopped physical therapy when his
claim was denied by OWCP. Appellant submitted a description of the “pack test” work capacity
testing for wild land firefighters.
Appellant submitted a December 19, 2013 report from a nurse practitioner who treated
him for constant right foot pain since November 7, 2013. He reported his foot pain was not the
result of an injury. The nurse practitioner noted that appellant complained of right heel pain over
the past three weeks since training for his work physical which required carrying a heavy pack
and prolonged hiking. She noted x-rays revealed calcaneus, no fractures or avulsions, no soft
tissue swelling, a heel spur and bone abnormality. The nurse practitioner diagnosed plantar
fasciitis and noted appellant was fit for duty without restrictions.
In a decision dated December 22, 2014, an OWCP hearing representative affirmed the
March 20, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4
ANALYSIS
It is not disputed that on November 7, 2013 appellant was performing a three-mile fast
walk with a 45-pound pack while in the performance of duty. It is also not disputed that
2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

appellant was diagnosed with plantar fasciitis and a heel spur. However, appellant has not
submitted sufficient medical evidence to establish that his diagnosed conditions were caused or
aggravated by this incident.
On February 13, 2014 OWCP advised appellant of the type of medical evidence needed
to establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated his
claimed condition.
Appellant submitted a March 12, 2014 report of Dr. Tassin who noted that appellant
presented with constant pain in the right leg. He reported the condition was the result of an
injury which was not work related and the onset was associated with prolonged standing and
walking. Appellant further related that in October 2013 he was training for a “pack test” and
developed right foot pain. Dr. Tassin diagnosed fasciitis and a heel spur. His report is
insufficient to establish the claim as the physician did not provide an accurate history of injury.5
Dr. Tassin noted appellant’s right leg pain began while training for the pack test in October 2013.
Appellant experienced pain in the foot, joint, and ankle and had fasciitis. This history is
inconsistent with the history provided by appellant who noted that on November 7, 2013 he was
performing a three-mile fast walk with a 45-pound pack and experienced pain in the heel.
Furthermore, Dr. Tassin’s report is contradictory in that it relates that appellant stated that the
injury was not work related but the same report states that the foot pain began while appellant
trained for a pack test that was part of his employment. Dr. Tassin did not explain this
discrepancy nor did he provide any medical reasoning explaining how a particular work activity
on a particular date caused or contributed to a diagnosed medical condition.
Appellant also provided evidence from a nurse practitioner and physical therapists.
However, the Board has held that treatment notes signed by a nurse or a physical therapist are
not considered probative medical evidence as these providers are not a physician under FECA.6
Consequently, the medical evidence is not sufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.7 Appellant failed to submit such evidence, and has thus
failed to meet his burden of proof.
5

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
6

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical therapists are not
competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a “physician” as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law).
7

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

On appeal appellant asserts that OWCP had improperly denied his claim and believed he
submitted sufficient evidence to establish that on November 7, 2013 he sustained plantar fasciitis
and a heel spur. As noted above, the medical evidence does not establish that his diagnosed
conditions were causally related to his employment. Appellant has not submitted a physician’s
report, based on an accurate history, which describes how work activities on November 7, 2013
caused or aggravated a diagnosed right leg condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on November 7, 2013.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOMA LINDA HEALTH CARE SYSTEM,
Loma Linda, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1167
Issued: September 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 8, 2017 appellant filed a timely appeal from a February 24, 2017 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 in this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a wrist injury on
December 13, 2016 in the performance of duty.
FACTUAL HISTORY
On January 17, 2017 appellant, then a 34-year-old health technician, filed a traumatic
injury claim (Form CA-1), alleging that on December 13, 2016, while rolling a metal shower cart
1

5 U.S.C. § 8101 et seq.

around a corner, he twisted his wrist when the drawers slid out and the cart fell forward. He
indicated that he heard a popping sound and his wrist swelled. Appellant did not stop work. The
employing establishment advised that it received notice of the claimed injury on
January 12, 2017.
Appellant submitted an employing establishment report of employee’s emergency
treatment dated December 16, 2016, prepared by a healthcare provider with an illegible
signature, who noted that appellant was treated for a work-related injury. The healthcare
provider noted that appellant was unable to push, pull, climb ladders or stairs, and bear weight
with the right hand. Appellant was instructed to wear a thumb splint until follow up with
workers’ compensation. He was provided with discharge instructions and prescribed Arnicare
gel.
In a letter dated January 24, 2017, OWCP advised appellant of the type of evidence
needed to establish his claim, particularly requesting a detailed description of how his claimed
injury occurred as well as a physician’s reasoned opinion addressing the relationship of his
claimed condition to the specific employment factors. It requested that appellant respond to an
attached factual development questionnaire describing how his claimed injury occurred. No
response was received.
On February 1, 2017 the employing establishment offered appellant a light-duty
assignment, effective February 1, 2017, based on a medical report from a nurse practitioner who
noted a date of injury of December 13, 2016. On February 7, 2017 appellant accepted the job
offer.
In a February 24, 2017 decision, OWCP denied appellant’s claim as the evidence of
record did not support that the injury or events occurred as alleged. It indicated that he had
failed to respond to the January 24, 2017 development letter, which sought to clarify the specific
factual elements of his claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
2

Id.

3

Gary J. Watling, 52 ECAB 357 (2001).

2

submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.4
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.6
ANALYSIS
In the present case, appellant, a health technician, filed a claim for traumatic injury (Form
CA-1) on January 17, 2017, alleging that on December 13, 2016, while rolling a metal shower
cart around a corner, he injured his wrist when the drawers slid out and the cart fell forward. He
indicated that he heard a popping sound and his wrist swelled. The Board finds that the evidence
of record is insufficient to establish that the claimed employment incident occurred as alleged.
On January 24, 2017 OWCP requested that appellant describe in detail how the claimed
injury occurred. Appellant did not respond to this letter. The record does not contain a
sufficiently detailed description of how his injury occurred. Appellant has also failed to identify
which wrist was injured in the alleged December 13, 2016 incident. Additionally, he did not
seek medical treatment for three days and waited a month to report the injury to his supervisor
and file a claim.
Similarly, the December 16, 2016 report of employee’s emergency treatment does not
describe how any claimed injury occurred. A healthcare provider with an illegible signature
noted that appellant was treated for a work-related injury, but that healthcare provider failed to
provide a history of any incident giving rise to the claimed injury, including the date of the
alleged work injury.
While an injury does not have to be confirmed by eyewitnesses in order to establish that
an employee sustained an injury in the performance of duty, the employee’s statement must be
consistent with the surrounding facts and circumstances and his subsequent course of action.
Appellant alleged the incident occurred on December 13, 2016, but he did not file a claim until
January 17, 2017. He did not respond to OWCP’s request for detailed information about how the
4

T.H., 59 ECAB 388 (2008).

5

R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

6

Betty J. Smith, 54 ECAB 174 (2002).

3

work incident occurred7 and he did not provide a clarifying explanation as to why he waited over
a month to file a claim after the alleged injury.8
For these reasons, the Board finds that appellant has failed to meet his burden of proof to
establish that the claimed traumatic injury occurred as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a wrist injury
on December 13, 2016 in the performance of duty.

7

See E.R., Docket No. 17-0742 (issued June 26, 2017) (OWCP notified appellant of the additional factual
evidence needed to support that the claimed incident occurred as alleged; as he did not submit such evidence,
appellant has failed to meet his burden of proof).
8

See supra note 6; J.B., Docket No. 14-1421 (issued November 14, 2014) (notification of injury, if otherwise
unexplained, may cast doubt on an employee’s statement that an injury occurred as alleged).

4

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE AIR FORCE,
PETERSON AIR FORCE BASE, CO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 15-1102
Issued: January 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On April 17, 2015 appellant filed a timely appeal from a November 17, 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 determined the amount of an overpayment
of compensation based on an incorrect pay rate was $109,282.04; (2) whether OWCP properly
found an overpayment of $24,396.80 for life insurance premium deductions; (3) whether OWCP
properly denied waiver of the overpayments; and (4) whether OWCP properly determined the
recovery of the overpayment from continuing compensation.
FACTUAL HISTORY
The case was before the Board on a prior appeal. The case involves two overpayments of
compensation. OWCP found that there was an overpayment of $170,917.82 from April 14, 2003
1

5 U.S.C. § 8101 et seq.

to December 18, 2010 due to compensation paid based on an incorrect pay rate.2 It had used an
annual pay rate of $87,289.00, for a General Services (GS), Step 10 full-time employee as of
January 2003. The Board found that the correct pay rate under 5 U.S.C. § 8114 was for 32 hours
per week at a fixed rate of pay.3 The record indicated that as of January 2003 appellant was a
part-time employee working 32 hours per week. Under 5 U.S.C. § 8114(d)(1)(A), if an
employee worked in the employment in which he was employed at the time of injury for
substantially the whole year preceding the injury, and the rate of pay is fixed, the average annual
earnings are the annual rate of pay. Since appellant was erroneously paid compensation from
April 14, 2003 to December 18, 2010 based on the pay rate for a full-time employee, an
overpayment of compensation was created. As to the amount of the overpayment, however, the
Board found that OWCP had failed to properly explain how the amount was calculated. The
case was remanded for proper findings as to the amount of the overpayment.
OWCP found an additional overpayment of $15,024.67 was created based on the failure
to properly deduct postretirement basic life insurance (PRBLI) premiums. The documentation in
the record indicated that as of June 26, 2003 appellant was responsible for PRBLI deductions.4
The Board affirmed a finding that the PRBLI premiums had not been properly deducted from
appellant’s compensation, but with respect to the amount, OWCP again had failed to provide
proper findings and the case was remanded to OWCP.
The Board addressed the issue of waiver, noting that the evidence of record did not
establish that recovery would defeat the purpose of FECA or be against equity and good
conscience. The Board found that on March 14, 2011 appellant had submitted financial
information, including an OWCP-20 form in which he reported $10,382.10 in monthly income
and $9,093.82 in expenses. As to assets, appellant reported $16,902.39 in checking and savings
bank accounts. Based upon this financial information, the Board also affirmed recovery of the
overpayment by deducting $1,500.00 from continuing compensation.
Appellant filed a petition for reconsideration of the Board’s decision. In an order dated
July 21, 2014, the Board found that there was no error with respect to the Board’s analysis of the
pay rate issue.5 The Board found that appellant’s argument that the definition of “year” and
“substantially the whole year” should be based on the number of hours worked, was not
supported by FECA or Board precedent. The Board modified the prior decision to reflect that
the case was not in posture for decision with respect to amount of overpayment, denial of waiver,
and recovery.

2

OWCP accepted bilateral carpal tunnel syndrome and appellant stopped working on April 14, 2003. The facts
of the case, as outlined in the prior decision are hereby incorporated by reference.
3

Docket No. 12-1408 (issued April 26, 2013).

4

The record contains the Office of Personnel Management Form SF 2818 electing the no reduction option for
postretirement life insurance coverage signed by appellant on February 3, 2003.
5

Docket No. 12-1408 (issued July 21, 2014).

2

The record indicates that appellant continued to submit statements arguing that his pay
rate should not be determined under 5 U.S.C. § 8114(d)(1)(A). Appellant again argued that he
did not feel he worked for substantially the whole year since he worked 32 hours per week.
By decision dated November 4, 2014, OWCP found that the overpayment based on an
incorrect pay rate was $109,282.04. It stated that its original calculations as to the amount were
erroneous, and provided new calculations.6 According to OWCP, appellant had been paid
$546,248.85 in gross compensation from April 14, 2003 to December 18, 2010. Based on a 32hour per week pay rate of $1,343.06, he was entitled to $436,966.81, creating an overpayment of
$109,282.04. As to deductions for life insurance, OWCP found that the overpayment was
$13,764.00.7 It found that $13,942.20 should have been deducted for PRBLI, but only $178.20
had been deducted. In addition, OWCP reviewed the waiver issue and found that, based on the
financial information submitted in 2011, appellant was not entitled to waiver. It found periodic
deductions of $1,384.62 would continue from his continuing compensation.
On November 7, 2014 OWCP received information from the Office of Personnel
Management (OPM) regarding the final base salary for the Federal Employees’ Group Life
Insurance (FEGLI) coverage. OPM indicated that the final base salary was $87,289.00
On November 17, 2014 OWCP issued a decision modifying the November 4, 2014
decision with respect to the overpayment amount resulting from life insurance deductions. It
noted that it had received new information from OPM, and that the prior calculations had been
based on a base salary of $69,831.00. OWCP stated that the “final salary” was $87,289.00 on
which to base calculations for life insurance deductions. For the period April 14, 2003 to
December 18, 2010, it deducted $2,349.00 for BLI premiums, $29,269.10 for OLI premiums,
and $178.20 for PRBLI premiums. According to OWCP, they should have deducted $0 for BLI,
$29,484.95 for OLI, and $17,427.75 for PRBLI. Noting that appellant had been refunded
$7,363.10 for OLI premiums, OWCP found an overpayment of $7,147.25 was created for OLI
premiums,8 and $17,249.55 for PRBLI premiums ($17,427.75 minus $178.20).
LEGAL PRECEDENT -- ISSUE 1
Section 8114(d) of FECA provides:
“Average annual earnings are determined as follows -(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately

6

OWCP had issued a decision dated October 30, 2014, but stated that the November 4, 2014 decision superseded
the October 30, 2014 decision.
7

OWCP indicated that on March 4, 2011 it had refunded $2,349.00 for over-deduction of basic life insurance
(BLI) premiums, and $7,363.10 for over deduction of optional life insurance (OLI) premiums. The record confirms
that appellant received a payment dated March 4, 2011 of $9,712.10.
8

OWCP subtracted $215.85 from the refund amount of $7,363.10.

3

preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual
rate of pay; or
(B) was not fixed, the average annual earnings are the
product obtained by multiplying his daily wage for
particular employment, or the average thereof if the daily
wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of
a 51/2-day week, and 260 if employed on the basis of a 5day week.”
It is well established that a claimant is entitled to a decision that contains adequate
findings of fact and a statement of reasons.9
ANALYSIS -- ISSUE 1
On the prior appeal, the Board affirmed the fact of overpayment in this case. The Board
found that the proper pay rate for compensation purposes should be based on a fixed pay rate for
32 hours per week under 5 U.S.C. § 8114(d)(1)(A). The issue is whether OWCP properly
determined the amount of the overpayment based on an incorrect pay rate.
OWCP indicated that appellant was paid $546,248.85 in gross wage-loss compensation
from April 14, 2003 to December 18, 2010. It documented the amount of compensation for each
compensation payment commencing April 14, 2003. In addition, OWCP calculated that
appellant should have received $436,966.81 for this period using the correct pay rate of
$1,343.06 per week. The record contains detailed calculations as to the compensation appellant
should have received for April 14 to 30 and May 1, 2003 to January 24 and 25, to September 4
and 5, 2004 to February 19 and 20, 2005 to August 29 and 30, 2009 to December 18, 2010.
There was no contrary evidence presented. As appellant should have received $436,966.81
during this period, an overpayment of $109,282.04 was created. The Board finds that OWCP
properly determined an overpayment of $109,282.04 based on an incorrect pay rate.
On appeal, appellant again argues that he believes that his pay rate was not properly
determined by OWCP. The Board has addressed the issue in its prior decision and order. The
proper pay rate was determined under 5 U.S.C. § 8114(d)(1)(A) based on a 32-hour workweek.
OWCP determined appellant’s pay rate was $1,346.06 per week and no contrary evidence was
presented. Based on the evidence of record, an overpayment of $109,282.04 was created.

9

See M.M., Docket No. 14-1166 (issued December 1, 2014); 20 C.F.R. § 10.126.

4

LEGAL PRECEDENT -- ISSUE 2
Under the FEGLI program, most civilian employees of the federal government are
eligible to participate in basic life insurance and one or more of the options.10 The coverage for
basic life is effective unless waived11 and premiums for basic and optional life coverages are
withheld from the employee’s pay.12
FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue his or her basic life insurance coverage without cost under
certain circumstances13 and may also retain the optional life insurance.14 At separation from the
employing establishment, the FEGLI insurance will either terminate or be continued under
“compensationer” status.15 If the compensationer chooses to continue BLI and OLI coverage,
the schedule of deductions made while the compensationer was an employee will be used to
withhold premiums from his or her compensation payments.16 Thus, while receiving disability
compensation in lieu of retirement benefits, the former employee is responsible for all insurance
premiums.17
ANALYSIS -- ISSUE 2
The November 17, 2014 decision finalized the findings with respect to an overpayment
based on life insurance deductions. The decision modified its prior findings and now found that
it should have deducted, from April 14, 2003 to December 18, 2010, PRBLI premiums of
$17,427.75 and $29,484.95 in OLI premiums. The prior calculations indicated that $15,064.27
should have been deducted for PRBLI and $21,906.00 in OLI.
The only explanation provided for these new calculations were OWCP’s finding that the
new information from OPM established a final salary of $87,289.00 on which to base
deductions. OWCP stated that it had previously used $69,831.00. This is not an adequate
explanation in the present case. As the above discussion illustrates, $87,289.00 represented the
pay rate for a GS, Step 10 as of January 2003. This was specifically the pay rate that OWCP
found was an incorrect pay rate for compensation purposes, and the Board has affirmed this
finding. The basis for the overpayment discussed in the first issue was that OWCP had
incorrectly used a pay rate of $87,289.00. OWCP must clearly explain to appellant why a “final
10

5 C.F.R. § 870.201.

11

Id. at § 870.204(a).

12

Id. at § 870.401(a).

13

Id. at § 870.701, subpart G.

14

Id. at § 871.201, subpart B; 8702.201, subpart B; 873.203, subpart B.

15

Id. at § 870.501.

16

Id. at § 872.410, subpart D.

17

Scherrie L. Stanley, 53 ECAB 433 (2002).

5

salary” of $87,289.00 is now the appropriate pay rate on which to base deductions for PRBLI
and OLI. If OPM uses a different method of calculating the pay rate used for deduction of life
insurance premiums, this should be discussed and proper findings made.
Appellant is entitled to a decision with findings of fact and a statement of reasons.18 The
case will be remanded to OWCP for proper findings as to the life insurance deductions in this
case. After such further development as is necessary, OWCP should issue an appropriate
decision.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA19 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of [FECA] or would be against equity
and good conscience.”20 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.21 For waiver under
the “defeat the purpose” FECA standard, appellant must show that he needs substantially all of
his current income to meet current ordinary and necessary living expenses, and that his assets do
not exceed the resource base.22
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; (b) the individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.

18

Supra note 9.

19

Supra note 1.

20

5 U.S.C. § 8129(b).

21

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).
22

See Robert E. Wenholz, 38 ECAB 311 (1986).

6

ANALYSIS -- ISSUE 3
The only financial information in the record is that provided by appellant on March 14,
2011 which included $10,382.10 in monthly income and $9,093.82 in expenses. As to assets,
appellant reported $16,902.39 in checking and savings bank accounts. He had assets that
exceeded the resource base, and no evidence that recovery would be against equity and good
conscience was presented. Appellant has not submitted any additional financial evidence
relevant to the waiver issue.23 He may submit new relevant financial evidence and request
waiver of the established overpayment.24 As noted above, an overpayment of $109,282.04 has
been established, but the amount of an additional overpayment based on life insurance
deductions has not been properly finalized. Based on the current overpayment amount and
evidence, OWCP has properly denied waiver of recovery of this overpayment.
LEGAL PRECEDENT -- ISSUE 4
OWCP regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize hardship.”25
ANALYSIS -- ISSUE 4
The Board also addressed the issue of recovery from continuing compensation payments
in its prior decision. It was noted that the hearing representative provided a detailed review of
appellant’s financial circumstances in determining that the overpayment could be recovered by
deducting $1,500.00 from continuing compensation. The November 4, 2014 decision indicated
that the periodic deduction would be $1,384.62. Again, no additional relevant financial
information has been submitted indicating a change in appellant’s financial circumstances.
Based on the evidence of record, OWCP has properly determined the recovery of the
overpayment from continuing compensation. The Board notes that the amount of the
overpayment regarding life insurance deductions must be properly finalized by OWCP, as
discussed above.

23

The record contains EN1032 reports from appellant dated August 20, 2012, August 16, 2013, and
August 14, 2014. These reports provide information on employment activity, but do not discuss expenses or assets.
24

See S.S., Docket No. 15-0958 (issued July 15, 2015).

25

20 C.F.R. § 10.441.

7

CONCLUSION
The Board finds that OWCP properly determined that an overpayment of $109,282.04
was created based on an incorrect pay rate. As to an overpayment based on deductions for
PRBLI and OLI, the case is remanded for a proper explanation as to the amount of the
overpayment. The Board further finds that OWCP properly denied waiver of recovery of the
$109,282.04 overpayment and properly determined the recovery of that overpayment from
continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 4, 2014 is affirmed with respect to an overpayment
based on an incorrect pay rate. The November 17, 2014 decision is set aside and the case
remanded for further action consistent with this decision of the Board.26
Issued: January 20, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

26

James A. Haynes participated in the original decision but was no longer a member of the Board effective
November 16, 2015.

8