United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
TENNESSEE VALLEY AUTHORITY, WATTS
BAR NUCLEAR PLANT, Chattanooga, TN,
Employer
__________________________________________

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

Docket No. 06-2113
Issued: May 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2006 appellant filed a timely appeal from the August 16, 2006 merit
decision of the Office of Workers’ Compensation Programs, which found both forfeiture and an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the forfeiture and overpayment issues.
ISSUES
The issues are: (1) whether appellant forfeited his right to compensation from
February 11, 1992 to March 18, 1993, from December 4, 1993 to March 4, 1995 and from
March 17, 1995 to March 11, 1997; (2) whether appellant was at fault in creating the resulting
overpayment, thereby, precluding waiver; and (3) whether the Office properly determined that
repayment was due and payable in full.

FACTUAL HISTORY
On August 9, 1976 appellant, then a 27-year-old millwright, sustained an injury in the
performance of duty: “There was an air hose on walk board. I stepped off one walk board to
another. Air hose was wet and my foot just slipped off of it. I felt my knee twist at that time.”
The Office accepted his claim for left knee strain, pes anserine bursitis, degenerative joint
disease, torn medial meniscus and a temporary aggravation of right leg and foot strain.
Appellant received compensation on the periodic rolls.
On August 17, 1992 the Office noted the following in its statement of accepted facts:
“From 1980 through 1991, [appellant] owned and operated [SCF, a concrete finishing business],
performing numerous activities associated with the business. These activities included
supervising the labor crews, work on projects and receiving deliveries of concrete.”
Appellant signed EN1032 disclosure forms on March 18, 1993, March 4, 1995, June 17,
1996 and March 11, 1997. On each form he represented that he did not work for any employer
and was not self-employed during the prior 15 months.
On January 20, 2000 the employer’s Office of the Inspector General (OIG) reported its
finding that appellant knowingly made false statements on the EN1032 disclosure forms by
failing to report his employment or self-employment at SCF. Appellant was the owner and sole
stockholder of SCF, and the OIG attached numerous exhibits showing him actively engaged in
the business during the periods in question. His son stated the following:
“My dad hired me as a laborer in 1989. Some of my responsibilities included
cleaning the job site, collecting materials from the trucks and helping other
employees. Although my dad put me as the owner of [SCF], I never really owned
the business. I didn’t do the books. I didn’t hire or fire employees. I didn’t set
up jobs. I didn’t even do payroll. All I did was sign checks. The only reason I
signed the checks was because my dad told me to.
“Even though I was the owner on paper, my dad still functioned as the owner. In
fact, I did the same things I did as a laborer, except for signing checks. I still
received the same pay from my dad. When I was supposed to be the owner, Keith
Robinson continued to bid on jobs, set up jobs and act as foreman.
“Keith and my dad continued to tell me what to do even though I was supposed to
be the owner. So, as far as I’m concerned the business was not transferred to me
in 1991 or ever. My dad was always asking me to sign papers. I often did not
know what I was signing. In approximately 1993, I left the business and moved
to Port Orchard, Washington, to live with my mom.”
***
“My dad handled all the financial records. I never learned the day-to-day
business operations, although, I signed a lot of papers that I didn’t know what
they were. My dad never told me what I was signing. Approximately
January 1998, my dad called me and told me that someone would either call me or
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write a letter asking questions about his work activities. He then tried to tell me
what he wanted me to say. He said that I want you to tell them I haven’t been
working, I gave you the business and Keith is working for you. He more or less
wanted me to lie. I told him that I was not going to lie and he got mad and
wanted to talk to my brother….”
Statements from golf course and greens superintendents, several business owners and a
number of individuals establish that appellant directly engaged in business activities from 1994
to 1997. The OIG reported that appellant generally endorsed checks deposited in several SCF
accounts; provided an estimate to an undercover special agent; dealt directly with customers, one
of whom stated that appellant was on the job site approximately 75 to 80 percent of the time;
subcontracted and dealt directly with other business owners; and contracted and handled
transactions for individual customers.
In a decision dated January 24, 2002, the Office found that appellant forfeited
$122,489.11 in compensation for the periods covered by the EN1032 disclosure forms because
he failed to report employment income as required under 5 U.S.C. § 8106(b). The Office found
that the evidence established that he acted as a manager and foreman/supervisor for his own
concrete business through 1997. The Office found that he performed all the duties of a foreman
until he hired Mr. Robinson in 1994 and that from 1994 through 1997 he continued to participate
actively in the running and operation of his business. The Office noted that appellant’s signature
on an April 27, 1991 Form EN1049 showed that he understood his obligation to report
employment activity. The Office concluded that he knowingly reported no earnings or
employment activity on the disclosure forms in question.
On January 24, 2002 the Office also issued a preliminary determination that appellant
was at fault in the creation of a $122,489.11 overpayment of compensation because he
knowingly failed to report his self-employment income on the EN1032 disclosure forms.
Appellant requested a prerecoupment hearing and submitted a February 21, 2002 overpayment
recovery questionnaire. Following a hearing on March 25, 2004, appellant submitted an updated
overpayment recovery questionnaire dated April 23, 2004.
In a decision dated July 23, 2004, the hearing representative affirmed the Office’s
January 24, 2002 forfeiture decision and finalized the January 24, 2002 preliminary
determination that appellant was at fault in creating the resulting overpayment. The hearing
representative found the overpayment was “due and payable in full.” The hearing representative
did not find appellant’s testimony to be credible regarding his very limited role in the business.
The hearing representative found that appellant provided consulting services, showed up at work
sites to oversee jobs, took part in monetary transactions, was available to oversee transactions or
represent the company at various times or during various transactions with the customer or
client, answered telephone calls on behalf of the company, received payment for work completed
on the part of the company, signed or deposited checks or funds on behalf of the company and in
some capacity acted as liaison for the company. Appellant completed additional overpayment
recovery questionnaires on September 22 and December 11, 2004.
On July 13, 2006, in Docket No. 05-1531, the Board set aside the Office’s July 23, 2004
decision as improperly issued. The Office sent the decision to the wrong address. The Board

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found that appellant was entitled to a merit decision on the issue of forfeiture. The Board
remanded the case to the Office for an appropriate final decision and noted that the improperly
issued decision left the record with no final decision on the issues of fact of overpayment,
amount of overpayment, fault or rate of recovery.
On August 16, 2006 the Office reissued its July 23, 2004 decision and sent it to
appellant’s last known address. This appeal follows.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides:
“An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation payable to
the employee or otherwise recovered under [section] 8129 of this title, unless
recovery is waived under that section.”1
As forfeiture is a penalty, it is not enough to establish that the claimant failed to report
earnings from employment or self-employment. The Office must show that the claimant
knowingly omitted or understated any part of his earnings. “Knowingly” means “with
knowledge, consciously, willfully or intentionally.”2 The Office thus has the burden of proof to
establish that appellant did, either with knowledge, consciously, willfully or intentionally, omit
or understate any part of his earnings. To meet this burden, the Office is required to examine
closely appellant’s activities and statements. The Office may meet this burden without an
admission by the claimant if the circumstances of the case establish that he failed to reveal fully
and truthfully the full extent of his employment activities and earnings.3
“Earnings from employment or self-employment” means gross earnings or wages before
any deductions and includes the value of subsistence, quarters, reimbursed expenses and any
other goods or services received in kind as remuneration. It also means a reasonable estimate of
the cost to have someone else perform the duties of an individual who accepts no remuneration.
Neither lack of profits, nor the characterization of the duties as a hobby, removes an

1

5 U.S.C. § 8106(b).

2

20 C.F.R. § 10.5(n) (1999).

3

Terryl A. Geer, 51 ECAB 168 (1999).

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unremunerated individual’s responsibility to report the estimated cost to have someone else
perform his duties.4
The test of what constitutes reportable earnings is not whether the claimant received a
salary but what it would have cost to have someone else to do the work. Where a claimant takes
an active role in the operation of a business, the claimant is obligated to report as “earnings” the
amount that would have been paid to a person doing such work.5
ANALYSIS -- ISSUE 1
The evidence collected by the OIG belies appellant’s assertion that his only involvement
in the concrete finishing business was as an investor.6 The evidence establishes that he actively
engaged in business activities during the periods covered by the EN1032 disclosure forms.
Appellant dealt directly with customers, provided estimates, contracted for jobs, hired
employees, started his crew, visited job sites, provided invoices, received payments and endorsed
checks. His son, who worked for SCF from 1989 to approximately 1993, confirmed that
appellant handled all the financial records and functioned as the owner.
Each disclosure form asked appellant to report any work he performed, and if he
performed any duties in any business enterprise for which he was not paid, the forms required
him to show as “rate of pay” what it would have cost the employer or organization to hire
someone to perform those duties. Appellant omitted this information. Notwithstanding bold
print warning that “severe penalties may be applied for failure to report all work activities
thoroughly and completely,” he denied performing any work or having any involvement in any
business enterprise. This representation proved to be false. The Office hearing representative,
who had an opportunity to observe appellant’s demeanor at a hearing, found his testimony
regarding his very limited role in the business not to be credible, a finding the Board is not
compelled to overturn.7
The Board finds that appellant knowingly omitted or understated his involvement in the
concrete finishing business. The nature and extent of his involvement, together with the
specificity of the disclosure forms, make it difficult to come to any other conclusion. It is the
statement from his son that removes any doubt about appellant’s intent. Appellant asked his son
4

20 C.F.R. § 10.5(g) (1999).

5

Anthony A. Nobile, 44 ECAB 268, 271 (1992) (the claimant worked at a liquor store owned by his family but
contended that he received no salary for his work).
6

Income on profits from business are not generally held to be the fruits of wage-earning capacity but of the
investment, the management and the business acumen of the owner, and the return on the investment of an
employee’s capital, even though augmented by his personal attention in looking after the business in which it is
invested, cannot be considered as if it were wages. Where, however, the source of income can be differentiated, i.e.,
as representing either profit and return on capital, or the product of the employee’s work, any portion of the income
directly traceable to such work may be considered as if it were “wages.” Vernon Booth, 7 ECAB 209 (1954). It is
for the Office to decide, not the claimant, whether business involvement or work activities demonstrate a wageearning capacity that might affect compensation payments. The claimant is always responsible for full disclosure.
7

Anthony J. DeWilliams, 48 ECAB 410, 411 (1997).

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to make certain representations to investigators, representations that the son knew to be untrue:
that appellant had not been working, that appellant had given the business to the son and that
Mr. Robinson was working for the son. He took conscious, willful and intentional steps to
conceal his involvement and work activities because he knew that disclosure could affect how
much compensation he received from the Office for disability due to his employment injury.
The Board finds that the Office has met its burden of proof. In violation of 5 U.S.C.
§ 8106(b)(2), appellant knowingly omitted a reasonable estimate of the cost to have someone
else perform the duties he performed. He thereby forfeited his right to compensation with
respect to the periods for which the EN1032 disclosure forms were required. The Board will
affirm the Office’s August 16, 2006 decision finding that appellant forfeited his right to
compensation from February 11, 1992 to March 18, 1993, from December 4, 1993 to March 4,
1995 and from March 17, 1995 to March 11, 1997.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).8
Whether an individual is at fault in creating an overpayment depends on the
circumstances of the overpayment. The degree of care expected may vary with the complexity
of those circumstances and the individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault, under the second standard, for failing to
provide information on the EN1032 disclosure forms. Appellant knew or should have known
that this information was material. Each of the disclosure forms made clear that the Office
would use the information requested to decide whether he was entitled to continue receiving
benefits under the Act or whether his benefits should be adjusted. Warnings that severe penalties
could be applied for failure to report all work activities thoroughly and completely underscored
the importance of this information and appellant’s responsibility to disclose it. The Board will
therefore affirm the Office’s August 16, 2006 decision finding that appellant was at fault in
creating the overpayment that arose from his forfeiture of compensation. Appellant’s fault in the

8

20 C.F.R. § 10.433(a) (1999).

9

Id. at § 10.433(b).

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matter precludes any consideration of waiver.
overpayment.

The law requires the Office to recover the

LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.10 When an overpayment has been made to an
individual who is entitled to further payments, the individual shall refund to the Office the amount
of the overpayment as soon as the error is discovered or his attention is called to same. If no
refund is made, the Office 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.11
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information will be used to
determine the repayment schedule, if necessary.12
ANALYSIS -- ISSUE 3
The Board finds that this case is not in posture for determination on the issue of recovery.
In its August 16, 2006 decision finalizing the overpayment, the Office noted that appellant
provided no evidence with his April 23, 2004 overpayment recovery questionnaire to document
his financial status. The Office stated that after the submission of this questionnaire “no
additional evidence or argument was received for review or consideration.”
The record shows, however, that appellant submitted overpayment recovery
questionnaires on September 22 and December 11, 2004. With these questionnaires, he
submitted documents to support his current financial status. Although this evidence was not
before the Office when it issued its July 23, 2004 decision, this evidence was before the Office
when it issued its August 16, 2006 decision finalizing the overpayment. The Office did not
consider the financial documentation appellant submitted, nor did the Office, in 2006, ask
appellant for a current overpayment recovery questionnaire so that it could take into account
relevant factors so as to minimize (but not necessarily eliminate)13 any hardship when it
decreased his compensation to recover the overpayment.14
10

5 U.S.C. § 8129(a).

11

20 C.F.R. § 10.441(a).

12

Id. at § 10.438(a).

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Preliminary and Final Decisions, Chapter
6.200.4.d(1)(b) (May 2004).
14

In judging whether repayment of the uncompromised portion of the debt would cause hardship, the Office
should assess the debtor’s income and assets, and the debtor should be required to submit a current financial report
(OWCP-20) if one has not been provided within the previous six months. Id. at Debt Liquidation, Chapter
6.300.6.a.

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The Board will remand the case for further development on the issue of recovery.
Pending further development of appellant’s current financial status and the Office’s
consideration of relevant factors so as to minimize any hardship in setting the rate of recovery,
the Office should suspend its collection of the overpayment. After further development, the
Office shall issue a final decision on an appropriate rate of recovery from continuing
compensation.15
CONCLUSION
The Board finds that the Office properly applied the penalty provision of 5 U.S.C.
§ 8106(b)(2). Appellant knowingly omitted as “earnings” what it would have cost his concrete
finishing business to hire someone to perform the duties he performed. He concealed his work
activities and forfeited his right to compensation for the periods covered by the EN1032
disclosure forms. The Board finds that appellant was at fault in the creation of the resulting
overpayment, thereby, precluding waiver. He failed to provide information that he knew or
should have known was material. The Board also finds that further development is warranted on
the issue of recovery. The Office must assess appellant’s current financial status and consider
relevant factors so as to minimize any hardship.

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The issues of forfeiture, fact of overpayment and fault are decided. There is no need for the Office to issue
another decision on those issues. The Office should, however, clearly explain how it calculated the amount of the
overpayment. Vincent E. Washington, 42 ECAB 636, 640 (1991). The Office indicated that appellant received
compensation of $29,404.50 from February 11, 1992 to March 18, 1993, $34,939.32 from December 4, 1993 to
March 4, 1995 and $58,145.29 from March 17, 1995 to March 11, 1997. The Office should document these
payments or explain how it arrived at these amounts.

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ORDER
IT IS HEREBY ORDERED THAT the August 16, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this opinion.
Issued: May 10, 2007
Washington, DC

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL TEXAS VETERANS HEALTH
CARE SYSTEM, Waco, TX, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1831
Issued: February 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 18, 2014 appellant, through counsel, filed a timely appeal from the May 6,
2014 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 sustained lumbar intervertebral disc disease (IVD) and
radiculopathy as a consequence of her accepted injuries.
On appeal appellant, through counsel, argues that OWCP improperly referred to the
second opinion physician as the referee physician, that if he was the referee physician he was
improperly selected, and that the second opinion was insufficient and lacked medical rationale.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 5, 2005 appellant, then a 55-year-old nurse, filed a traumatic injury claim
alleging that on February 28, 2005 she suffered a dislocation of T3, T4, and T5 when assisting to
control a psychotic patient. On March 31, 2005 OWCP accepted appellant’s claim for
sprain/strain, lumbosacral joint ligament. On July 6, 2012 OWCP expanded the list of accepted
conditions to include sprain of lumbar and thoracic region of back and closed dislocation of
lumbar and thoracic vertebra.
Appellant began her treatment with Dr. Les Benson, a Board-certified neurologist, on
July 18, 2013. Dr. Benson diagnosed appellant with lumbar IVD, radiculopathy, closed
dislocation lumbar vertebra, closed dislocation thoracic vertebra, lumbar sprain, and thoracic
sprain. He referred appellant for rehabilitation therapy and a new magnetic resonance imaging
(MRI) scan of the right lumber spine.
In an August 27, 2013 imaging report, Dr. Kathleen A. Sorensen, a Board-certified
radiologist, found spondylitic changes of the lumbar spine with mild narrowing of the canal at
T11-12 and L4-5 and mild foraminal narrowing at multiple levels. She also found a left adrenal
lesion.
In a September 13, 2013 letter, Dr. Benson stated that appellant had been evaluated for
closed dislocation lumbar vertebra, closed dislocation thoracic vertebra, lumbar sprain, and
thoracic sprain. He opined that appellant’s diagnosis should be upgraded to include lumbar IVD
and radiculopathy, which were directly related to the accepted conditions. Dr. Benson noted that
an MRI scan was performed over a year ago which reported that she exhibited IVD. He also
noted that appellant had an electromyogram study on August 5, 2013. Dr. Benson also submitted
electrodiagnostic results from an examination done by Dr. Jonathan Walker, a Board-certified
neurologist, on August 5, 2013. Dr. Walker determined that appellant’s nerve conduction
velocity electromyography evinced abnormal amplitudes and velocities of the Peroneal motor
bilaterally along with abnormal electromyography findings suggestive of a possible compressive
nerve root irritation at the L5 level bilaterally, which is consistent with a radiculopathy.
By letter dated October 10, 2013, appellant’s counsel requested that OWCP expand her
claim to include the conditions of lumbar IVD and radiculopathy.
On October 24, 2013 OWCP referred appellant’s case to an OWCP medical adviser. In
an October 24, 2013 report, OWCP medical adviser noted that there was a significant gap in the
records regarding treatment of appellant’s condition from 2005 to 2012. He noted that the initial
accepted diagnoses under this claim in 2005 did not include conditions involving degeneration or
displacement of lumbar discs or radiculopathy, despite findings of disc degeneration and
protrusion on the MRI scan of 2005. OWCP medical adviser noted that this is correct as such
conditions existed prior to the employment-related incident and were, more likely than not, the
result of the aging process rather than trauma. Likewise, he opined that the findings noted by
Dr. Benson on his most recent studies are again more consistent with the aging process than the
injury of February 28, 2005, as it is consistent with the natural history of these degenerative
processes over the course of several years. Accordingly, OWCP medical adviser suggested that
appellant’s claim not be upgraded to include the diagnoses proposed by Dr. Benson.

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By decision dated October 29, 2013, OWCP denied appellant’s claim for a consequential
injury.
In a February 6, 2014 response to OWCP medical adviser’s report, Dr. Benson disagreed
with the assessment made by OWCP medical adviser. He noted that, although appellant quite
likely has conditions that are degenerative in nature, her conditions, whether degenerative or not,
were aggravated by the work injury, which would qualify them to be accepted by OWCP.
Dr. Benson noted that appellant did not experience these symptoms leading up to the incident,
and the diagnostic studies confirm his findings. He therefore opined that based on her objective
findings, it was his medical opinion with reasonable medical certainty that appellant’s IVD and
radiculopathy were, at the very least, exacerbated as a direct result of the employment injury that
occurred on February 28, 2005. In a February 14, 2014 report, Dr. Benson noted that the kind of
trauma appellant experienced made her accepted conditions worse, and that her OWCP claim
should be upgraded to included IVD and radiculopathy or radiculitis.
By letter dated February 18, 2014, appellant, through counsel, requested reconsideration.
Counsel argued that OWCP medical adviser’s opinion was not valid, that he did not explain why
he believed appellant’s medical conditions were degenerative, that at most his opinion of OWCP
medical adviser created a conflict in the medical evidence which required referring appellant’s
case to an impartial medical examiner, that Dr. Benson explained why appellant’s accepted
conditions should be upgraded, and that consequential injuries should be included as accepted
conditions.
On March 28, 2014 OWCP referred appellant to Dr. Robert D. Harper, a Board-certified
orthopedic surgeon, for a second opinion. In a March 28, 2014 opinion, Dr. Harper noted that
the MRI scan of the spine conducted on April 8, 2005 showed diffused degenerative discs,
moderate left foraminal stenosis at L3-4, mild central disc protrusion at L5-S1, and mild annular
bulge at T11-12. He opined that the diffuse degenerative discs and the moderate left foraminal
stenosis at L3-4 preexisted the injury as the time between the injury and the work-related injury
was inadequate for the described changes to be caused by the injury. Dr. Harper noted that
appellant has chronic lower back pain with degenerative changes, paraspinous tenderness in
thoracic and lumbar spine, restricted lumbar motion, positive seated and supine straight leg
raises, and diminished sensation in the left lower extremity. He concluded that, based on the
somewhat conflicting information, the natural history of spine problems and reasonable medical
probability, the employment-related injury of February 28, 2005 resolved on or before 2007.
Dr. Harper opined that, while the findings indicate that appellant’s condition is not resolved and
still active causing disability, there is insufficient information/evidence to conclude that the
injury of February 28, 2005 produced, aggravated, or precipitated the current situation/condition/
recurrence.
By decision dated May 6, 2014, OWCP denied modification of its October 29, 2013
decision.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural occurrence that

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flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.2
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.3 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation, to arise out of and in the course of employment and is compensable.4 A claimant
bears the burden of proof to establish the claim for consequential injury.5
Causal relationship is a medical issue,6 and the medical evidence generally required to
establish causal relationship is rationale medical opinion evidence. The opinion of the physician
must be based on a complete factual and medical history of the claimant,7 must be one of
reasonable certainty,8 and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the established incident or factor of
employment.9
ANALYSIS
OWCP accepted appellant’s claim for sprain/strain of the lumbosacral joint ligament,
sprain of the lumbar and thoracic regions of the back, and closed dislocation of lumbar thoracic
vertebra. Appellant, through counsel, asked that her claim be expanded to include diagnoses of
lumbar IVD and radiculopathy. OWCP denied her claim for a consequential injury.
The Board finds that appellant has not met her burden of proof to establish that the
conditions of lumbar IVD and radiculopathy were a consequence of the February 28, 2005
employment injuries. The only evidence offered in support of expansion of appellant’s claim is
the reports by Dr. Benson. Although Dr. Benson opined that appellant’s IVD and radiculopathy
were, at the very least, exacerbated by her employment injury, she does not provide a
rationalized medical opinion that supports this conclusion. The Board has found that medical
conclusions unsupported by rationale are of little probative value.10 Although Dr. Benson’s
reports establish that appellant has IVD and radiculopathy, she does not provide an explanation
or any diagnostic tests or examinations that explain the relationship of the conditions to her
2

Albert F. Ranieri, 55 ECAB 598 (2004).

3

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

4

Kathy A. Kelley, 55 ECAB 206 (2004); see also C.S., Docket No. 11-1875 (issued August 27, 2012).

5

S.P., Docket No. 14-900 (issued August 8, 2014).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William Enright, 31 ECAB 426, 430 (1980).

10

M.P., Docket No. 14-1289 (issued September 26, 2014).

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employment or the accepted conditions. The fact that appellant now experiences IVD and
radiculopathy does not necessarily mean that it was related to her accepted conditions.
Furthermore, the fact that appellant was asymptomatic prior to her employment injury is not a
sufficient rationalization. Finally, the Board notes that there is no evidence of any bridging
symptoms linking appellant’s IVD and radiculopathy to the accepted conditions.11
None of the remaining medical reports provide any support for appellant’s request to
expand the claim. Neither Dr. Walker nor Dr. Sorensen addresses causal relationship. OWCP
medical adviser suggested that the evidence was not sufficient to upgrade appellant’s claim to
include the conditions of IVD and radiculopathy, as suggested by Dr. Benson. He noted that
Dr. Benson’s findings were consistent with the aging process. Dr. Harper also does not link
appellant’s IVD and radiculopathy to her accepted conditions. Accordingly, appellant has not
submitted medical evidence sufficient to establish that her diagnosed conditions of IVD and
radiculopathy were a consequence of the February 28, 2005 employment injuries.
The Board notes that appellant’s counsel correctly contends that OWCP improperly
referred to Dr. Harper as a referee physician. The Board finds that this is harmless error as the
referral referenced the doctor as a second opinion physician and, as found above, appellant did
not meet her burden of proof to provide rationalized medical evidence in support of her claim
that her IVD and radiculopathy were a consequence of her accepted conditions. Thus, counsel’s
contention is without merit.
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 establish that she sustained lumbar IVD and
radiculopathy as a consequence of her accepted injuries.

11

L.M., Docket No. 13-855 (issued September 12, 2013); Docket No. 10-2044 (issued August 22, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2014 is affirmed.
Issued: February 18, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE ARMY, ALABAMA
ARMY NATIONAL GUARD, Birmingham, AL,
Employer
__________________________________________

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

Docket No. 07-1636
Issued: December 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from the April 11, 2007 merit decision
of the Office of Workers’ Compensation Programs, finding that he did not sustain a ratable
binaural (both ears) hearing loss entitling him to a schedule award and denying authorization for
hearing aids. Pursuant to 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 has established that he sustained a ratable binaural
(both ears) hearing loss entitling him to a schedule award; and (2) whether the Office properly
denied authorization for hearing aids.
FACTUAL HISTORY
On August 24, 2004 appellant, then a 54-year-old information technology specialist, filed
a claim for an occupational disease. On September 27, 1997 he first became aware of his

hearing loss and realized that this condition was caused by his federal employment. Appellant
was exposed to loud jet engine noise from commercial and military aircraft taking off and
landing. He was last exposed to the alleged employment factor on September 27, 1997.
By decision dated February 2, 2005, the Office denied appellant’s claim on the grounds
that it was not timely filed pursuant to 5 U.S.C. § 8122. By letter dated February 5, 2005, he
requested an oral hearing before an Office hearing representative.
In an October 5, 2005 decision, a hearing representative set aside the February 2, 2005
decision and remanded the case to the Office. He found that appellant’s occupational disease
claim was timely filed as appellant first realized that his hearing loss was caused by his federal
employment on April 23, 2004. At the hearing appellant testified that he mistakenly indicated on
his claim form that September 27, 1997 was the date that he realized his hearing loss was caused
by his employment.
On November 2, 2005 an Office medical adviser reviewed appellant’s case record. He
found that an April 10, 1989 audiogram was virtually normal while a September 17, 1991
audiogram revealed mild high frequency hearing loss. The Office medical adviser opined that
the change, though not striking, was probably significant.
By letter dated November 10, 2005, the Office referred appellant, together with the case
record, a statement of accepted facts and a list of questions to be addressed to, Dr. Robert J.
Sciacca, a Board-certified otolaryngologist, for a second opinion medical examination. At the
time of appellant’s scheduled examination, Dr. Sciacca was not available due to emergency
surgery. Instead, he was evaluated by Dr. John C. Davis, a Board-certified otolaryngologist.
In a November 23, 2005 medical report, Dr. Davis stated that the April 10, 1989
audiogram revealed that appellant already had mild hearing loss in the right ear and normal
hearing in the left ear. On examination, he reported a decrease in high frequency hearing in both
ears that was somewhat more excessive than the presbycusis noted above. Dr. Davis opined that
workplace exposure had some effect on appellant’s hearing but he could not comment as to the
extent of this effect. He diagnosed moderate high frequency sensorineural bilateral hearing loss
and found that appellant’s hearing loss was caused by his workplace noise exposure. Dr. Davis
indicated that appellant was exposed to noise 40 hours per week for over 8 years with no ear
protection. He recommended a hearing aid evaluation if appellant so desired. Dr. Davis also
recommended that appellant see a physician if he noticed any change in his hearing. A
November 23, 2005 audiogram performed by an audiologist whose signature is illegible,
accompanied Dr. Davis’s report. Testing of the right ear at frequency levels of 500, 1,000, 2,000
and 3,000 Hertz (Hz) revealed decibel losses of 10, 20, 15 and 50, respectively and in the left ear
decibel losses of 20, 15, 5 and 45, respectively.
On December 12, 2005 Dr. A.E. Anderson, Jr., an Office medical adviser, reviewed
Dr. Davis’s November 23, 2005 report and audiogram results to find that appellant reached
maximum medical improvement on November 23, 2005. He diagnosed binaural sensorineural
hearing loss. Dr. Anderson determined that appellant had a zero percent binaural hearing loss for
schedule award purposes. He checked the block marked no in response to the questions as to

2

whether a hearing aid was authorized and whether an examination by a specialist was
recommended.
By decision dated January 18, 2006, the Office accepted appellant’s claim for binaural
hearing loss due to his employment-related noise exposure. It, however, found that he was not
entitled to a schedule award as he did not sustain a ratable hearing loss based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001). The Office also found that the weight of the medical evidence established that
appellant would not benefit from hearing aids and, therefore, denied his claim for additional
medical benefits. In a letter dated January 25, 2006, appellant requested an oral hearing before a
hearing representative.
By decision dated March 26, 2007, a hearing representative affirmed in part the
January 18, 2006 decision. The evidence of record established that appellant did not have any
ratable hearing loss. The hearing representative, however, remanded the case to the Office
because the Office medical adviser failed to provide medical rationale explaining why appellant
did not require hearing aids despite Dr. Davis’s opinion that he could be evaluated for such
devices. The hearing representative also instructed the Office to ask the medical adviser to
comment on appellant’s hearing testimony that hearing aids could help his tinnitus-related
hearing problems.
On April 6, 2007 Dr. Anderson stated that appellant did not require hearing aids because
his nonratable bilateral hearing loss and normal speech reception threshold (SRT) of 20 decibels
bilaterally, implied a normal ability to recognize speech as a meaningful symbol. He stated that
the discrimination scores and his ability to discriminate various speech at 500 Hz, were excellent
on the left and good on the right. Regarding tinnitus, Dr. Anderson opined that there was no
indication in Dr. Davis’s November 23, 2005 examination that tinnitus impacted appellant’s
ability to perform activities of daily living. He noted that the term “tinnitus” did not appear
anywhere in the November 23, 2005 report.
By decision dated April 11, 2007, the Office denied authorization for hearing aids based
on Dr. Anderson’s April 6, 2007 opinion.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

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equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz the losses at each
frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to
hear everyday speech under everyday conditions.7 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.9 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.10
The A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral
hearing impairment may impair speech discrimination: “Therefore, add up to five percent for
tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.”11
ANALYSIS -- ISSUE 1
In response to the Office’s referral of appellant for a current evaluation as to the nature
and extent of any employment-related hearing loss, Dr. Davis, the second opinion specialist,
found that appellant sustained bilateral sensorineural hearing loss related to noise exposure in the
course of his federal employment. Dr. Anderson, the Office medical adviser, applied the
Office’s standardized procedures to the November 23, 2005 audiogram obtained by Dr. Davis.
Testing of the right ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel
losses of 10, 20, 15 and 50, respectively for a total of 95 decibels. When divided by 4, the result
is an average hearing loss of 23.75 decibels. The average loss of 23.75 decibels is reduced by 25
decibels to equal 0, which, when multiplied by the established factor of 1.5, results in a 0 percent
hearing loss for the right ear. Testing of the left ear at the same frequency levels revealed
decibel losses of 20, 15, 5 and 45, respectively for a total of 85 decibels. When divided by 4, the
result is an average hearing loss of 21.25 decibels. The average loss of 21.25 decibels is reduced
4

Supra note 2; Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision)
Docket 01-1570 (issued August 13, 2002).
5

A.M.A., Guides 250.

6

Id.

7

Id.

8

Id.

9

Id.

10

See Donald E. Stockstad, supra note 4.

11

A.M.A., Guides 246.

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by 25 decibels to equal 0, which, when multiplied by the established factor of 1.5, results in a 0
percent hearing loss for the left ear.
The Board finds that Dr. Anderson properly applied the Office’s standards to the findings
stated in Dr. Davis’s November 23, 2005 report and accompanying audiogram. This resulted in
a nonratable hearing loss, which is not compensable for schedule award purposes. Further,
Dr. Anderson stated that Dr. Davis neither diagnosed appellant as having tinnitus nor indicated
that this condition impacted his ability to perform activities of daily living.12 Because an
additional amount for tinnitus is warranted only in the presence of unilateral or bilateral
impairment, i.e., a measurable hearing loss, the Board finds that appellant is not entitled to a
schedule award based solely on his tinnitus.13
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of the Act provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.14 The Office must therefore exercise discretion in determining whether
the particular service, appliance or supply is likely to affect the purposes specified in the Act.15
ANALYSIS -- ISSUE 2
Dr. Davis recommended a hearing aid evaluation if appellant so desired. The Board
finds, however, that the record does not support that hearing aids are necessary. After having
reviewed Dr. Davis’s findings and accompanying audiogram, Dr. Anderson checked the block
marked no in response to the question as to whether a hearing aid was authorized. He explained
that appellant did not require hearing aids because his nonratable bilateral hearing loss and
normal SRT of 20 decibels bilaterally, implied a normal ability to recognize speech as a
meaningful symbol. Dr. Anderson further explained that the discrimination scores and
appellant’s ability to discriminate various speech at 500 Hz were excellent on the left and good
on the right. Moreover, as stated, he indicated that appellant was not diagnosed as having
tinnitus and this condition was not found to have impacted his ability to perform activities of
daily living. The Board finds that Dr. Anderson provided a rationalized explanation for why

12

Id. at 250; see also S.G., 58 ECAB ___ (Docket No. 07-30, issued February 26, 2007).

13

Id.

14

5 U.S.C. § 8103(a).

15

Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration of
the Act and must exercise that discretion to achieve the objectives of section 8103).

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hearing aids are not necessary.16 Therefore, the Board finds that, under these circumstances, the
Office acted within its discretion under section 8103(a) to deny authorization for hearing aids.17
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a ratable bilateral
hearing loss entitling him to a schedule award. The Board further finds that the Office properly
denied authorization for hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the April 11, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

16

Cathy B. Millin, 51 ECAB 331 (2000).

17

By letter dated August 4, 2006 and on appeal, appellant requested reimbursement of travel expenses related to
his attendance at Office hearings and second opinion medical examinations in light of the Office’s January 17, 2006
authorization for 148 units of ground mileage. The Board’s jurisdiction is limited to review of final decisions of the
Office on appeal. See 20 C.F.R. § 501.2(c). As the Office has not issued a decision on the payment of travel-related
expenses for appellant’s attendance at hearings and medical examinations, the Board has no jurisdiction to issue a
decision on this issue.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newport News, VA, Employer
__________________________________________

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Docket No. 18-0027
Issued: May 13, 2019

Case Submitted on the Record1

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

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 3, 2017 appellant filed a timely appeal of a July 25, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish total disability for
the period April 13, 2017 and continuing causally related to his accepted employment injury.

1

Appellant filed a timely request for oral argument. By order dated January 4, 2018, the Board, after exercising its
discretion, denied her request as her arguments could be adequately addressed in a decision based on a review of the
case record. Order Denying Request for Oral Argument, Docket No. 16-1805 (issued January 4, 2018).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 5, 2008 appellant then a 43-year-old letter carrier filed a traumatic injury
claim (Form CA-1) alleging that on January 28, 2008 he developed mental stress when his station
manager asked him to respond to a false complaint of sexual harassment asserted against him by
a coworker while in the performance of duty. On June 27, 2008 OWCP accepted his claim for the
condition of adjustment disorder with anxious mood/anxiety. Appellant stopped work on
February 5, 2008 and worked intermittently thereafter, stopping completely on March 4, 2013.
Appellant treated with Dannah C. Garr, Ph.D., a licensed professional counselor, from
May 17 to October 25, 2016, for work-related stress due to the accepted employment injury. He
reported experiencing flashbacks of the January 28, 2008 employment injury. Appellant
underwent psychological evaluation and testing on June 13, 2016 and was diagnosed with major
depressive disorder, recurrent episode, moderate, and post-traumatic stress disorder. In a report
dated October 25, 2016, Ms. Garr diagnosed post-traumatic stress disorder and major depressive
disorder.
By decision dated December 22, 2016, OWCP denied appellant’s claim for a consequential
injury.3
In reports dated November 2, 2016 to February 27, 2017, Dr. Chevette S. Alston, a licensed
professional counselor and clinical psychologist, noted that appellant feared driving since the
October 4, 2016 automobile accident. She further indicated that he attempted to assist a coworker
at the employing establishment, but was turned away because he was deemed a threat due to his
psychological condition. This incident caused appellant to sustain additional psychological pain.
Dr. Alston noted symptoms of distractible fear, rumination, stress, and trauma. She indicated that
appellant was stable and his prognosis good. On January 29, 2017 Dr. Alston noted that he
continued to struggle with trauma sequelae and cognitive ruminations that were related to the
events that occurred at work in 2008 and 2010. She indicated that appellant was unable to redirect
stressful cognitions and ruminations that impeded therapeutic progress and caused him to regress
in functioning and noted that injuries sustained during a commute to therapy compounded his
doubt about his safety. Dr. Alston diagnosed post-traumatic stress disorder, chronic, major
depressive disorder, moderate, and migraine.
In reports dated March 6 to April 10, 2017, Dr. Alston noted that appellant presented
anxious and reported pain related to a car accident. Appellant noted working full time as a
minister. Dr. Alston noted that his appearance was normal, he was attentive, normal concentration,
orientation in all spheres, normal memory, and eye contact with appropriate affect. She indicated
that appellant had problems with anger, boundaries, distractible fear, rumination, stress, trust,
3

On October 31, 2016 appellant filed a traumatic injury claim (Form CA-1) alleging that on October 4, 2016 he
was on his way to a weekly appointment for a work injury and collided with a deer causing his vehicle to overturn,
OWCP File No. xxxxxx823. He sustained a head injury (concussion), cervical strain, left knee strain, and right
shoulder strain. At the time of the accident appellant was disabled under claim, OWCP File No. xxxxxx530. In a
memorandum dated December 20, 2016, OWCP combined OWCP File Nos. xxxxxx530 and xxxxxx823. It indicated
that the injuries sustained in OWCP File No. xxxxxx823 were consequential to the accepted injuries in OWCP File
No. xxxxxx530. A decision on the new injury would be made in OWCP File No. xxxxxx530, the master file.

2

trauma, and worry. Dr. Alston recommended cognitive behavior therapy, behavior modification,
solution focused therapy, and emotionally focused therapy.
In a report dated March 20, 2017, Dr. Alston found that, despite ongoing therapeutic and
mental health interventions, appellant’s stress trauma continued to be unresponsive to positive
change and post-traumatic triggers continued to impede his daily functioning. She opined that his
current state of mental health functioning plateaued to “an inflexible and nonretractive point and
appeared to be permanent.” Dr. Alston opined that extensive psychological interventions did not
appear to be helpful and total disability should be considered. She diagnosed post-traumatic stress
disorder, chronic; major depressive disorder, moderate; and migraine, unspecified.
Appellant submitted a claim for compensation (Form CA-7) for leave without pay (LWOP)
for total disability commencing April 13, 2017. He reported working as a pastor in a church from
2012 to the present. On the reverse side of the claim form the employing establishment’s human
resource specialist indicated that appellant was not entitled to compensation because a “reasonable
accommodation for a nonwork-related condition was not compensable.” In an e-mail dated
June 22, 2017, the employing establishment indicated that the last day he worked had been
March 4, 2013.
In development letter dated June 22, 2017, OWCP requested that appellant submit
additional information to establish his claim for compensation. It requested that he submit medical
evidence establishing that total disability was due to the accepted condition for the period claimed.
OWCP afforded appellant 30 days to respond.
In a separate June 22, 2017 development letter, OWCP requested that appellant provide
additional information regarding his alternate work with the his church, including his job title, his
start date, the number of hours a day or week worked, and the pay rate.
In an undated statement, appellant indicated that he had been the pastor of his church since
2012. He reported working three to four hours a week, 52 weeks a year, and his salary was
$42,600.00 a year. Appellant’s duties included preaching, performing eulogies and weddings,
serving communion, and bible study.
Appellant submitted a psychological evaluation dated June 13, 2016.
Appellant submitted a computed tomography (CT) scan of the cervical spine dated
October 4, 2016 which revealed no evidence of fracture or subluxation. Similarly, a CT scan of
the head revealed no evidence of intracranial injury. Appellant submitted discharge instructions
for a head injury with additional diagnoses of cervical strain, left knee strain, rollover motor
vehicle collision, and shoulder strain.
Appellant was treated by Dr. Tom Hollandsworth, a Board-certified family practitioner, on
December 6, 2016, who noted that he sustained multiple injuries in a motor vehicle accident that
occurred on October 4, 2016 when his car flipped. Dr. Hollandsworth reported shoulder and neck
pain and worsening migraine headaches. He noted symptoms consistent with muscular injury and
bursitis. Dr. Hollandsworth further reported short-term memory loss. He diagnosed
musculoskeletal pain related to the October 4, 2016 injury.

3

On January 12 and August 2, 2017 Dr. Robert M. Paschall, an osteopath specializing in
neurology, treated appellant for head and neck pain which began after an incident in which he
rolled his car in an attempt to avoid hitting a deer. Appellant reported pain when moving his eyes
to the right, memory issues, visual hallucinations, and vertigo. Dr. Paschall diagnosed
postconcussion syndrome, cerebral concussion without loss of consciousness, migraine,
unspecified, and vestibulopathy of the left ear.
Dr. Thomas Brandon, a Board-certified orthopedic surgeon, treated appellant on
February 27 and March 28, 2017, for bilateral shoulder pain. He reported that appellant indicated
that he had been driving to a physician’s appointment when he hit a deer and rolled his car injuring
both shoulders and his cervical spine. Appellant reported working as a pastor. Findings on
examination of the bilateral shoulders revealed moderate subaromial tenderness, mild loss of
motion, and positive impingement. X-rays of the bilateral shoulders revealed Type 2 acromion
and osteophyte formation of the acromioclavicular (AC) joint. Dr. Brandon diagnosed bursitis of
the bilateral shoulder, osteoarthritis of the bilateral shoulders, and bilateral mild frozen shoulder
and he performed joint injections.
On March 3, 2017 Dr. John Greco, a Board-certified orthopedic surgeon, treated appellant
for neck pain which began after an automobile accident on October 4, 2016. Appellant reported
working as a pastor. Dr. Greco noted findings on examination of mild diffuse tenderness with
palpation of the cervical spine and moderate restricted range of motion. He noted that a CT scan
of the cervical spine revealed degenerative disc disease and mild bulging discs at C5-6. He
diagnosed cervical disc displacement in the mid-cervical region and recommended physical
therapy. On May 26, 2017 Dr. Greco reexamined appellant for bilateral shoulder pain, neck pain,
and back pain after a motor vehicle accident in October 4, 2016. Appellant’s prior history was
significant for a S1 fusion. X-rays of the thoracic spine revealed disc space narrowing. X-rays of
the lumbosacral spine revealed mild multilevel degenerative joint disease and implants at the S1
joint. Magnetic resonance imaging scans of the bilateral shoulders demonstrated mild to moderate
AC scan osteoarthrosis. Dr. Greco diagnosed bilateral osteoarthritic changes of the shoulders,
bursitis of both shoulders, and intervertebral disc disorders of the lumbosacral region.
On May 1, 2017 Dr. Alston treated appellant for adjustment disorder, trauma, and anxiety
stemming from mental health stressors in 2008 and 2010. She noted that any ongoing stress
triggers that he experienced would lead to anxiety and post-traumatic stress disorder. Dr. Alston
opined that appellant’s condition manifested itself in 2008 and was exacerbated in 2010. She
diagnosed chronic post-traumatic stress disorder and major depression and recommended a
medication regimen and scheduled therapy. In a June 27, 2017 letter, Dr. Alston indicated that
appellant’s mental health deficits were exacerbated by the accident that occurred on his way to
therapy on October 4, 2016. In a report dated June 27, 2017, she indicated that in 2016 Ms. Garr
diagnosed post-traumatic stress disorder and major depressive disorder and she noted that
psychological evaluations revealed appellant’s stress and depression started in 2008 and had been
exacerbated by further occurrences with the employing establishment. Dr. Alston opined that his
post-traumatic stress disorder did not have a predictable course of pathology. She noted that
appellant continued to ruminate about related events including the accident that occurred in 2017
on his way to therapy.

4

By decision dated July 25, 2017, OWCP denied appellant’s claim for compensation for the
period beginning April 13, 2017.4
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.5 Whether a particular injury causes an employee to be disabled
for employment and the duration of that disability are medical issues.6 The issue of whether a
particular injury causes disability for work must be resolved by competent medical evidence.7 To
meet this burden, a claimant must submit rationalized medical opinion evidence, based on a
complete factual and medical background, supporting a causal relationship between the alleged
disabling condition and the accepted injury.8
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment injury.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
for the period April 13, 2017 and continuing causally related to his accepted employment injury.
OWCP accepted appellant’s claim for adjustment disorder with anxious mood/anxiety.
Appellant stopped work on February 5, 2008 and worked intermittently thereafter. He stopped

4

On October 3, 2017 appellant appealed this present claim to the Board. On October 3, 2017 OWCP also issued a
decision setting aside the decision dated December 22, 2016 which denied his consequential back, neck, shoulder, and
knee injuries related to an automobile accident and remanded the matter for further medical development. By decision
dated November 22, 2017, it accepted appellant’s claim for consequential strain of the bilateral shoulders, cervical
spine, and lumbar spine. On December 22, 2017 OWCP granted him compensation for LWOP for the period
October 4, 2016 to October 27, 2017. As noted, the Board obtained jurisdiction over this matter on October 3, 2017.
Therefore, these decisions are null and void as the Board and OWCP may not simultaneously have jurisdiction over
the same issue in a case. OWCP may not issue a decision granting or denying disability compensation for the same
period of disability on appeal before the Board. See Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman,
43 ECAB 770 (1992); Douglas E. Billings, 41ECAB 880 (1990); 20 C.F.R. § 501.2(c)(3).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

C.S., Docket No. 08-2218 (issued August 7, 2009).

9

Sandra D. Pruitt, 57 ECAB 126 (2005).

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work completely on March 4, 2013 and claimed wage-loss compensation for total disability
commencing April 13, 2017.
Reports from Dr. Alston dated January 29 to April 10, 2017 noted that appellant continued
to struggle with trauma sequelae and cognitive ruminations that were related to the events that
occurred at work in 2008 and 2010 and he had regressed in his daily functioning. She diagnosed
post-traumatic stress disorder, chronic, major depressive disorder, moderate, and migraine. On
March 20, 2017 Dr. Alston noted that, despite ongoing therapeutic and mental health interventions,
appellant’s stress trauma continued to be unresponsive to positive change and his current state of
mental health functioning plateaued and appeared to be permanent. She diagnosed post-traumatic
stress disorder, chronic, major depressive disorder, moderate and migraine and opined that total
disability should be considered. However, Dr. Alston did not explain why appellant’s disability
beginning April 13, 2017 was attributable to his accepted conditions.10 Additionally, she partially
attributed appellant’s condition to post-traumatic stress disorder; however, OWCP has not
accepted that he developed post-traumatic stress disorder as a result of the accepted events of
January 28, 200811 and Dr. Alston not otherwise explained how the accepted adjustment disorder
with anxious mood/anxiety caused the claimed disability.
A May 1, 2017 report from Dr. Alston noted treating appellant for adjustment disorder,
trauma and anxiety stemming from mental health stressors in 2008 and 2010. She noted symptoms
of his post-traumatic stress disorder included sleeplessness, bouts of tearfulness, anger, depression,
emotional reactions, and hypervigilance which was still evident. Dr. Alston diagnosed chronic
post-traumatic stress disorder and major depression and recommended a medication regimen and
scheduled therapy. Similarly, in a June 27, 2017 letter, she indicated that appellant’s mental health
deficits were exacerbated by the accident that occurred on his way to therapy on October 4, 2016
and since that time appellant continued to face psychological struggles related to travel. In another
report dated June 27, 2017, Dr. Alston opined that his 2008 mental health instability continued to
manifest itself and was continually exacerbated by further occurrences with the employing
establishment. She opined that appellant’s post-traumatic stress disorder did not have a predictable
course of pathology. Even though Dr. Alston noted that he continued to experience symptoms of
major depression, she did not specifically explain how any accepted condition would cause
disability beginning April 13, 2017.12 Additionally, she attributed appellant’s condition at least
partially to post-traumatic stress disorder. However, as noted, OWCP has not accepted that
appellant developed post-traumatic stress disorder as a result of the accepted events of
January 28, 2008.13

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

Alice J. Tysinger, 51 ECAB 638 (2000).

12
See Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value).
13

For conditions not accepted by OWCP as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.
Alice J. Tysinger, 51 ECAB 638 (2000).

6

Appellant submitted a December 6, 2016 report from Dr. Hollandsworth who treated him
for muscular injuries sustained in a motor vehicle accident that occurred on October 4, 2016.
Reports from Dr. Paschall dated January 12 and August 2, 2017, noted appellant’s treatment for
head and neck pain after a motor vehicle accident and he diagnosed post-concussion syndrome,
cerebral concussion without loss of consciousness, migraine, and vestibulopathy of the left ear.
Similarly, reports from Dr. Brandon dated February 27 and March 28, 2017 noted appellant’s
treatment for bilateral shoulder pain, bursitis, and osteoarthritis of the bilateral shoulders which
developed after a motor vehicle accident in which he rolled his car. Likewise, in reports dated
March 3 and May 26, 2017, Dr. Greco treated appellant for injuries sustained to his shoulders,
neck, and back after a motor vehicle accident in October 4, 2016. However, these reports are of
limited probative value as they either predate the period of claimed disability or they do not
specifically attribute the period of claimed disability to the accepted conditions.14
Appellant also treated with and submitted reports of Ms. Garr who diagnosed posttraumatic stress disorder and major depressive disorder. However, Ms. Garr’s report is of no
probative value as she is not considered a physician as defined under FECA.15
Other diagnostic reports of record lack probative value as they do not otherwise address
how total disability beginning April 13, 2017 was due to the accepted conditions.16
The Board finds that the medical evidence of record is insufficient to establish that the
period of total disability beginning April 13, 2017 was caused or aggravated by the accepted
conditions of adjustment disorder with anxious mood/anxiety. Consequently, appellant has not
met his burden of proof.
On appeal, appellant asserts that OWCP ignored the diagnoses of post-traumatic stress
disorder and continued to request redundant medical documentation from his medical
professionals. The Board notes that matters pertaining to the acceptance of additional conditions
are not before the Board on appeal. OWCP did not issue a final decision on this issue prior to
appellant’s appeal on October 3, 2017 and therefore the Board does not have jurisdiction over the
matter.17
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.

14

See M.C., Docket No. 15-1762 (issued August 26, 2016) (medical reports are of limited probative value where
they either predate the claimed period of disability or do not specifically address whether the claimed disability is
causally related to the accepted condition).
15

The Board has held that medical evidence must be from a qualified physician. See S.S., Docket No. 13-1919
(issued May 16, 2014); 5 U.S.C. § 8101(2) (defines the term physician).
16

K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019).

17

See 20 C.F.R. § 501.2(c).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the period April 13, 2017 and continuing causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 13, 2019
Washington, DC

Christopher J. Godfrey, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
M.H., Appellant

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

Docket No. 11-1722
Issued: February 27, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 19, 2011 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated March 3, 2011 in file number xxxxxx335 finding that he had not
established an emotional condition as well as a May 10, 2011 nonmerit decision. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. In this regard, the Board notes that appellant attributed his emotional condition to
his accepted employment injuries developed and accepted in file number xxxxxx038. In a
narrative statement accompanying his claim for occupational disease, appellant stated that the
injuries he received at work and resulting surgeries and pain caused his stress, anxiety and
depression. He noted that he injured his left ankle in October 2002 resulting in three failed
surgeries and severe pain. Appellant also stated that he had pain in his left and right knees, right
shoulder, neck and back. In a report dated October 31, 2007, Dr. William G. Bernhardt, a Boardcertified family practitioner, states that appellant had a considerable amount of stress and anxiety
resulting from job-related injuries and surgeries. OWCP in its written decisions has repeatedly
noted that appellant asserts that he is suffering from stress, anxiety and depression due to his
accepted work injuries and that this aspect of his claim would have to be reviewed as a
consequential injury. However, it has not combined the claims or attempted to address this
central aspect of appellant’s emotional condition claim.

Proceedings before OWCP are not adversarial in nature and OWCP is not a disinterested
arbiter. It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.2
1

Due to OWCP’s failure to address the central aspect of appellant’s emotional condition
claim, that his stress resulted from his accepted employment-related injuries, the record contains
only limited information regarding appellant’s accepted employment injuries. The Board finds
that the files should be combined in order to properly review appellant’s claim.3
On remand, OWCP shall undertake proper assemblage of the case record including
combining all the files as directed by the Board and undertake development of appellant’s
emotional claim as a consequential injury of his accepted physical claims. Following this and
such further development as OWCP deems necessary, OWCP shall issue a de novo decision.
Accordingly,

1

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

2

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000).

2

IT IS HEREBY ORDERED THAT the May 10 and March 3, 2011 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: February 27, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF THE ARMY, FORT
HUNTER LIGGETT, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0549
Issued: November 22, 2021

Case Submitted on the Record

ORDER REVERSING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 22, 2021 appellant filed a timely appeal from a February 3, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate
Boards assigned Docket No. 21-0549.
On March 14, 1990 appellant then a 54-year-old civilian guard, filed a traumatic injury
claim (Form CA-1) alleging that on November 29, 1989 he slipped on ice in the parking lot,
injuring his left elbow and shoulder while in the performance of duty. OWCP accepted his claim
for left elbow and forearm contusion, brachial neuritis or radiculitis, and brachial plexus lesions.
Appellant subsequently sustained a recurrence of disability, but returned to work on April 22, 1997
in the private sector. OWCP paid him compensation for his loss of wage-earning capacity (LWEC)

1

The Board notes that following the February 3, 2021 decision, OWCP received additional evidence. 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.

beginning April 29, 1997.2 Appellant underwent OWCP-authorized surgeries on May 23, 1991
and September 28, 1993. He stopped his private sector work on April 31, 2006.
On November 9, 2020 OWCP forwarded a Federal Employees Retirement System
(FERS)/Social Security Administration (SSA) dual benefits calculation form to the SSA to
determine whether an offset of compensation benefits was required.
On November 18, 2020 OWCP received from SSA a completed FERS/SSA dual benefits
calculation form, which reported that appellant had been in receipt of age -related retirement
benefits since September 2001. The form listed his SSA age-related retirement benefit rates with
FERS and without FERS as follows: beginning September 2001 the monthly SSA rate with FERS
was $866.20 and without FERS was $799.20; beginning December 2001 appellant’s SSA rate with
FERS was $888.70 and without FERS was $819.90; beginning January 2002 his SSA rate with
FERS was $899.60 and without FERS was $833.70; beginning December 2002 appellant’s SSA
rate with FERS was $912.10 and without FERS was $845.30; beginning January 2003 his SSA
rate with FERS was $922.60 and without FERS was $ 858.90; beginning December 2003
appellant’s SSA rate with FERS was $941.90 and without FERS was $876.90; beginning
January 2004 his SSA rate with FERS was $952.50 and without FERS was $891.10 ; beginning
December 2004 appellant’s SSA rate with FERS was $978.20, and without FERS was $915.10;
beginning January 2005 his SSA rate with FERS was $989.70, and without FERS was $930.20;
beginning December 2005 appellant’s SSA rate with FERS was $1,030.20 and without FERS was
$968.30; beginning January 2006 his SSA rate with FERS was $1,041.40 and without FERS was
$983.50; beginning December 2006 appellant’s SSA rate with FERS was $1,075.70, and without
FERS was $1,015.90; beginning January 2007 his SSA rate with FERS was $1,075.70, and without
FERS was $1,018.70; beginning December 2007 appellant’s SSA rate with FERS was $1,100.40
and without FERS was $1,042.10; beginning December 2008 his SSA rate with FERS was
$1,164.20 and without FERS was $1,102.50; beginning December 2011 appellant’s SSA rate with
FERS was $1,206.10, and without FERS was $1,142.10; beginning December 2012 his SSA rate
with FERS was $1,226.60 and without FERS was $1,161.50; beginning December 2013
appellant’s SSA rate with FERS was $1,244.90, and without FERS was $1,178.90; beginning
December 2014 his SSA rate with FERS was $1,266.00 and without FERS was $1,198.90;
beginning December 2016 appellant’s SSA rate with FERS was $1,269.70, and without FERS was
$1,202.40; beginning December 2017 his SSA rate with FERS was $1,295.00 and without FERS
was $1,226.40; beginning December 2018 appellant’s SSA rate with FERS was $1,331.20, and
without FERS was $1,260.70; and beginning December 2019 his SSA rate with FERS was
$1,352.40 and without FERS was $1,280.80.
On December 14, 2020 OWCP made a preliminary overpayment determination, finding
that appellant received an overpayment of compensation in the amount of $14,747.34 for which
he was without fault, because it failed to reduce his FECA wage-loss compensation for the period
September 1, 2001 through December 5, 2020 to offset his SSA age-related retirement benefits
attributable to federal service. It requested that he complete an overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documentation to determine a
2

Appellant consistently reported his return to private sector work on financial disclosure statements (Form
CA-1032) beginning August 13, 2002. On August 21, 2003 OWCP indicated that appellant was receiving
compensation based on an LWEC with a pay rate effective date of September 30, 1992.

2

reasonable repayment schedule and advised that he could request waiver of recovery. OWCP
further requested that appellant provide supporting financial documentation, including copies of
income tax returns, bank account statements, bills, pay slips, and any other records to support
income and expenses. Additionally, it provided an overpayment action request form and notified
him that within 30 days of the date of the letter, he could request a fina l decision based on the
written evidence or a prerecoupment hearing.
OWCP included a FERS offset calculation worksheet. It determined the overpayment
amount by multiplying the daily FERS offset amount by the number of day s in each period from
September 1, 2001 through October 11, 2020, resulted in a total overpayment of $14,747.34.
OWCP found that from September 1 to November 30, 2001, appellant received an overpayment
in the amount of $201.00; from December 1 through 31, 2001 he received an overpayment in the
amount of $70.31; from January 1 through November 30, 2002 appellant received an overpayment
in the amount of $725.62; from December 1 through 31, 2002 he received an overpayment in the
amount of $68.27; from January 1 through November 30, 2003 appellant received an overpayment
in the amount of $701.40; from December 1 through 31, 2003 he received an overpayment in the
amount of $66.43; from January 1 to November 30, 2004 appellant received an overpayment in
the amount of $678.10; from December 1 through 31, 2004 he received an overpayment in the
amount of $64.49; from January 1 through November 30, 2005 appellant received an overpayment
in the amount of $655.15; from December 1 through 31, 2005 he received an overpayment in the
amount of $63.26; from January 1 through November 30, 2006 appellant received an overpayment
in the amount of $637.54; from January 1 to November 30, 2006, he received an overpayment in
the amount of $637.54; from December 1 through 31, 2006 appellant received an overpayment in
the amount of $61.11; from January 1 through November 30, 2007 he received an overpayment in
the amount of $627.63; from December 1, 2007 through November 30, 2008 appellant received
an overpayment in the amount of $703.44; from December 1, 2008 through November 30, 2009
he received an overpayment in the amount of $742.43; from December 1, 2009 through
November 30, 2010 appellant received an overpayment in the amount of $742.43; from
December 1, 2010 through November 30, 2011 he received an overpayment in the amount of
$742.43; from December 1, 2011 through November 30, 2012 appellant received an overpayment
in the amount of $772.22; from December 1, 2012 through November 30, 2013 he received an
overpayment in the amount of $783.35; from December 1, 2013 through November 30, 2014
appellant received an overpayment in the amount of $794.18; from December 1, 2014 through
November 30, 2015 he received an overpayment in the amount of $807.41; from December 1,
2015 through November 30, 2016 appellant received an overpayment in the amount of $809.62;
from December 1, 2016 through November 30, 2017 he received an overpayment in the amount
of $809.82; from December 1, 2017 through November 30, 2018 appellant received an
overpayment in the amount of $825.46; from December 1, 2018 through November 30, 2019 he
received an overpayment in the amount of $848.32; and from December 1, 2019 through
October 11, 2020 appellant received an overpayment in the amount of $745.90 for a total
overpayment of $14,747.34.
On January 4, 2021 appellant requested a decision based on the written evidence, as well
as waiver of recovery of the overpayment.
OWCP received a partially completed Form OWCP-20 on January 11, 2021, wherein
appellant advised that he had monthly income of $2,551.83 including SSA benefits of $1,207.00,

3

and FECA benefits of $648.83. Appellant listed monthly expenses of $370.00 for housing,
$300.00 for food, $100.00 for clothing, $300.00 for utilities, and $150.00 for miscellaneous
household expenses, medical and dental expenses, automobile expenses, and personal necessities.
He listed a second mortgage of $518.00 per month, which yielded total monthly expenses of
$1,738.00. Appellant listed his assets including a second house worth $300,000.00, cash of
$50.00, checking account balance of $2,000.00, and $15,000.00 in other personal property and
funds. He listed total funds of $1,750.00. Appellant did not provide any additional financial
information.
By decision dated February 3, 2021, OWCP finalized the preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $14,747.23 for the period September 1, 2001 through December 5, 2020.3 It found appellant
without fault in the creation of the overpayment, but denied waiver of recovery as appellant did
not fully complete the Form OWCP-20 and did not provide supporting financial documentation.
OWCP required recovery of the overpayment by deducting 25 percent or $174.00 from appellant’s
continuing compensation payments every 28 days.
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of compensation.
OWCP determined that appellant received an overpayment of compensation during the
period September 1, 2001 through December 5, 2020, because he concurrently received FECA
compensation and SSA age-related retirement benefits without an appropriate offset. The case
record, however, indicates that he stopped working at the employing establishment prior to
April 29, 1997 4 and that he retired from private sector employment on April 31, 2006. There is no
evidence of record establishing that appellant had retirement coverage under FERS.
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service. 5 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 6

3

The Board notes that, while the final overpayment determination covers the period beginning
“September 2, 2001.” However, this appears to be a typographical error as the preliminary notice of overpayment and
the FERS offset calculation worksheet cover the period beginning September 1, 2001.
4

The case record before the Board does not contain any documents received or generated by OWCP prior to
May 28, 2002.
5

20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
6

FECA Bulletin No. 97-09 (February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

4

As OWCP has not established that appellant received an overpayment of compensation
during the period September 1, 2001 through December 5, 2020, the Board finds that OWCP has
not met its burden of proof. 7
IT IS HEREBY ORDERED THAT the February 3, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7

In light of the Board’s findings regarding the fact and amount of the overpayment, the remaining issues of waiver
and recovery of the overpayment are rendered moot.

5