United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
U.C., Appellant
and
NUCLEAR REGULATORY COMMISSION,
REGION I, King of Prussia, PA, Employer
__________________________________________

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Appearances:
Analese B. Dunn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1753
Issued: June 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019
nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more than one
year has elapsed from OWCP’s last merit decision, dated August 18, 2006, to the filing of this
appeal,2 pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(d)(2) (2008).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On March 31, 2005 appellant, then a 62-year-old former reactor systems engineer, filed an
occupational disease claim (Form CA-2) alleging that he suffered “a mysterious illness” resulting
in multiple medical conditions due to exposure to radiation while in the performance of duty. He
indicated that he first became aware of his conditions and their relationship to his federal
employment on April 25, 2002. Appellant retired on disability effective January 28, 2000.
By decision dated March 10, 2006, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his multiple medical conditions were caused,
aggravated, accelerated or precipitated by factors of employment, as alleged
On April 8, 2006 appellant requested a review of the written record by an OWCP hearing
representative and submitted additional evidence. The employing establishment acknowledged
that appellant had repeatedly visited reactor sites in the performance of his duties, but the dosimetry
readings supported only minimal, if any exposure.
By decision dated August 18, 2006, an OWCP hearing representative affirmed the
March 10, 2006 OWCP decision.
On August 21, 2007 appellant requested reconsideration. He submitted numerous
arguments and submitted multiple documents, including medical reports.
In a September 6, 2007 letter to the employing establishment, OWCP noted that appellant
had filed a request for reconsideration which warranted a merit review. The employing
establishment was invited to submit any pertinent supporting evidence or arguments within 20
days. No response was received from the employing establishment.
By decision dated November 19, 2007, OWCP denied appellant’s request for
reconsideration of the merits of the claim. It found the medical evidence was repetitious and/or
irrelevant to the matter at hand and the reconsideration request neither raised substantive legal
questions nor included new and relevant evidence sufficient to warrant a review of the August 18,
2006 decision.

4

Docket No. 16-0855 (issued December 8, 2017).

2

On March 4, 2008 OWCP received appellant’s February 26, 2008 letter requesting the
status of his request for reconsideration of the August 18, 2006 denial of his claim. In a March 10,
2008 letter, it advised him that it had issued its decision on November 19, 2007.
On June 4, 2014 appellant requested reconsideration. He alleged that he never received
OWCP’s November 19, 2007 decision. Appellant provided additional arguments and new
evidence. OWCP did not address the request for reconsideration at that time.
In letter received by OWCP on June 25, 2015, appellant again asserted that he never
received the November 19, 2007 decision or any response to his letter asking the status of it.
Additional evidence and arguments were submitted. OWCP treated this correspondence as a
request for reconsideration.
By decision dated September 23, 2015, OWCP denied appellant’s reconsideration request
on the grounds that it was untimely filed and failed to demonstrate clear evidence of error. It noted
that he had not provided evidence to support his contentions that an error was committed by OWCP
in its August 18, 2006 decision.
On March 17, 2016 appellant, through counsel, filed an appeal with the Board. By decision
dated December 8, 2017, the Board affirmed OWCP’s September 23, 2015 nonmerit decision.5
The Board found the record devoid of evidence to rebut the presumption that appellant had
received OWCP’s November 19, 2007 nonmerit decision in due course. The Board also found
that OWCP properly denied his request for reconsideration at it was untimely filed and that the
evidence and arguments failed to demonstrate clear evidence of error of OWCP’s August 18, 2006
decision. With regard to evidence previously of record, the Board found that appellant failed to
explain how such evidence raised a substantial question as to the correctness of OWCP’s decision.
Additionally, the new evidence neither addressed the cause of his condition, nor related his
symptoms to a work event, exposure to radiation.
On December 10, 2018 appellant requested “reconsideration” of the Board’s December 8,
2017 decision.6 Counsel argued that OWCP’s hearing representative erred in denying appellant’s
claim in the August 18, 2006 decision, which he acknowledged was the last merit decision in
appellant’s case file. He argued that the hearing representative did not analyze the evidence per
the “relative circumstances -- unknown etiology” physician and relied upon speculative employing
establishment information. Counsel set forth medical evidence he believed that established the
causal relationship component of the claim and identified evidence which he deemed speculative
pertaining to the amount of appellant’s radiation exposure and causal relationship.

5

Id. The Board denied appellant’s petition for reconsideration of its December 8, 2017 decision on
August 21, 2018. The Board’s decision dated December 8, 2017 therefore became final 30 days after issuance and is
not subject to further review. 20 C.F.R. § 501.6(d). See P.H., Docket No. 19-1354 (issued March 13, 2020); G.G.,
Docket No. 18-1074 (issued January 7, 2019).
6

Id. On August 24, 2018 the Board issued an Order Dismissing Appeal as the Clerk of the Appellate Boards
inadvertently assigned a new docket number to a petition for reconsideration of the Board’s December 8, 2017
decision in Docket No. 16-0855. See Docket No. 18-0471 (issued August 24, 2018).

3

Counsel further contended OWCP erred in its November 19, 2007 decision denying
appellant’s reconsideration request without conducting a merit review. She indicated that
appellant had provided timely, new, relevant, and pertinent evidence, which required a merit
review. Counsel set forth the medical evidence he deemed pertinent which warranted a merit
review. She also contended that OWCP’s September 6, 2007 letter to the employing establishment
specifically noted that, a merit review would be conducted, but as no merit review was provided,
this violated the procedural requirement to perform a merit review after the evidence warranted a
merit review and development of the evidence had begun. Counsel noted the November 19, 2007
decision contradicted the September 6, 2007 determination that a merit review was warranted. She
also asserted that his December 5, 2018 letter requesting reconsideration was within one year of
the December 8, 2017 decision.
By decision dated March 8, 2019, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.7 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.8 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.9 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).10 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.11
OWCP may not deny a request for reconsideration solely because it was not timely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.12 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,

7

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

10

Id. at Chapter 2.1602.4(b) (February 2016).

11

See R.L., Docket No. 18-0496 (issued January 9, 2019).

12

See 20 C.F.R. § 10.607(b); G.G., supra note 5.

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notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.13
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.14 The Board
notes that clear evidence of error is intended to represent a difficult standard.15 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.16 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.17 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.18 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.19 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.20
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The last merit OWCP decision issued in this case was dated August 18, 2006. Appellant’s
latest request for reconsideration was received by OWCP on December 10, 2018 which postdated
OWCP’s August 18, 2006 merit decision by over 12 years. Because more than one year elapsed
since the last merit decision, his December 10, 2018 request for reconsideration was untimely
filed.21 Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in
determining that he failed to establish a medical condition causally related to the claimed
exposure.22

13

Id. at § 10.607(b); supra note 9 at Chapter 2.1602.5(a) (February 2016).

14

G.G., supra note 5.

15

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 11.

16

E.B., Docket No. 18-1091 (issued December 28, 2018).

17

J.W., Docket No. 18-0703 (issued November 14, 2018).

18

P.L., Docket No. 18-0813 (issued November 20, 2018).

19

See F.D., Docket No. 19-1663 (issued March 10, 2020); A.F., 59 ECAB 714 (2008); D.G., 59 ECAB 455 (2008).

20

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

21

20 C.F.R. § 10.607(a); F.D., see supra note 19.

22

Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

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The Board’s decision of December 8, 2017 affirmed OWCP’s September 23, 2015
nonmerit decision which denied appellant’s request for reconsideration as it was untimely filed
and failed to demonstrate clear evidence of error. On appeal and before OWCP counsel argued
that appellant had timely requested reconsideration following the Board’s December 8, 2017
decision. OWCP procedures require that a request for reconsideration be received within one year
of a merit decision. A right to reconsideration within one year accompanies any subsequent merit
decision on the issues. This includes any merit decision by the Board.23 However, the
December 8, 2017 decision of the Board was not a merit decision and therefore did not extend the
one year time limitation.
OWCP denied appellant’s claim finding that he did not meet his burden of proof to
establish a medical condition causally related to the claimed exposure. On August 18, 2006 an
OWCP hearing representative affirmed the denial of appellant’s occupational disease claim as he
had not established that the amount of radiation he was exposed to was sufficient to establish his
diagnosed conditions. The hearing representative specifically found that none of the physicians
who noted a causal relationship were provided with the official dosimetry records and the evidence
of record did not substantiate that appellant had excessive radiation exposure or long-term
radiation exposure. Counsel argued that the hearing representative failed to analyze the evidence
per the “relative circumstances -- unknown etiology” doctrine and relied upon speculative
employing establishment information. While she set forth medical evidence he believed
established the causal relationship component of the claim, counsel failed to explain how such
evidence raised a substantial question as to the correctness of OWCP’s decision.24 Evidence that
does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient
to demonstrate clear evidence of error.25 It is not enough merely to establish that the evidence
could be construed so as to produce a contrary conclusion.26 Further, while counsel deemed the
employing establishment’s letters and evidence as speculative pertaining to the amount of
appellant’s radiation exposure and causal relationship, she also did not explain how this argument
raised a substantial question as to the correctness of OWCP’s August 18, 2006 decision which
relied on official dosimetry records. Appellant submitted no other factual documents in support
of his argument that, on their face, demonstrated that OWCP’s denial of the claim was erroneous
or raised a substantial question as to the correctness of OWCP’s determination.27 The Board has
held that the term clear evidence of error is intended to represent a difficult standard.28 As such,
the Board finds that this argument is insufficient to demonstrate clear evidence error in OWCP’s
August 18, 2006 decision.
Counsel offered arguments regarding alleged error in OWCP’s November 19, 2007
decision denying reconsideration without merit review. The Board noted in its December 8, 2017
23

T.N., Docket No. 18-1613 (issued April 29, 2020); supra note 9 at Chapter 2.1602.4 (February 2016).

24

F.D., see supra note 19.

25

Supra note 16.

26

J.W., Docket No. 18-0703 (issued November 14, 2018).

27

See P.O., Docket No. 13-0092 (issued April 4, 2013).

28

M.P., supra note 15.

6

decision that the underlying issue was whether appellant had established clear evidence of error in
the last merit decision dated August 18, 2006. Counsel argued that OWCP erred in not providing
a merit review contradicted a September 6, 2007 letter to the employing establishment that a merit
review was warranted; and the November 19, 2007 decision used an incorrect standard of review
by requiring substantive evidence to warrant a merit review. While OWCP’s September 6, 2007
letter to the employing establishment indicated that appellant’s application for reconsideration
warranted a merit review of the case, this letter, on its face, does not show clear evidence of error
of OWCP’s August 18, 2006 decision. Furthermore, counsel’s arguments pertaining to the
evidence submitted and the standard of review does not demonstrate that OWCP’s denial of
appellant’s claim was erroneous or raise a substantial question as to the correctness of OWCP’s
August 18, 2006 denial of appellant’s claim. As noted, the term clear evidence of error is intended
to represent a difficult standard.29 Additionally, this evidence was before the Board at the time of
its last decision.
The Board finds that appellant has not raised an argument or submitted positive, precise,
and explicit evidence that manifests on its face that OWCP committed an error in the denial of his
claim.30 Appellant has therefore not provided evidence of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s August 18, 2006 decision. Thus, the Board
finds that the request failed to demonstrate clear evidence of error.31
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it was
untimely filed and failed to demonstrate clear evidence of error.

29

Id.

30

See J.V., Docket No. 18-0963 (issued February 13, 2020); S.P., Docket No. 17-1708 (issued February 23, 2018).

31

See G.B., Docket No. 19-1762 (issued March 10, 2020); M.P., Docket No. 19-0674 (issued December 16, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 10, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, WI, Employer
__________________________________________

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

Docket No. 10-1763
Issued: March 16, 2011

Case Submitted on the Record

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from a May 21, 2010 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 25 percent
impairment of his left leg for which he received a schedule award.
FACTUAL HISTORY
On January 12, 2005 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim alleging that he injured his left knee on the ice and snow while in the performance of duty.
On March 2, 2006 the Office accepted his claim for sprain/strain of the medial collateral
ligament of the left knee. It subsequently accepted aggravation of left knee degenerative
osteoarthritis, infection and inflammatory reaction due to an internal joint prosthesis on the left.
On March 2, 2007 appellant underwent an authorized total left knee arthroplasty, which was

performed by his treating physician, Dr. Jeffrey R. Stitgen, a Board-certified orthopedic surgeon.
On March 20, 2007 Dr. Stitgen performed a wound dehiscence on the left knee with irrigation,
debridement and closure. Appellant returned to work with restrictions on the walking he could
perform.
In a February 25, 2008 report, Dr. Stitgen noted that appellant’s left knee was doing
“fairly well.” On examination, there was full extension and flexion to about 110 degrees.
Appellant reported occasional pain over the lateral aspect of the knee. Dr. Stitgen recommended
stretching exercises.
On July 20, 2009 appellant requested a schedule award.
In a letter dated August 24, 2009, the Office advised appellant that additional factual and
medical evidence was needed to support his claim. It advised him that his physician should
utilize the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(6th ed. 2009) (hereinafter, A.M.A., Guides) and provide medical rationale to support an
impairment rating.
In an October 9, 2009 report, Dr. Stitgen advised that appellant reached maximum
medical improvement on February 25, 2008, his last office visit. Appellant had a total left knee
replacement on March 20, 2007 with some permanent restrictions. Dr. Stitgen was not able to
walk long distances in grass and needed a postal route that was on paved surfaces. He stated that
appellant’s range of motion to 110 degrees represented a loss of flexion. Appellant had
occasional aching pain over the lateral side of his knee. Dr. Stitgen found that appellant had a 50
percent permanent impairment based on the total knee arthroplasty.
On February 19, 2010 the Office requested that the Office medical adviser review the
medical evidence.
In a February 22, 2010 report, the Office medical adviser reviewed appellant’s history of
injury and medical treatment. He noted that Dr. Stitgen did not cite to any tables of the A.M.A.,
Guides to explain how he arrived at his impairment rating. The Office medical adviser noted
that appellant had generally done well following his surgery. His work often required that he
stand for 10 hours at a time with complaint of an occasional ache on the lateral side of the knee.
The report from physical examination found that all incisions had healed, there was no evidence
of infection and appellant had range of motion from 0 to 110 degrees. The Office medical
adviser referred to the sixth edition of the A.M.A., Guides, Table 16-3, the knee regional grid.
For a knee replacement, appellant fell into a Class 2 category with a fair or good result.1 The
Office medical adviser selected the default C grade that represented 25 percent impairment. He
advised that there was no change to the rating with the use of the net adjustment formula. The
Office medical adviser found that appellant had 25 percent impairment of to the left leg and
reached maximum medical improvement on February 25, 2008, one year post surgery.
On May 21, 2010 the Office granted appellant a schedule award for 25 percent permanent
impairment of the left lower extremity. The award covered 72 weeks of compensation from
February 25, 2008 to July 12, 2009.
1

A.M.A., Guides 511.

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body. The Act, however, does not specify the manner by which the percentage
loss of a member, function or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. The implementing regulations have adopted the A.M.A., Guides, as
the appropriate standard for evaluating schedule losses.2 Effective May 1, 2009, schedule
awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE) and clinical studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).3
ANALYSIS
In a report dated October 9, 2009, Dr. Stitgen found that appellant had 50 percent
impairment based on his total left knee arthroplasty. However, he did not refer to any edition of
the A.M.A., Guides, to explain how he arrived at this conclusion. It is well established that when
an attending physician’s report provides an estimate of impairment with no explanation as to
how the estimate is based upon the A.M.A., Guides, it is of reduced probative value.4 The Office
may follow the advice of its medical adviser where he or she has properly applied the A.M.A.,
Guides.5
On February 22, 2010 the Office medical adviser reviewed Dr. Stitgen’s findings from
examination of appellant and discussed the relevant tables in the sixth edition of the A.M.A.,
Guides. He followed the assessment formula at Chapter 16, Table 16-3, the knee regional grid to
rate impairment to appellant’s left knee. The Office medical adviser noted that appellant fell into
the category for a knee replacement, or Class 2 with a fair or good result.6 He selected the
C value, with a default value of 25 percent impairment. The Office medical adviser noted that
the findings on appellant’s examination were generally unremarkable and determined the net
adjustment formula did not change the impairment rating. He concluded that appellant had 25
percent impairment of the left leg. The Office medical adviser agreed that appellant reached
maximum medical improvement on February 25, 2008, the date noted by Dr. Stitgen which was
one year after surgery.

2

20 C.F.R. § 10.404 (2009).

3

A.M.A., Guides 521. See generally A.M.A., Guides 494-531; J.B., Docket No. 09-2191 (issued May 14, 2010).

4

See L.J., 59 ECAB 280 (2007).

5

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
6

A.M.A., Guides 511.

3

The Board finds that the Office medical adviser’s report constitutes the weight of medical
opinion. The record does not contain any evidence demonstrating greater impairment to the left
leg in accordance with the sixth edition of the A.M.A., Guides. Appellant has not established
that he has more than 25 percent impairment of the left lower extremity.
The number of weeks of compensation provided under section 8107(c)(2) for 100 percent
loss of use of the leg is 288 weeks.7 As appellant was found to have 25 percent impairment, he
was appropriately awarded 25 percent of 288 weeks or 72 weeks of compensation.8
CONCLUSION
The Board finds that appellant has 25 percent permanent impairment of his left leg for
which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2011
Washington, DC

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

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

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

7

See 5 U.S.C. § 8107(c)(2).

8

See Shalanya Ellison, 56 ECAB 150 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 09-322
Issued: July 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 13, 2008 appellant filed a timely appeal from an October 8, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied her claim. Pursuant to
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 met her burden of proof to establish that she sustained an
injury in the performance of duty on May 19, 2008.
FACTUAL HISTORY
On August 25, 2008 appellant, a 58-year-old information technology specialist, filed a
traumatic injury claim (Form CA-1) for facial scratches and bruises on both of her knees. She
attributed her condition to a May 19, 2008 incident when, while commuting to work, as she
exited the L’Enfant Plaza Virginia Railroad Express station, she fell face-first onto the ground.
Appellant alleged that she sustained a deep scratch on her forehead, nose, the right side of her

chin and eyes. She alleged that her whole face and both knees were bruised and swollen. The
employing establishment controverted the claim noting that appellant was arriving late to work
on the day in question. The employing establishment also noted that appellant’s alleged injury
did not occur on government time or property, but that appellant fell on VRE property while she
was transferring from a VRE train to a metro train on her way into work.
Appellant submitted no other evidence in support of her claim and by letter dated
September 3, 2008 the Office notified her that the evidence of record was insufficient to support
her claim. The Office provided a list of the type of evidence required to establish her claim.
Responding to the Office’s September 3, 2008 letter, appellant submitted medical records
from Doctors Community Hospital concerning treatment she received on May 8, 2008. None of
the records were signed by a physician. One of the documents in this series of records stated that
appellant had been diagnosed with shoulder strain, a minor head injury, neck strain and a scrape
of the outer skin layers.
Appellant submitted a medical note, dated May 19, 2008, signed by John D. Gilbert,
certified physician’s assistant, prescribing Motrin, as well as two May 20, 2008 medical notes
signed by Dr. John F. Mills, Board-certified in family medicine, prescribing medications and an
electroencephalogram.
Appellant submitted no other evidence in support of her claim and by decision dated
October 8, 2008 the Office denied appellant’s claim because the evidence of record was
insufficient to establish that she sustained an injury as defined by the Act.1 While the Office
noted that the evidence of record established that the claimed event occurred the Office denied
her claim because the evidence of record lacked a diagnosed medical condition that could be
connected to the identified employment-related event by a physician.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim. These elements include the fact that the individual is an employee
of the United States within the meaning of the Act, that the claim was filed within the applicable

1

On appeal, appellant submitted additional medical evidence consisting of medical reports from several
physicians and an October 28, 2008 accommodation letter from the Department of Heath and Human Services. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued
January 7, 2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the Office at
the time of its final decision.) As this evidence was not part of the record when the Office issued its previous
decision, the Board may not consider it for the first time as part of appellant’s appeal.
2

5 U.S.C. §§ 8101-8193.

2

time limitation, that an injury was sustained while in the performance of duty3 as alleged and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
Regarding performance of duty, the Board has recognized as a general rule that offpremises injuries sustained by employees having fixed hours and places of work, while going to
or coming from work, are not compensable as they do not arise out of and in the course of
employment. Such injuries are merely the ordinary, nonemployment hazards of the journey
itself, which are shared by all travelers.6 Certain exceptions to this rule have developed where
the hazards of the travel are dependent on particular situations: (1) where the employment
requires the employee to travel on the highways; (2) where the employer contracts to and does
furnish transportation to and from work; (3) where the employee is subject to emergency call as
in the case of firemen; and (4) where the employee uses the highway to do something incidental
to his employment, with the knowledge and approval of the employer.7
Professor Larson, in his treatise on workers’ compensation, notes that coverage is usually
afforded in cases involving a deliberate and substantial payment for the expense of travel, or the
provision of an automobile under the employee’s control.8 However, under most circumstances,
the travel must be sufficiently important in itself to be regarded as part of the service performed
and therefore within the performance of the employee’s duties.9 The Office’s procedures also

3

The term “while in the performance of duty” has been interpreted to be the equivalent of the commonly found
prerequisite in workers’ compensation of arising out of and in the course of employment. The phrase “in the course
of employment” is recognized as relating to the work situation and more particularly, relating to elements of time,
place and circumstance. In the compensation field, to occur in the course of employment, an injury must occur:
(1) at a time when the employee may be reasonably said to be engaged in the master’s business; (2) at a place where
she may reasonably be expected to be in connection with the employment; and (3) while he was reasonably fulfilling
the duties of his employment or engaged in doing something incidental thereto. Robert W. Walulis, 51 ECAB
122 (1999). This alone is not sufficient to establish entitlement to benefits for compensability. The concomitant
requirement of an injury arising out of the employment must be shown and this encompasses not only the work
setting but also a causal concept, the requirement being that the employment caused the injury. In order for an
injury to be considered as arising out of the employment, the facts of the case must show substantial employer
benefit is derived or an employment requirement gave rise to the injury. Cheryl Bowman, 51 ECAB 519 (2000);
Charles Crawford, 40 ECAB 474 (1989).
4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Mary Kokich, 52 ECAB 239 (2001); Eileen R. Gibbons, 52 ECAB 209 (2001).

7

Dennis L. Forsgren (Linda N. Forsgren), 53 ECAB 174 (2001); Gabe Brooks, 51 ECAB 184 (1999); see Mary
Margaret Grant, 48 ECAB 969 (1997); see generally A. Larson, The Law of Workers’ Compensation § 13.01
(2000) (explaining the coming and going rule).
8

Larson, supra note 7 at § 14.07(1) (2000); see also Mary Margaret Grant, supra note 7.

9

Larson, supra note 7 at § 14.07(3).

3

provide an exception for employees required to travel during a curfew established by local,
municipal, county or state authorities because of civil disturbances or for other reasons.10
ANALYSIS
While the Office denied appellant’s claim on the grounds that she had not established an
injury causally related to her fall, the Board finds that appellant has not established that she was
in the performance of duty at the time of the fall. Appellant was injured on May 19, 2008 when
she fell while exiting the L’Enfant Plaza VRE station. The injuries occurred during appellant’s
morning commute and during a time when appellant was not on government time, as she had not
reached her place of employment, or government property. Generally, an injury occurring on
such a commute would not be covered under the Act unless an exception to the coming and
going rule applies.11 Appellant submitted no evidence establishing that her travel on the VRE or
presence at the L’Enfant Plaza VRE station was a requirement of her employment. Therefore,
she has not established an exception to the coming and going rule in this regard. As appellant
did not allege facts establishing any of the other exceptions to the rule were applicable, she
established no exception to the coming and going rule and, further, that her injuries were nothing
more than ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.
Appellant has not established that the May 19, 2008 injury occurred in the performance
of duty. She established no exception to the coming and going rule.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on May 19, 2008.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(f) (August 1992).
In such cases, the official superior should be requested to submit: (a) the reason the employee was requested to
report for duty; (b) whether other employees were given administrative leave because of the curfew; and (c) whether
the injury resulted from a specific hazard caused by the imposition of the curfew, such as an attack by rioting
citizens.
11

See Jimmie Brooks, 54 ECAB 248 (2002). See also Jon Louis Van Alstine, 56 ECAB 136 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the October 8, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: July 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, NEWARK - LIBERTY
INTERNATIONAL AIRPORT, Newark, NJ,
Employer
__________________________________________

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

Docket No. 08-202
Issued: May 8, 2008

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 October 22, 2007 appellant filed a timely appeal from the September 17, 2007
decision of the Office of Workers’ Compensation Programs finding an overpayment of
compensation in the amount of $1,137.05, that waiver was not warranted as he was with fault
and that recovery should be accomplished by a lump-sum payment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,137.05; (2) whether the Office properly
determined that appellant was at fault in the creation of the overpayment and therefore not
entitled to waiver; and (3) whether the Office properly required payment of the overpayment by
submission of a check in the entire amount. On appeal, appellant contended that he did not have

an opportunity to respond to the Office’s preliminary determination of the creation of an
overpayment because he did not receive the July 24, 2007 notice.
FACTUAL HISTORY
On October 26, 2006 appellant, then a 27-year-old transportation security screener,
injured his lower back when he tripped over a carpet while carrying a bag to the luggage belt.
He stopped work the day of his injury. The Office accepted appellant’s claim for lumbosacral
nerve impingement, spinal stenosis and lumbosacral strain. On February 27, 2007 he underwent
a microsurgical laminotomy and disc excision at L5-S1.
On February 28, 2007 appellant was placed on the periodic rolls and began receiving
compensation in the amount of $1,883.28 every four weeks. After deductions for health benefit
premiums, his payment was $1,660.00. Appellant authorized the Office to directly deposit
payment into his bank account. In the letter notifying him of this compensation, which was sent
to the address of record in Passaic, New Jersey, the Office stated:
“In order to avoid an overpayment of compensation, NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU RETURN TO WORK. Each payment made
through the Office’s automated system will include the period for which payment
is made. If you have worked for any portion of this period, you must return the
check to this Office. Otherwise, an overpayment may result.” (Emphasis in the
original.)
On April 10, 2007 appellant stated that he no longer wanted heath insurance premiums
deducted from his wage-loss compensation. During the period April 15 to May 12, 2007, the
Office stopped deducting these charges and appellant began receiving net payments of
$1,872.78.
On May 22, 2007 Dr. Steven Dorskey, a Board-certified orthopedic surgeon, released
appellant to work in a light-duty position. On May 24, 2007 appellant accepted and began
working in a position as a modified transportation security officer.
On June 21, 2007 the Office learned from a medical report that appellant had returned to
work. The Office terminated appellant’s wage-loss compensation effective May 24, 2007 and
determined that he had received disability compensation for 17 days during which he worked.
By notice dated July 24, 2007, the Office informed appellant of its preliminary
determination that he had been overpaid in the amount of $1,137.05 and that he was at fault in
the creation of the overpayment. The Office found that, beginning February 18, 2007, appellant
received payments from the periodic rolls, which were electronically deposited into his bank
account. It noted that appellant was paid for the full period May 13 to June 9, 2007, although he
returned to work on May 24, 2007. The Office found that appellant did not notify the Office that
he had returned to work and did not return the compensation received for the period May 25 to
June 9, 2007. Because appellant was aware or should have been reasonably aware, that he was
not entitled to compensation benefits after returning to work, the Office found that he was at
fault in the creation of the overpayment. It found that he was aware or should have been aware

2

that he was not entitled to the entire payment because he had been informed that he should report
his return to work to avoid overpayment and the date and amount of the payment appeared on a
statement from his financial institution. The Office provided an overpayment action request
form explaining the steps appellant could take if he disagreed with the preliminary finding and
overpayment recovery questionnaire. The notice was mailed to the address of record in Passaic,
New Jersey. Appellant did not respond to the preliminary determination.
By decision dated September 17, 2007, the Office found that appellant had received an
overpayment of $1,137.05 and that he was at fault in its creation. The Office noted that appellant
received disability compensation totaling $1,872.78 for the period May 13 to June 9, 2007, but
should have received only $753.73 because he returned to work on May 24, 2007. The Office
found that there was no evidence in the record to support that appellant was not at fault in the
creation of the overpayment, that collecting the overpayment would defeat the purpose of the
Federal Employees’ Compensation Act or that collecting the overpayment would be against
equity and good conscience. The Office stated that appellant should return the overpayment by
writing a check for the full amount.
LEGAL PRECEDENT -- ISSUE 1
The Act provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.1
The Office regulations state that compensation for wage loss due to disability is available only
for periods during which an employee’s work-related medical condition prevents him or her
from earning the wages earned before the work-related injury.2
ANALYSIS -- ISSUE 1
The Office placed appellant on the periodic rolls on February 28, 2007 and began issuing
him wage-loss compensation payments in the net amount of $1,660.00 every 28 days. On
May 12, 2007 appellant’s net payment was increased to $1,872.78 per period when the Office
stopped deducting health benefit premiums from his compensation. Appellant returned to work
on May 24, 2007. On June 9, 2007 he received disability compensation in the amount of
$1,872.78 for the period May 13 to June 9, 2007.
The Board finds that appellant was disabled from work from May 13 through 23, 2007,
which entitled him to 11 days of wage-loss compensation. However, he was not entitled to
compensation for the remaining 17 days, from May 24 to June 9, 2007, in the compensation
period. The Office properly calculated that appellant was entitled to only $753.73 of the
$1,872.78 he received on June 9, 2007 and that he was therefore overpaid by $1,137.05.
The Board finds that appellant was overpaid in the amount of $1,137.05

1

5 U.S.C. §§ 8101-8193, 8102(a).

2

20 C.F.R. § 10.500(a).

3

LEGAL PRECEDENT -- ISSUE 2
Under Office regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.3 The fact that the overpayment was the result of error by the Office or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.4 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 that 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; (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).5
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding 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.6
If the Office finds that the recipient of an overpayment was not at fault, repayment will
still be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose
of the Act; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.7
Recovery of an overpayment will defeat the purpose of the Act if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom the Office seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by the Office from data
furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.8 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.9 Recovery of an overpayment is also
3

Id. at § 10.433(a).

4

Id. at § 10.435(a).

5

Id. at § 10.433(a).

6

Id. at § 10.433(b).

7

Id. at § 10.434.

8

Id. at § 10.436.

9

Id. at § 10.437(a).

4

considered to be against equity and good conscience when any 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.10
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.11
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
he accepted a payment that he knew or should have known to be incorrect.
The record establishes that, on June 9, 2007, the Office made a direct deposit of
$1,872.78 into appellant’s bank account. As discussed above, this disbursement included an
overpayment of $1,137.05. On June 21, 2007 the Office discovered the overpayment and
terminated appellant’s wage-loss compensation effective May 24, 2007, the date of his return to
work. On July 24, 2007 the Office issued a preliminary determination of the overpayment. It
found that appellant was aware or should have been aware that he was not entitled to the entire
payment because he had been informed that overpayment might occur if he did not report his
return to work and because the date and amount of the payment appeared on a statement from the
financial institution following the electronic transfer of funds.
The Board has held that an employee who receives payments from the Office in the form
of direct deposit may not be at fault the first time incorrect funds are deposited into his account,
as the acceptance of the resulting overpayment lacks the requisite knowledge.12 Previous cases
have held that receiving one or two erroneous direct deposit payments over a short time
immediately following the employees’ return to work does not necessarily create the requisite
knowledge to find that a claimant was at fault in the creation of the overpayment.13 However,
the Board has found fault in cases where incorrect payments were made over longer periods of
time or for substantially greater amounts than previously received.14 The Board has noted that an
employee’s failure to return an overpayment is immaterial to the issue of whether he or she was
at fault in its creation.15

10

Id. at § 10.437(b).

11

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

12

Tammy Craven, 57 ECAB 689 (2006).

13

Id. at note 6.

14

Id. at note 7.

15

Id. (“That appellant spent the money or had more than ample opportunity to return it before the preliminary
finding of fault is immaterial to whether he was at fault in creating the overpayment.”)

5

The Board finds that appellant was without fault for the deposit of $1,137.05 into his
account on June 9, 2007. While appellant accepted the overpayment by gaining control of the
funds deposited into his account pursuant to his authorization, he did not know that the he would
receive an incorrect payment on that day. Unlike the situation in which a claimant receives a
physical check and is aware of the amount of the payment before depositing it into his account,
appellant was not on notice of the amount of the payment until after it was deposited
electronically into his account.16
The Board finds that the Office improperly determined that appellant was at fault in the
creation of the overpayment.
On appeal, appellant contends that he did not respond to the Office’s preliminary findings
because he never received the notice. The Board has previously found that, in the absence of
evidence to the contrary, a letter properly addressed and mailed in the due course of business is
presumed to have arrived at the mailing address in due course.17 This is known as the “mailbox
rule.” On review of the record, the Board notes that the July 24, 2007 letter was properly
addressed to appellant’s address of record in Passaic, New Jersey. The record contains no
evidence to rebut the presumption that appellant received the July 24, 2007 notice. The Board
therefore finds that appellant’s contention that he did not receive notice of the proposed findings
is not supported by the record.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,137.05. The Board further finds that
appellant was not at fault in the creation of the overpayment.18

16

Id.

17

Kenneth E. Harris, 54 ECAB 502 (2003).

18

In view of the Board’s disposition of issue number two, it would be premature to adjudicate issue number three
regarding recovery of the overpayment.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2007 is affirmed with respect to fact of and
amount of the overpayment and reversed with respect to the finding of fault. The case is
remanded for a determination of waiver.
Issued: May 8, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-332
Issued: September 26, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant filed a timely appeal of the October 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied appellant’s
claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
pneumoconiosis or chronic bronchitis in the performance of duty.
FACTUAL HISTORY
On October 8, 2009 appellant, then a 55-year-old yard mechanic technician, filed an
occupational disease claim, alleging that he developed pneumoconiosis and chronic bronchitis
from exposure to asbestos insulation on turbines and valves and from inhaling coal dust. He
1

5 U.S.C. §§ 8101-8193.

became aware of his condition and realized it was causally related to his work on July 21, 2009.
Appellant retired on January 5, 2009.
Appellant noted that he worked for the employing establishment intermittently beginning
in 1983 in construction and became a regular employee on June 22, 1999 and worked as a
pipefitter until October 24, 2008. He was exposed to asbestos that was used in the insulation on
turbines and valves. Appellant noted using a hammer to knock insulation off the valves and
inhaled the airborne asbestos dust. He was also exposed to coal dust which was produced when
pulverizing and conditioning coal and from welding smoke and fumes. Appellant occasionally
wore a paper mask. He worked for the Local 633 plumbers and pipefitters union from 1981 to
June 21, 1999 and reported being exposed to welding fumes, smoke and coal dust at power
generating plants and did not wear a protective mask. From February 1975 to 1981, appellant
worked at Peabody Coal Company and was an underground coal miner and operated scoops,
shuttle cars and loaders and was exposed to coat dust and rock dust on a daily basis and did not
wear a protective mask. He submitted an employing establishment job application and a job
history summary.
Appellant submitted an August 15, 2009 report from Dr. Glen Baker, a Board-certified
pulmonologist, who evaluated him for possible dust-induced lung disease. Dr. Baker noted
appellant’s work history was significant for working as a pipefitter and welder for the employing
establishment where he was exposed to asbestos, coal dust and magnetite. He advised that
appellant stopped work on January 5, 2009 secondary to being diagnosed with Parkinson’s
disease. Appellant smoked for 30 years at the rate of one-half pack per day. Dr. Baker stated
that an April 29, 2009 x-ray of the chest was consistent with occupational pneumoconiosis
secondary to asbestos exposure and based on a 2000 International Labor Organization (ILO)
Classification was consistent with pulmonary asbestosis.
He diagnosed occupational
pneumoconiosis and bronchitis. Based on appellant’s history of asbestos exposure, the x-ray
changes were primarily due to asbestos with some changes secondary to coal dust exposure.
Dr. Baker noted appellant’s bronchitis was due to industrial exposure and cigarette smoking. An
August 15, 2009 pulmonary function test revealed no abnormalities. In a July 3, 2009 B-reading,
Dr. Baker noted parenchymal abnormalities consistent with pneumoconiosis.
The employing establishment submitted an October 9, 2009 assessment from an
industrial hygienist who evaluated appellant’s work environment. The evaluator noted that the
exposures to respirable dust at the employing establishment were under the applicable
Occupational Safety and Health Administration (OSHA) limits. He noted that the employer had
a strong respiratory protection program and industrial hygiene assessments of the work area are
ongoing and adequate to maintain exposure levels below OSHA permissible limits.
In an October 21, 2009 letter, OWCP advised appellant of the evidence needed to
establish his claim. It requested that he submit a physician’s reasoned opinion addressing the
relationship of his claimed condition and specific work factors. OWCP also requested that the
employing establishment provide comments from a knowledgeable supervisor addressing
appellant’s allegations.
On February 24, 2010 OWCP referred appellant for a second opinion to Dr. William C.
Houser, a Board-certified pulmonologist. It provided Dr. Houser with appellant’s medical
records, a statement of accepted facts and a detailed description of appellant’s employment
duties. In a March 16, 2010 report, Dr. Houser reviewed the medical records and occupational
2

history. He noted findings upon physical examination of lungs clear to percussion, clear
auscultation, no rales or wheezing and no rhonchi, pleural rub or bronchial breath sounds.
Dr. Houser noted an x-ray of the chest dated March 18, 2010 and a pulmonary function test
revealed no abnormalities. He referenced a B-reading performed by Dr. Daniel W. Whitehead, a
pulmonologist, dated March 23, 2010, which revealed no parenchymal or pleural abnormalities
consistent with pneumoconiosis. Dr. Houser found no evidence of pneumoconiosis or
pulmonary impairment and Parkinson’s disease.
In a March 10, 2010 statement, the employing establishment acknowledged that appellant
was employed as a steamfitter and could not confirm or deny his statement of exposure. The
employing establishment noted that it provided respiratory protection programs designed to
protect workers by limiting the inhalation of airborne contaminates such as dust, gases and
vapors. It stated that annual respiratory fit tests were performed and respiratory protection
training was also provided.
In a decision dated April 19, 2010, OWCP denied appellant’s claim, finding that
Dr. Houser’s report did not establish that he developed the claimed pulmonary conditions as a
result of his employment.
On April 29, 2010 appellant requested an oral hearing. A telephone hearing was held on
August 9, 2010.
Appellant submitted an August 13, 2010 B-reading performed by
Dr. Mathew A. Vuskovich, a Board-certified pulmonologist, on a March 18, 2010 x-ray which
revealed parenchymal abnormalities consistent with pneumoconiosis, primary and secondary
small opacities in the middle and lower zones of the left and right zone with a profusion score of
1/1. Dr. Vuskovich noted no large opacities. He also submitted employing establishment
medical records from February 7, 1983 to April 24, 2002, which noted treatment for a lumbar
strain, foot injury and eye burn.
In a decision dated October 22, 2010, an OWCP hearing representative affirmed the
April 19, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim. When an employee claims that she sustained an injury in the
performance of duty, she must submit sufficient evidence to establish that she experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged.
Appellant must also establish that such event, incident or exposure caused an injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).

3

employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, 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.3
ANALYSIS
On October 8, 2009 appellant filed an occupational disease claim alleging that he
developed pneumoconiosis and chronic bronchitis from exposure to asbestos while working as a
construction worker, pipefitter and yard mechanic technician. On October 22, 2010 the hearing
representative affirmed OWCP’s denial of the claim based on Dr. Houser’s second opinion
report which found that appellant’s claimed condition was not employment related.
The Board finds that there is a conflict in medical opinion between Dr. Houser, the
OWCP referral physician, and Dr. Baker and Dr. Vuskovich, appellant’s treating physician, all of
whom are Board-certified specialists.
Dr. Houser found no evidence of pneumoconiosis or other pulmonary disease. He noted
an x-ray of the chest dated March 18, 2010 and a pulmonary function test revealed no
abnormalities. Dr. Houser advised that a March 23, 2010 B-reading by Dr. Whitehead revealed
no parenchymal or pleural abnormalities consistent with pneumoconiosis. By contrast,
Dr. Baker, appellant’s treating physician, diagnosed occupational pneumoconiosis and
bronchitis. He noted an April 29, 2009 x-ray of the chest was consistent with occupational
pneumoconiosis secondary to asbestos exposure and based on an ILO Classification consistent
with pulmonary asbestosis. Dr. Baker opined that based on appellant’s history of asbestos
exposure his x-ray changes were primarily due to asbestos with some changes secondary to coal
dust exposure. He further noted a July 3, 2009 B-reading noted parenchymal abnormalities
consistent with pneumoconiosis. Similarly, Dr. Vuskovich, a B-reader, noted that a March 18,
2010 x-ray revealed parenchymal abnormalities consistent with pneumoconiosis, primary and
secondary small opacities in the middle and lower zones of the left and right zone with a
profusion score of 1/1. The Board therefore finds that a conflict in medical opinion has been
created.

3

Solomon Polen, 51 ECAB 341 (2000).

4

Section 8123 of FECA4 provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.5
The case, therefore, requires remand for an impartial medical specialist to resolve the
conflict in the medical opinion regarding appellant’s diagnosis and its relationship to his
employment. On remand, OWCP should refer the case record and a statement of accepted facts
to an appropriate physician to reevaluate the evidence pursuant to section 5 U.S.C. § 8123(a).
Following this and such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2010 is set aside and the case remanded for further
action consistent with this decision.
Issued: September 26, 2011
Washington, DC

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

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

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

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000); Leonard M. Burger, 51 ECAB 369
(2000); Shirley L. Steib, 46 ECAB 39 (1994).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.Z., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE
ANNEX, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-0750
Issued: December 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 9, 2021 appellant filed a timely appeal from a March 15, 2021 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. 2
ISSUES
The issues are: (1) whether OWCP properly found that appellant had received an
overpayment of compensation in the amount of $13,766.05 for the period October 1, 2011 through
March 5, 2016, for which he was without fault, because he concurrently received FECA wage -loss
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 15, 2021, 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.

compensation benefits and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$640.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board on a separate issue. 3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On March 30, 1987 appellant, then a 41-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he sustained anxiety causally related to factors of his federal
employment. 4 He stopped work on March 12, 1987. OWCP accepted the claim for an adjustment
reaction and post-traumatic stress disorder. It paid appellant compensation for total disability from
March 14 through September 20, 1987. Appellant returned to limited-duty work on September 21,
1987, but stopped work again on November 9, 1987 and did not return. OWCP paid him wageloss compensation for total disability on the periodic rolls.
On October 28, 2015 OWCP sent a Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to SSA for completion. In an October 28, 2015 response, SSA
provided the monthly payments that appellant was entitled to with and without FERS effective
October 2011 to December 2015. It advised that he had become entitled to retirement benefits on
October 2011.
In a March 29, 2016 letter, OWCP informed appellant that it would begin deducting the
portion of SSA age-related retirement benefits attributable to his federal service from his
compensation benefits. It noted that the SSA offset amount was currently $264.60 or $244.25
when adjusted to a 28-day payment cycle. OWCP found that appellant was entitled to a net
compensation after the SSA offset of $2,367.75.
On April 4, 2016 appellant contended that he was not covered by the FERS retirement
program.
In a letter dated May 17, 2016, OWCP advised appellant that SSA had indicated that he
received benefits due to his federal service as part of the FERS retirement program . It requested
that he forward a Standard Form (SF)-50 regarding his employment status.
Thereafter, OWCP received a February 6, 1984 notification of personnel action, PS
Form-50, which indicated that appellant’s retirement coverage was the Civil Service Retirement
System (CSRS) and Federal Insurance Contributions Act (FICA). A January 7, 1987 PS-50
indicated that his retirement coverage had been automatically transferred to the FERS effective
January 1, 1987. An August 11, 1992 PS-50 noted that appellant had retired on disability with a
3

Docket No. 00-1000 (issued November 13, 2001).

4

The Form CA-2 is not contained in the case record.

2

last day in pay status of November 9, 1987. The form indicated that he was covered under the
FERS retirement plan.
On December 10, 2020 OWCP again sent SSA a FERS/SSA dual benefits calculation form.
In a December 28, 2020 response, SSA provided the same figures as it had on
October 28, 2015. It notified OWCP that, with FERS, appellant was entitled to a monthly payment
of $1,103.00 effective October 2011, $1,142.70 effective December 2011, $1,162.10, effective
December 2012, $1,179.50, effective December 2013, and $1,199.50 effective December 2014
and 2015. Without his federal service contributions, appellant was entitled to a monthly payment
rate of $859.80 effective October 2011, $890.70 effective December 2011, $905.80 effective
December 2012, $919.30 effective December 2013, and $934.90 effective December 2014 and
2015.
In a January 20, 2021 FERS offset calculation memorandum, OWCP calculated appellant’s
FERS/SSA offset for each period October 1, 2011 through March 5, 2016 and the amount of the
overpayment for each period. It found that, from October 1 through November 30, 2011, he
received an overpayment in the amount of $489.07, from December 1, 2011 through
November 30, 2012, he received an overpayment in the amount of $3,040.62, from December 1,
2012 through November 30, 2013, he received an overpayment in the amount of $3,084.05, from
December 1, 2013 through November 30, 2014, he received an overpayment in the amount of
$3,130.98, from December 1, 2014 through November 30, 2015, he received an overpayment in
the amount of $3,183.92, and from December 1, 2015 through March 5, 2016, he received an
overpayment in the amount of $837.42. OWCP added the amounts to find a total overpayment of
$13,766.05.
On January 25, 2021 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $13,766.05 had been created because appellant
received wage-loss compensation payments for the period October 1, 2011 through March 5, 2016
that had not been reduced to offset his SSA age-related retirement benefits attributable to his
federal service. It determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery questionnaire (Form OWCP20) to determine a reasonable payment method, and advised him that he could request waiver of
recovery of the overpayment. It further requested that he provide supporting financial
documentation, including copies of income tax returns, bank account statements, bills and canceled
checks, pay slips, and any other records which support income and expenses. Additionally, OWCP
provided an overpayment action request form and notified appellan t that, within 30 days of the
date of the letter, he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing.
In an overpayment action request form signed January 28, 2021, appellant requested a
decision based on the written evidence. He requested waiver of recovery of the overpayment. In
an OWCP-20 form, appellant advised that he had monthly income of $3,720.00 and listed monthly
expenses of $1,820.00. He indicated that he had assets of $8,200.00. Appellant did not submit
the requested financial documentation.

3

By decision dated March 15, 2021, OWCP finalized its preliminary overpayment
determination, finding that appellant had received a $13,766.05 overpayment of compensation for
the period October 1, 2011 through March 5, 2016 because it failed to offset his compensation
payments by the portion of his SSA age-related retirement benefits that were attributable to his
federal service. It further found that he was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment as his monthly income exceeded his expenses by
more than the allotted amount. OWCP also noted that appellant had not submitted any
documentation supporting his monthly expenses. It required recovery of the overpayment by
deducting $640.00 from his continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA 5 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
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 retirement benefits that are
attributable to the employee’s federal service.8 FECA Bulletin No. 97-09 states 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. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $13,766.05 for the period October 1, 2011 through March 5,
2016, for which he was without fault, because he concurrently received FECA wage -loss
compensation benefits and SSA age-related retirement benefits without an appropriate offset.
Appellant received SSA age-related retirement benefits beginning October 2011. OWCP
paid him wage-loss compensation for total disability on the periodic rolls af ter he stopped work
on November 9, 1987. As noted, a claimant cannot receive concurrent FECA compensation for
wage-loss and SSA age-related retirement benefits attributable to federal service. 10 The
5

Supra note 1.

6

5 U.S.C. § 8102.

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

9

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

10

Supra note 8. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).

4

information provided by SSA indicated that a portion of appellant’s SSA age-related retirement
benefits were attributable to his federal service. Accordingly, the Board finds that fact of
overpayment has been established.11
To determine the amount of the overpayment, the portion of SSA age -related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods October 1, 2011 through December 2015. OWCP provided its calculations for
each relevant period based on SSA’s worksheet and determined that appellant received an
overpayment in the amount of $13,817.35. The Board has reviewed OWCP’s calculation of dual
benefits received by him for the period October 1, 2011 through March 5, 2016 and finds that an
overpayment of compensation in the amount of $13,766.05 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless 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. 13
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 14 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 15 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 16 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 17
11

See L.K., Docket No. 20-1574 (issued June 23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

5 U.S.C. § 8129.

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400(2), (3) (September 2020).
15

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
16

See supra note 14 at Chapter 6.400.4(a)(2) (September 2020).

17

Id. at Chapter 6.400.4(b)(3)

5

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 in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 19
OWCP found that appellant’s monthly income of $3,720.00 exceeded his listed monthly
expenses of $1,820.00 by more than the allotted amount. As his monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, the Board finds that appellant does
not need substantially all of his income for ordinary and necessary living expenses. 20
Appellant has not established that denying waiver of recovery of the overpayment would
defeat the purpose of FECA.21 There is also no evidence to support that he gave up a valuable
right or changed his position for the worse, in reliance on his FECA compensation. Appellant,
therefore, did not establish that recovery of the overpayment was against equity a nd good
conscience. 22
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery. 23
On appeal appellant alleged that OWCP had taken multiple deductions based on his SSA
payments and that he was experiencing financial hardship. As discussed, however, he has not
submitted any evidence supporting that waiver of record would defeat the purpose of FECA or be
against equity and good conscience.

18

20 C.F.R. § 10.437(a)(b).

19

Id. at § 10.436.

20

See M.R., Docket No. 20-1622 (issued June 30, 2021).

21

See R.D., Docket No. 19-1598 (issued April 17, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020).

22

Id.

23

Id.

6

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 24
Section 10.441 of OWCP’s regulations provides that, when an overpayment of
compensation 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 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$640.00 from appellant’s continuing compensation every 28 days.
The record supports that, in requiring repayment of the overpayment by deducting $ 640.00
from appellant’s compensation payments every 28 days, OWCP gave due regard to the financial
information provided, noting that his monthly income exceeded his monthly expenses by
$1,900.00. Therefore, OWCP properly required recovery of the overpayment by deducting
$640.00 from his continuing compensation every 28 days. 26
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$13,766.05 for the period October 1, 2011 through March 5, 2016, for which he was without fault,
because he concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly required recovery of the overpayment by deducting
$640.00 every 28 days from his continuing compensation payments.

24

20 C.F.R. § 10.441. See M.P., Docket No. 18-0902 (issued October 16, 2018).

25

Id.

26

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2021
Washington, DC

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

Janice B. Askin, 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
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Houston, TX, Employer
__________________________________________

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

Docket No. 09-292
Issued: September 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 10, 2008 appellant filed a timely appeal from an October 24, 2008 decision
of a hearing representative of the Office of Workers’ Compensation Programs, finding that she
received an overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the overpayment of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment from July 7 to August 30, 2008 in the amount of $3,912.06; and (2) whether the
Office properly determined that appellant was at fault in the creation of the overpayment; thus
precluding waiver of recovery.
FACTUAL HISTORY
On October 20, 2007 appellant, then a 37-year-old immigration enforcement agent,
injured her left knee while running an obstacle course in the performance of duty. The Office

accepted her claim for a tear of the medial meniscus of the left knee and she received
compensation benefits. Appellant subsequently stopped work and was paid wage-loss
compensation beginning April 28, 2008. She was placed on the periodic compensation rolls as
of June 8, 2008.
In a letter dated June 10, 2008, the Office advised appellant that compensation benefits
for total disability were only payable while she could not perform work because of her injury.
Appellant was advised to inform the Office if she returned to work and to return any payment to
the Office to minimize the possibility of an overpayment. She was also advised of the penalties
for accepting compensation payments to which she was not entitled.
In a June 30, 2008 report, Dr. Robert H. Fain, a Board-certified orthopedic surgeon,
advised that appellant could return to light duty. He provided restrictions which included that
she could return to desk work. Dr. Fain advised that appellant could not walk long distances,
jump, run, climb or lift over 45 pounds.
In a July 11, 2008 report, an Office field nurse assigned to appellant’s claim indicated
that she returned to work on July 7, 2008. A subsequent review by the Office confirmed that
appellant had returned to full-time light duty on July 7, 2008. The Office determined that she
received an overpayment from July 7 to August 30, 2008 in the amount of $3,912.06.
A computer printout of the Office’s compensation payment history shows that appellant
received compensation in the amount of $3,912.06 covering the period July 7 to
August 30, 2008. The Office explained that, for a 28-day periodic roll cycle, she was entitled to
receive $1,991.59, or $71.13 per day. It also determined that appellant was overpaid
compensation for the 55-day period from July 7 to August 30, 2008. The Office multiplied the
daily rate of $71.13 by 55 days and determined that she received an overpayment in the amount
of $3,912.06.
On September 24, 2008 the Office notified appellant of its preliminary determination that
she received an overpayment of compensation in the amount of $3,912.06 because she returned
to full-time duty on July 7, 2008 but received wage-loss compensation for temporary total
disability from July 7 to August 30, 2008. It found that she was at fault in creating the
overpayment because she was paid her salary by the employing establishment and received
compensation from the Office after she returned to work such that she knew or should have
known that she was not entitled to further compensation. The Office advised appellant that she
had 30 days in which to submit evidence or argument if she disagreed with the preliminary
determination. Appellant did not respond to the Office’s preliminary determination.
By decision dated October 24, 2008, the Office finalized the overpayment of
compensation in the amount of $3,912.06. It found that appellant returned to full-time duty on
July 7, 2008; however, compensation payments for total disability continued through
August 30, 2008. The Office found that she accepted payments she knew or should have known
to be incorrect because she received compensation payments for wage loss despite having
returned to full-time duty at full salary. As appellant was at fault in the creation of the
overpayment, she was not entitled to waiver of the recovery. She was advised to either forward a

2

check for the entire amount of the overpayment or to contact the Office to make arrangements
for repayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, she may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.1 The Office regulations, at 20 C.F.R.
§ 10.500(a), provide that benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any periods during
which an employee’s work-related medical condition prevents him or her from earning the
wages earned before the work-related injury.2 A claimant is not entitled to receive temporary
total disability and actual earnings for the same period. Office procedures provide that an
overpayment in compensation is created when a claimant returns to work but continues to
receive wage-loss compensation.3
ANALYSIS -- ISSUE 1
The record establishes that appellant returned to full-time duty on July 7, 2008.
However, she received compensation for temporary total disability from July 7 to
August 30, 2008. As appellant returned to work and had no entitlement to compensation for this
period, the receipt of compensation for this time frame, caused an overpayment of compensation
to appellant. The Board will affirm the Office’s October 24, 2008 decision on the issue of fact of
overpayment.
In calculating the overpayment, the Office determined that appellant received total
compensation in the amount of $3,912.06 from July 7 to August 30, 2008. It explained that she
received $1,991.59 for each 28-day period which represented $71.13 in compensation per day.
The Office multiplied this amount, $71.13, by the 55 days for the above-noted period, to total
$3,912.06. The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $3,912.06 for the period July 7 to
August 30, 2008, when she returned to full-time work on July 7, 2008.
Appellant has not submitted any evidence showing that she did not receive an
overpayment of compensation or contesting the existence and amount of the overpayment. As
noted above, any compensation paid for total wage loss subsequent to the date of return to work
should be declared an overpayment.4 The Board will affirm the October 24, 2008 decision on
the amount of the overpayment.
1

5 U.S.C. § 8116(a).

2

20 C.F.R. § 10.500(a).

3

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Federal (FECA) Procedure Manual,
Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
4

Id.

3

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
receives 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).5
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding 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.6
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion above, that she accepted a payment which she knew or should have known to
be incorrect. In order for the Office to establish that appellant was at fault in creating the
overpayment, it must show that, at the time she accepted the compensation checks in question,
she knew or should have known that the payment was incorrect.7
The Board finds that, at the time appellant received the compensation in question, she
knew or should have known that the payments were incorrect. The record reflects that she
returned to work on July 7, 2008. On June 10, 2008 the Office had informed appellant that she
must return checks received after she returned to work in order to avoid an overpayment of
compensation. Appellant was advised by the Office of the penalty provision for accepting
compensation to which she was not entitled. She was notified of the period covered by each
compensation check and should have been reasonably aware that she could not receive wage-loss
compensation for a period after she had returned to work. On appeal, she acknowledged receipt
of the two checks. Appellant noted that she inadvertently spent one check and hid the other one
so well she could not find it. The Board finds that she knew or should have known that she was
not entitled to receive compensation in the amount of $3,912.06 from July 7 to August 30, 2008

5

20 C.F.R. § 10.433(a).

6

Id. at § 10.433(b).

7

Id. at § 10.430(a) provides that the Office includes on each periodic check a clear indication of the period for
which payment is being made. A form is sent to the recipient with each supplemental check which states the period
for which payment is being made. 20 C.F.R. § 10.430(b) notes that, by these means, the Office puts the recipient on
notice that a payment was made and the amount of the payment. See J.R., 60 ECAB __ (Docket No. 08-1107,
issued June 15, 2009).

4

concurrently with her full salary. As she is at fault in the matter of the overpayment, it cannot be
waived.8
On appeal, appellant contends that she thought the compensation payments in question
were for an earlier period. However, as noted, each compensation check is accompanied by an
indication of the period covered by check. This put her on notice of the period covered by each
check.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $3,912.06 which occurred for the period July 7 to
August 30, 2008. The Board further finds that she was at fault in the creation of the
overpayment and thus not entitled to waiver of the recovery.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: September 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to review of those cases where
the Office seeks recovery from continuing compensation benefits under the Act. See Terry A. Keister, 56 ECAB
559 (2005); Albert Pineiro, 51 ECAB 310 (2000). As the Office instructed appellant to submit a check for the entire
amount to repay the overpayment, the Board lacks jurisdiction to review the recovery of the overpayment.

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