United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 14-1584
Issued: October 5, 2016

Case Submitted on the Record

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

JURISDICTION
On July 8, 2014 appellant filed a timely appeal from two February 18, 2014 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined an overpayment in the amount
of $4,732.35 for the period January 1, 2009 to December 31, 2011; (2) whether it properly
determined that he was at fault in the creation of the overpayment and not entitled to waiver of
recovery; and (3) whether appellant has met his burden of proof to establish more than 26
percent permanent impairment of his left lower extremity, for which he received a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY -- ISSUES 1 AND 2
OWCP accepted that on August 24, 2000 appellant, then a 43-year-old part-time flexible
(PTF) letter carrier sustained injuries to his buttocks, back, and left leg when he slipped and fell
on a curb in the performance of duty.2 Appellant submitted medical evidence to support his
claim including a December 26, 2000 magnetic resonance imaging (MRI) scan of his lower back.
OWCP accepted his claim for low back pain, displacement of lumbar intervertebral disc,
mechanical complication of internal orthopedic device, implant and graft, and spinal stenosis of
the lumbar region. Appellant received disability compensation beginning December 2000 and
was on and off work for intermittent periods. On September 18, 2001 he returned to part-time
restricted duty and on October 22, 2001 to modified full duty.
On February 4, 2003 appellant stopped work and filed a claim for recurrence of disability
(Form CA-2a). OWCP accepted his recurrence claim and paid compensation beginning
March 1, 2003. In a letter dated June 27, 2003, it noted that appellant had been placed on the
periodic rolls. OWCP outlined his entitlement to compensation benefits and his responsibility to
return to work in connection with the accepted injury. The letter further stated that appellant
must advise OWCP if he returned to his former job or obtained other work, either with his
original employing establishment or with another employer. It provided:
“To minimize the possibility of an overpayment of compensation, NOTIFY THIS
OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. Each payment
shows the period for which payment is made. If you have worked for any portion
of this period, return the payment to this office, even if you have already advised
OWCP that you are working.”
Appellant continued to receive medical treatment from Dr. Subbanna Jayaprakash,
Board-certified in physical medicine and rehabilitation, and Dr. Dennis J. Maiman, a Boardcertified neurological surgeon. In a May 20, 2004 report, Dr. Maiman informed Dr. Jayaprakash
that appellant had improved since his lumbar fusion surgery but had complaints of significant leg
pain and muscle spasm. He reported that appellant’s range of motion had improved and
provided x-ray reports from that date.
Appellant submitted various medical reports including a February 27, 2003 computerized
tomography (CT) examination of his lumbar spine, x-ray reports of his lumbar spine dated
February 5 and May 10, 2004, December 17, 2005, and May 18 and November 30, 2006, and
x-rays of his right foot dated November 30, 2006.

2

Appellant began work for the employing establishment on July 15, 2000. The record indicates that although he
was hired as a PTF he was mostly working a full-time schedule and he eventually became a full-time regular (FTR)
employee.

2

In a September 5, 2009 report of earnings from the Social Security Administration (SSA),
it noted that from October 2007 through December 2008 appellant earned $1,033.00 in 2007 and
$1,694.00 in 2008 through private-sector employment.3
According to an August 22, 2012 SSA report of earnings for 2009 to 2011, appellant
earned $3,704.04 in 2009, $2,423.40 in 2010, and $2,136.02 in 2011 through private-sector
employment.4
On July 11, 2012 OWCP suspended appellant’s compensation benefits based upon a
finding that he had failed to complete EN1032 forms dated April 2, 2010, April 6 and
May 8, 2011. It received EN1032 forms from appellant on July 17, 2012 wherein he reported
part-time employment as a basketball and golf coach from September 2009 to February 2011.
Benefits were reinstated on that date.
After a period of vocational rehabilitation, appellant opted to receive retirement benefits
from the Office of Personnel Management (OPM), effective January 13, 2013, in lieu of
compensation benefits from OWCP.
The employing establishment provided appellant’s pay rate information. In a follow-up
telephone conversation with Peggy Rappe, an employing establishment human resources
specialist, OWCP requested clarification regarding appellant’s work schedule. Ms. Rappe stated
that appellant began work on July 15, 2000. She reported that he worked just 17 hours during his
first week on duty due to training and worked 39.5 hours for the second week. Ms. Rappe
further noted that for the next two weeks appellant worked a 40-hour work schedule until his
injury on August 24, 2000. She stated that the employing establishment would have no problem
considering appellant’s schedule that of a full-time worker for pay rate calculation purposes.
On January 16, 2014 OWCP issued a preliminary overpayment determination in the
amount of $6,144.56 for the period January 1, 2007 to December 31, 2011 because appellant
received wage-loss compensation for disability even though he earned wages through private
employment. It determined that he received compensation in the gross amount of $153,346.38
from January 1, 2007 to December 31, 2011 when he should have only received $147,201.82 for
this same period. This resulted in a total amount of overpayment of $6,144.56. OWCP further
found that appellant was at fault in the creation of the overpayment because he knowingly
accepted payments that he knew, or reasonably should have known, were incorrect. In an
attached memorandum, it explained in detail how the overpayment was calculated and noted that
the overpayment amount required a calculation of appellant’s wage-earning capacity from 2007
to 2011. OWCP further advised appellant that he could submit evidence challenging the fact,
amount, or finding of fault and request waiver of the overpayment and requested that he
3

In 2007, appellant earned $440.00 from the school district of South Milwaukee; $175.00 from the Village of
Union Grove; and $418.00 from the City of Oak Creek. In 2008, appellant earned $120.00 from the school district
of South Milwaukee; $160.00 from the City of Oak Creek; $1,351.00 from self-employment; and $63.00 from
Badger Inventory Service.
4

In 2009 appellant earned $1,567.00 from self-employment; $683.00 from Booster, Inc.; and $1,454.04 from the
University of Wisconsin. In 2010 and 2011, he earned $2,423.40 and $2,136.02 respectively from the University of
Wisconsin.

3

complete the enclosed financial information questionnaire within 30 days. No information was
received from appellant.
By decision dated February 18, 2014, OWCP finalized the determination of overpayment
with modification. It modified the period of the overpayment to January 1, 2009 to
December 31, 2011 for a total overpayment of $4,732.35. OWCP requested that appellant
forward a check in the amount of $4,732.35 to OWCP within 30 days.
In an attached memorandum, OWCP noted that appellant was to be paid a schedule
award in the amount of 26 percent permanent impairment of his left lower extremity for the
period January 25, 2007 to July 2, 2008. It explained that a claimant could not receive
compensation for total disability and compensation for a schedule award for concurrent date
ranges for the same injury.5 Thus, the disability compensation issued for the period January 25,
2007 to July 2, 2008 had already been offset by compensation for the appellant’s schedule
award. Because the same date range was for a schedule award, it would not seek collection of an
overpayment of disability compensation for that period. OWCP further stated that because the
exact dates that appellant worked in 2008 were unknown it would calculate the amount of
appellant’s overpayment beginning on January 1, 2009. The period of the final overpayment
was, therefore, determined to be January 1, 2009 to December 31, 2011.
OWCP provided calculations of the overpayment amount for the modified period of
January 1, 2009 to December 31, 2011. It explained that, pursuant to FECA, appellant was not
entitled to compensation for total disability because he earned actual wages, but was only
entitled to compensation for partial disability based on his loss of wage-earning capacity.6
Thus, OWCP determined the amount that appellant should have received from January 1,
2009 to December 31, 2011 by applying the Shadrick formula to determine appellant’s wageearning capacity.7 The record contains a document titled “Note to File” submitted by the claims
examiner on February 18, 2014, the same date as the final overpayment decision, which attempts
to explain the calculations used for determining the modified period of overpayment.
OWCP determined that, per appellant’s periodic disability payment reports, appellant’s
weekly pay rate when his disability began on February 5, 2003 was $671.50. This figure came
from appellant’s pay rate at his date of recurrence. Appellant’s hourly pay rate for the period
that the overpayment began on January 1, 2009 was $20.94. This figure was confirmed by the
employing establishment via telephone on February 19, 2014. OWCP multiplied $20.94 by 40
hours to determine that appellant’s January 1, 2009 weekly pay rate was $837.60 for Line 2. It
reported that appellant earned $683.00 from Booster Inc. and $6,013.46 from the University of
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.4a(3) (February 2013) (a schedule award is payable consecutively, not concurrently, with an award
for wage loss for the same injury).
6

See 5 U.S.C. § 8115(a). OWCP stated that calculation of appellant’s loss of wage-earning capacity relied on
appellant’s actual earnings, pay rate for appellant’s date-of-injury job, pay rate when appellant last stopped working
on February 4, 2003, appellant’s compensation rate of ¾, and consumer price index adjustment.
7

Albert C. Shadrick, 5 ECAB 376 (1953).

4

Wisconsin from 2009 to 2011 for a total amount of $6,696.46. These figures came from the
August 22, 2012 SSA report of earnings. For the 156.4 weeks that appellant worked, he earned
$42.81 weekly for Line 3. OWCP concluded that appellant’s four-week compensation amount
should have been $2,453.00. Taking into account consumer price index adjustments, the correct
entitlement for appellant’s loss of wage-earning capacity was $33,647.43 during the period
January 1, 2009 to March 1, 2010; $29,956.07 during the period March 1, 2010 to March 1,
2011; and $25,540.07 during the period March 1 to December 31, 2011. Accordingly, appellant
should have received $89,143.57 in compensation for the period January 1, 2009 to
December 31, 2011. As the record reveals that appellant received $93,875.92 in compensation
benefits for the same date range, this resulted in an overpayment of $4,732.35.
FACTUAL HISTORY -- ISSUE 3
On September 16, 2008 OWCP granted a schedule award for 17 percent of the left lower
extremity. The award ran from January 25, 2007 to January 2, 2008. The date of maximum
medical improvement was January 25, 2007.
On July 27, 2013 appellant filed a claim for an increased schedule award.
In an August 21, 2013 report, Dr. Jayaprakash provided an accurate history of appellant’s
August 24, 2000 employment injury and reviewed his history, including the various surgeries he
had undergone. Upon examination of appellant’s lumbar spine, he observed that appellant’s
sensations continued to be severely impaired on the left side at the L5 and the S1 level in
addition to the foot drop on the left side. Dr. Jayaprakash reported that appellant’s ankle
dorsiflexion was only 1- to 1+ and a moderate degree of muscle atrophy of the tibialis anterior
gastrocnemius and intrinsic muscles of the foot on the left side. The right side was otherwise
fairly intact. Dr. Jayaprakash stated that appellant’s hip flexion was 3+, abduction was 4-,
adduction was 4+, and quadriceps strength was 4+. He diagnosed chronic left L5 and S1
radiculopathy with foot drop and post L3-S1 spinal fusion.
Dr. Jayaprakash noted a date of maximum medical improvement of January 25, 2007.
He opined that, based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides) Table 15-13 on page 384, appellant was
DRE lumbar #3 with a permanent impairment of the whole body between 13 to 20 percent due to
the fact that he had an overlap and this would constitute 16 percent impairment. Dr. Jayaprakash
explained that this impairment was based upon the fact that he had a foot drop on the left side
with his motor strength loss of almost 75 percent at the level of the L5 nerve root on the left side.
He also noted that appellant had 75 percent loss of functional strength at his S1 nerve root as
well. Dr. Jayaprakash reported that these, in combination, were 9 percent and 6 percent
respectively with 1 percent loss of sensation which would place him at 16 percent loss.
In an October 10, 2013 report, Dr. Jayaprakash, utilizing the sixth edition of the A.M.A.,
Guides, Chapter 17, Table 10, determined that appellant had class 3 impairment by virtue of
multiple levels, which resulted in a default rating of 19 percent. He noted that based upon
residual radiculopathy of L5 and S1 he adjusted the rating to grade D for +1 percent.
Dr. Jayaprakash concluded that appellant had 20 percent whole percent impairment and 15
percent regional impairment of the left leg.

5

OWCP also referred appellant’s claim for an increased schedule award and the most
recent medical records to the district medical adviser to determine whether the medical evidence
supported a greater impairment to appellant’s left lower extremity. In a January 12, 2014 report,
Dr. Christopher Gross, a Board-certified orthopedic surgeon and OWCP medical adviser, noted
that he had reviewed appellant’s history and provided results on examination. He observed left
foot drop with normal sensation and no evidence of any right lower extremity dysfunction.
Referencing The Guides Newsletter July/August 2009, Table 2, he rated appellant’s left L5 and
S1 as moderate/severe motor deficits. Based on Table 16-6, page 516, Dr. Gross reported
moderate functional problem with pain on normal activity. He noted that the grade modifier for
physical examination was not relevant because the neurologic findings were used to define
impairment ranges and that the clinical studies were not available for review. Dr. Gross stated
that appellant had a net adjustment formula of +1. Therefore, his right lower extremity
permanent impairment was 13 percent impairment for L5 and 13 percent impairment for S1 for a
total of 26 percent impairment.
Dr. Gross reported that this rating differed from
Dr. Jayaprakash’s rating because he did not use The Guides Newsletter. He noted a date of
maximum medical improvement of January 25, 2007.8
In a January 16, 2014 letter, appellant requested clarification of the statement that he was
seeking an “increased schedule award.” He explained that he never received any monetary
award for a schedule award from a September 16, 2008 decision for 17 percent permanent
impairment of the left lower extremity.
In a February 4, 2014 letter, OWCP noted that Dr. Gross had provided a permanent
impairment rating for appellant’s right lower extremity even though the memorandum referenced
the left lower extremity impairment. It requested clarification from Dr. Gross regarding whether
appellant’s impairment rating was for the left or right lower extremity.
In a February 9, 2014 updated report, Dr. Gross stated that appellant had 26 percent
impairment of the left lower extremity.
By decision dated February 18, 2014, OWCP granted appellant a schedule award for 26
percent permanent impairment of the left lower extremity. The award ran from January 25, 2007
to July 2, 2008 and noted a date of maximum medical improvement of January 25, 2007.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.9 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA 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

8

The Board notes that a maximum medical improvement date of January 25, 2007 is also supported by
Dr. Jayaprakash in his August 21, 2013 medical report.
9

Supra note 1 at 8102.

6

limited circumstances.10 A claimant is not entitled to receive total disability compensation and
actual earnings for the same period. OWCP procedures provide that an overpayment in
compensation is created when a claimant returns to work but continues to receive wage-loss
compensation.11
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity.12 Generally, wages actually earned are the best measure of wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.13 OWCP applies the
Shadrick formula to calculate a given claimant’s loss of wage-earning capacity, a formula which
was derived from principles contained in the case of Albert C. Shadrick.14
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits
OWCP is required by statute and regulation to make findings of fact.15 Its procedures further
specify that a final decision of OWCP “should be clear and detailed so that the reader
understands the reason for the disallowance of the benefit and the evidence necessary to
overcome the defect of the claim.”16 These requirements are supported by Board precedent.17
A claimant may not receive compensation for disability and a schedule award covering
the same period of time.18 Therefore, appellant cannot receive concurrent wage-loss
compensation and a schedule award for the same injury.19
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not provide an adequate explanation of how it
determined an overpayment of compensation in the amount of $4,732.35 for the period
January 1, 2009 to December 31, 2011. In its January 16, 2014 preliminary determination
10

Id.

11

See M.M., Docket No. 15-0265 (issued May 27, 2015).

12

5 U.S.C. § 8115(a).

13

E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

14

Supra note 7.

15

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
17

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

18

Eugenia L. Smith, 41 ECAB 409 (1990).

19

See James A. Earle, 51 ECAB 567 (2000).

7

OWCP indicated that appellant received a $6,144.56 overpayment for the period January 1, 2007
to December 31, 2011 because he received wage-loss compensation for disability even though he
earned wages through private employment. In its February 18, 2014 decision, OWCP modified
the period of the overpayment to January 1, 2009 to December 31, 2011 and reduced the amount
of overpayment to $4,732.35 for the period January 25, 2007 to July 2, 2008 which had already
been offset due to appellant’s schedule award. Further, it calculated a loss of wage-earning
capacity based on appellant’s actual earnings.
OWCP attempted to explain its calculations in the memorandum for the file, attached to
the February 18, 2014 decision, and in a “Note to File” submitted by the claims examiner on
February 18, 2014. The “Note to File” states that, per the employing establishment, appellant
only worked 17 hours during the first week of his employment, but was essentially full time for
the next two weeks until he was injured. The claims examiner thus used a pay rate based on a
40-hour per week schedule. The claims examiner noted that the employing establishment human
resources specialist “could not obtain earnings for the one year prior for the most similar
employee so far back in time.” Therefore, a figure based on the most similar employee could not
be calculated. Moreover, it was determined, without sufficient explanation, that appellant’s
actual earnings from employers during the period 2009 to 2011 averaged $42.81 per week for the
three-year period in question. The Board notes that the amount of overpayment does not contain
sufficient explanation about the sources of these figures or how they may have been used to
calculate appellant’s pay rate.
As OWCP did not provide a clearly written statement explaining how the overpayment
was calculated such that appellant could satisfy himself that the calculation was correct, the
Board finds that this case is not in posture for decision as to fact and amount of overpayment.
Accordingly the Board will set aside the February 18, 2014 decision on that issue.20
LEGAL PRECEDENT -- ISSUE 3
The schedule award provision of FECA21 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.22

20

See T.G., Docket No. 15-566 (issued June 9, 2015).

21

See generally supra note 1; 20 C.F.R. § 10.404 (1999).

22

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

8

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.23 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.24
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decade has offered an
alternative approach to rating spinal nerve impairments.25 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009 The Guides Newsletter.26
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the employment
injury. The Board has defined maximum medical improvement as meaning that the physical
condition of the injured member of the body has stabilized and will not improve further. The
Board has also noted a reluctance to find a date of maximum medical improvement, which is
retroactive to the award, as retroactive awards often result in payment of less compensation
benefits. The Board, therefore, requires persuasive proof of maximum medical improvement in
the selection of a retroactive date of maximum medical improvement.27 The determination of
whether maximum medical improvement has been reached is based on the probative medical
evidence of record and is usually considered to be the date of the evaluation by the attending
physician which is accepted as definitive by OWCP.28
ANALYSIS -- ISSUE 3
OWCP accepted that appellant sustained lumbar stenosis, displacement of lumbar
intervertebral disc without myelopathy, and mechanical complications of internal orthopedic
device. On September 16, 2008 it granted a schedule award for 17 percent of the left lower
extremity and increased it to 26 percent by decision dated February 18, 2014.

23

Pamela J. Darling, 49 ECAB 286 (1998).

24

Thomas J. Engelhart, 50 ECAB 319 (1999).

25

Rozella L. Skinner, 37 ECAB 398 (1986).

26

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1, n.5 (January 2010); The Guides Newsletter is included as Exhibit 4.
27

J.C., Docket No. 06-1018 (January 10, 2007); D.R., 57 ECAB 720 (2006); James E. Earle, 51 ECAB
567 (2000).
28

Mark A. Halloway, 55 ECAB 321, 325 (2004).

9

The Board finds that this case is not in posture for decision regarding appellant’s left
lower extremity impairment.
OWCP granted its schedule award for 26 percent permanent impairment of the left lower
extremity based on the February 9, 2014 report of Dr. Gross, an OWCP medical adviser. In the
report, Dr. Gross noted that he reviewed appellant’s history and provided findings on
examination. He referenced the sixth edition of the A.M.A., Guides and The Guides Newsletter
July/August 2009. Based on Table 2 of The Guides Newsletter, he rated appellant’s left L5 and
S1 as moderate/severe motor deficits. Dr. Gross noted that physical examination was not
relevant and that clinical studies were not available for review. He determined that appellant had
a net adjustment formula of +1. Dr. Gross concluded that appellant had 13 percent impairment
for L5 and 13 percent impairment for S1 for a total of 26 percent impairment of the left lower
extremity.
The Board finds, however, that Dr. Gross’s impairment rating was not based on a
complete record. He stated that clinical studies were not available for review, and accordingly,
was not able to determine any grade modifiers, if any, based on these diagnostic studies. The
record reflects a December 26, 2000 MRI scan report, a February 27, 2003 CT scan of the
lumbar spine, x-ray reports of the lumbar spine dated February 5 and May 10, 2004,
December 17, 2005, and May 18 and November 30, 2006, and an x-ray of the right foot on
November 30, 2006. The Board has held that medical reports must be based on a complete and
accurate factual and medical background. Medical opinions based on an incomplete or
inaccurate history are of limited probative value.29 Because Dr. Gross did not review relevant
diagnostic testing or clinical studies, the Board finds that his impairment rating is of diminished
probative value and is insufficient to establish the degree of appellant’s permanent impairment.30
It is well established that proceedings under FECA are not adversarial in nature, and
while the employee has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.31 Once OWCP undertook development of the
evidence by referring appellant to an OWCP medical adviser, it had an obligation to do a
complete job and obtain a proper evaluation that would resolve the issue in this case.32 The
Board will set aside OWCP’s February 18, 2014 decision and remand the case for Dr. Gross to
review appellant’s clinical studies in order to determine the extent of appellant’s left lower
extremity impairment. After such further development as deemed necessary, it shall issue a de
novo decision on appellant’s claim for a schedule award.
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment in compensation in the amount of $4,732.35 for the period January 1, 2009 to
29

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

30

See C.M., Docket No. 14-83 (issued June 17, 2014).

31

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

32

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

10

December 31, 2011. The Board also finds that the case is not in posture for decision regarding
appellant’s entitlement to a schedule award for his left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2014 overpayment decision is
reversed. The February 18, 2014 schedule award decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.33
Issued: October 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

33

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, SUNRISE POST
OFFICE, Fort Lauderdale, FL, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1295
Issued: November 24, 2015

Case Submitted on the Record

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

JURISDICTION
On May 21, 2015 appellant filed a timely appeal from an April 24, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits effective September 21, 2014 because his accepted emotional
condition had ceased without residuals.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. Pursuant to the first appeal, by decision
and order issued November 12, 1998,2 the Board set aside OWCP’s November 13, 1995 decision
denying appellant’s emotional condition claim, finding that appellant had established a
compensable factor of employment. The Board remanded the case for additional development of
the medical evidence. In another appeal, by decision and order issued June 11, 2012,3 the Board
set aside OWCP’s September 29, 2011 decision denying modification of a July 20, 1999 wageearning capacity determination. The Board found that the opinion of Dr. David Tobolowsky, a
Board-certified psychiatrist and second opinion physician, could not be accorded the weight of
the medical evidence as the statement of accepted facts provided to him had omitted appellant’s
relevant private sector employment. The Board remanded the case for additional development.
The law and facts of the case as set forth in the Board’s prior opinions are incorporated by
reference. The facts relevant to the present appeal are set forth below.
OWCP accepted, on March 19, 1999, that on or before December 2, 1993 appellant, then
a 46-year-old station manager, sustained major depression due to overwork. Appellant asserted
that management demanded increased production despite staff cuts and a 25 percent turnover
rate caused by a 1992 reorganization. He noted that for two years, his post office had the highest
overtime percentage for the Fort Lauderdale metropolitan area due to a severe personnel
shortage. Appellant explained that his exempted status made him “subject to call 24 hours per
day seven days per week,” with unscheduled overtime.4 The employing establishment submitted
October 15, 1993 and April 21, 1994 letters confirming the staff shortages and 25 percent staff
turnover rate as appellant described. It also acknowledged that appellant was required to meet
increased production goals with fewer employees and untrained workers.
Appellant had stopped working at the employing establishment on July 5, 1997.
Following OWCP’s acceptance of his claim on March 19, 1999, he filed a claim for
compensation (Form CA-7). On that form, appellant also acknowledged that he had been
working as a sales associate in a private-sector fishing equipment store. OWCP provided him
the opportunity to elect benefits under retirement or under FECA. Appellant elected FECA
benefits effective October 27, 1998. He was paid retroactive disability compensation from
July 25, 1997 through October 25, 1998 and was placed on the periodic rolls. Appellant
submitted regular Forms EN1032, along with periodic medical reports.
By decision dated July 20, 1999, OWCP determined that appellant’s actual earnings of
$240.00 per week as a private-sector sales associate represented his wage-earning capacity. The
2

Docket No. 96-1041 (issued November 12, 1998).

3

Docket No. 12-0021 (issued June 11, 2012).

4

Appellant was first followed by Dr. Robert S. Watine, an attending, Board-certified internist, who provided
reports from May 29, 1992 to November 18, 1993 diagnosing severe depression due to excessive stress at work.
Dr. Watine referred appellant to Dr. Ronald L. Bergman, an attending, licensed clinical psychologist, who treated
appellant from November 24, 1993 to May 1994 for depression and anxiety related to stress due to an “upheaval
over internal organization” with “unremitting demands” at work.”

2

amount of his disability compensation was reduced retroactively effective October 26, 1998.
Appellant requested reconsideration of the wage-earning capacity decision but OWCP denied
modification on August 25, 1999.
As there had not been any recent medical reports in the record, OWCP referred appellant
to Dr. Henry Storper, a Board-certified psychiatrist, for a second opinion examination. In his
June 5, 2006 report, Dr. Storper diagnosed major depression causally related to appellant’s
federal employment and found him totally disabled for work.
Appellant continued to work part time until he stopped work completely in
December 2007.
On December 29, 2010 appellant, through counsel, requested modification of the
wage-earning capacity decision based on reports dated March 24, 2010 to April 8, 2011, from
appellant’s treating physician, Dr. Robert F. Vassall, an attending Board-certified psychiatrist
and neurologist. Dr. Vassall diagnosed severe major depressive disorder causally related to
factors of employment and found that appellant continued to be totally disabled for any work.
By decision dated June 1, 2011, OWCP denied modification of the July 20, 1999 decision
finding the medical evidence did not satisfy the criteria for modification of the wage-earning
capacity decision. After a request for a review of the written record, by decision dated
September 29, 2011 an OWCP hearing representative affirmed the June 1, 2011 decision. That
decision was appealed to the Board. By decision dated June 11, 2012, the Board remanded the
case to OWCP because the statement of accepted facts (SOAF) was inaccurate.
Upon remand from the Board, OWCP created a revised SOAF and referred appellant to
Dr. Antonio De Filippo, a Board-certified psychiatrist, who diagnosed recurrent major
depression and alcohol abuse. Dr. De Filippo explained that the medical record, statement of
accepted facts, and findings on examination all indicated “regular ongoing chronic depression”
that continued to be causally related to work factors. Dr. De Filippo noted that appellant’s
condition had not improved or worsened.5 In an April 17, 2013 supplemental report, he found
appellant totally disabled for work due to the accepted major depression. Dr. De Filippo
emphasized that appellant was “not employable in any capacity.”
OWCP requested that Dr. De Filippo provide a second addendum addressing causal
relationship. In a June 20, 2013 report, Dr. De Filippo explained that appellant’s depression
predated his private sector employment, and remained “more related to his work as a postal
worker rather than his private section work, which was short lived.” Also, appellant remained
depressed during his work as a private sector sales associate. Dr. De Filippo opined that
appellant was totally disabled for work.
5

By decision dated September 12, 2012, OWCP denied modification of the July 20, 1999 wage-earning capacity
determination, finding that Dr. De Filippo’s opinion established that appellant’s accepted emotional condition had
not worsened such that he could not have continued work as a sales associate. Following counsel’s request for a
telephonic hearing, OWCP’s Branch of Hearing and Review issued a March 11, 2013 decision setting aside the
September 12, 2012 decision, finding that the case was not in posture for a decision. OWCP remanded the case to
obtain a supplemental report from Dr. Filippo regarding appellant’s work capacity.

3

By decision dated July 18, 2013, OWCP modified the July 20, 1999 wage-earning
capacity determination, and reinstated total disability compensation retroactive to June 5, 2006,
the date of Dr. Storper’s second opinion examination.
On January 20, 2014 OWCP obtained a second opinion from Dr. James A. Jordan, a
Board-certified psychiatrist. Dr. Jordan reviewed the medical record and a statement of accepted
facts. He related appellant’s history of a 2013 hip arthroplasty, diabetes mellitus, hypertension,
and excessive alcohol use. Dr. Jordan opined that appellant’s “work-related emotional condition
ended before he began” private sector employment in 1998. He opined that appellant’s “current
condition [was] primarily related to an alcohol use disorder,” as the “work[-]related condition
was resolved long ago.”
In a March 27, 2014 report, Dr. Vassall diagnosed severe, recurrent major depressive
disorder. He opined that the “injury[-]related condition [was] still medically present and
disabling.” Dr. Vassall prescribed medication.
OWCP found a conflict of medical opinion between Dr. Vassall, for appellant, and
Dr. Jordan, for the government, regarding the nature and extent of the accepted condition. To
resolve the conflict, it selected Dr. Abbey Strauss, a Board-certified psychiatrist. In an April 21,
2014 report, Dr. Strauss reviewed the medical record and a statement of accepted facts. He
related appellant’s account of drinking a six-pack of 12 ounce cans of beer on most nights, and
eating only one meal a day. Dr. Strauss related that appellant’s depression was no longer
“wholly related to the depression he suffered in 1993. He questioned why Dr. Vassall had not
tried different antidepressants, “especially since [appellant’s] medications are paid for entirely by
the government.” Dr. Strauss offered that appellant “may be suffering from an alcohol abuse
issue more than depression,” a “component of dysthymia,” obsessive-compulsive disorder, or to
other medical conditions and “possible brain sequelae” of alcohol use and poor diet.” He noted
that appellant had experienced other life events sufficient “to have brought about this current
depression.” Dr. Strauss stated that in “all probability, and in [his] opinion, the work-related
psychiatric condition resolved many years ago.” He elaborated that he could not “say that this
episode of depression [was], as its primary and principal etiology, a product of the 1993
work-related injury.”
By notice dated June 18, 2014, OWCP advised appellant that it proposed to terminate his
wage-loss and medical compensation benefits, based on Dr. Strauss’ opinion that the accepted
major depression had ceased without residuals.
Counsel responded on July 17, 2014, contending that Dr. Jordan’s opinion was too vague
and illogical to have created a conflict with that of Dr. Vassall. He noted that the reports of both
Dr. Jordan and Dr. Strauss were entirely contrary to the opinions of Drs. Benovitz, Storper,
Tobolowsky, and De Filippo, second opinion physicians who attributed appellant’s ongoing
major depression to work factors. Counsel argued that under the Board’s ruling in N.S.,6
Dr. Strauss’ opinion was insufficient to meet OWCP’s burden of proof as he did not provide the
date on which the accepted condition ceased.
6

Docket No. 07-1668 (issued January 7, 2008).

4

By decision dated August 28, 2014, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective September 21, 2014, based on Dr. Strauss’ report as the weight
of the medical opinion.
In a September 2, 2014 letter, counsel requested a telephonic oral hearing, held
March 10, 2015. At the hearing, he reiterated that his assertions that Dr. Jordan’s report was too
vague to create conflict of medical opinion, and that Dr. Strauss’ opinion was entirely
speculative and unreliable. Counsel repeated these assertions in a March 10, 2015 statement
submitted following the hearing.
By decision dated April 24, 2015, an OWCP hearing representative affirmed the
August 28, 2014 termination decision, finding that Dr. Strauss’ opinion was “well-rationalized
and considerate of the facts in the case.”
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.8
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.9 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.10
ANALYSIS
OWCP accepted that appellant sustained major depression due to work factors on or
before December 2, 1993.
OWCP undertook additional medical development to determine whether appellant was
entitled to continuing compensation. It sought a second opinion from Dr. Jordan, a Boardcertified psychiatrist. Dr. Jordan provided a January 20, 2014 report concluding that the
accepted major depression ceased before appellant began private sector employment in 1998.
OWCP then found a conflict between Dr. Vassall and Dr. Jordan regarding whether appellant’s

7

Bernadine P. Taylor, 54 ECAB 342 (2003).

8

Id.

9

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

10

Delphia Y. Jackson, 55 ECAB 373 (2004).

5

major depression continued to be related to the accepted work factors.
Board-certified psychiatrist, was selected to resolve it.

Dr. Strauss, a

Dr. Strauss provided an April 21, 2014 report positing a variety of causes for appellant’s
depression, including possible dysthymia, possible obsessive-compulsive disorder, “possible
brain sequelae” of alcohol use and poor diet, and various life events. However, Dr. Strauss did
not definitively diagnose any of these conditions, or provide his reasons for proposing that
appellant could have them. The speculative nature of Dr. Strauss’ opinion on the critical issues
of diagnosis and causation greatly diminish its probative value.11 He offered many theories, but
proved none of them. This speculation is the direct opposite of the definite, well-reasoned
opinion sought by OWCP.
Also, Dr. Strauss predicated his opinion on an incorrect legal standard. He emphasized
that appellant’s depression was no longer wholly, primarily, or principally caused by the 1993
work-related injury. These statements reveal that Dr. Strauss was unaware that there is no
apportionment under FECA.12 Any contribution from work factors is compensable. Dr. Strauss’
error in this regard further reduces the weight of his opinion.
Additionally, Dr. Strauss omitted a crucial element of the impartial opinion OWCP
requested. OWCP selected him to resolve a conflict of medical opinion regarding whether the
accepted major depression had ceased, and if so, to provide the date on which the condition
resolved. The Board has held that if an impartial examiner failed to provide the date on which
the condition ceased, the opinion is insufficient to resolve a conflict on continuing disability.13
Dr. Strauss concluded his report by opining that in “all probability, and in [his] opinion, the
work-related psychiatric condition resolved many years ago.” He did not provide any indication
of the date by which he believed appellant’s major depression resolved. Therefore, Dr. Strauss’
opinion cannot represent the weight of the medical evidence in this case. His report cannot meet
OWCP’s burden of proof in terminating appellant’s wage-loss and medical compensation
benefits.14 OWCP’s April 24, 2015 decision is reversed. On return of the case record, it shall
reinstate appellant’s compensation benefits and issue appropriate retroactive compensation.
On appeal, counsel asserts that Dr. Strauss’ opinion is insufficient to represent the weight
of the medical evidence as his opinion was vague, contradictory, and illogical. He also contends
that Dr. Strauss relied on an incorrect legal standard by requiring that work factors contribute
substantially to a claimed condition. Counsel notes that the Board’s holdings in Rudy C.
Sixta, Jr.15 and Henry Klaus16 specify that there is no apportionment under FECA, and that it is
11

D.D., 57 ECAB 534 (2006).

12

W.A., Docket No. 14-1197 (issued December 19, 2014); N.E., Docket No. 10-1757 (issued April 6, 2011);
Glen C. Chasteen, 42 ECAB 493 (1991); Beth C. Chaput, 37 ECAB 158 (1985).
13

N.S., supra note 6.

14

Supra note 9.

15

44 ECAB 727 (1994).

16

9 ECAB 333 (1957).

6

not necessary to prove that work factors contributed significantly to a claimed condition in order
to establish causal relationship. Alternatively, he contends that Dr. Strauss should not be
considered an impartial medical examiner as there was no conflict of opinion at the time of his
selection. Counsel argues that Dr. Vassall’s opinion clearly outweighed that of Dr. Jordan.
As stated above, Dr. Strauss’ opinion was insufficient to resolve the conflict of opinion
between Dr. Jordan, for the government, and Dr. Vassall, for appellant. That conflict remains
unresolved. Therefore, OWCP’s April 24, 2015 decision terminating appellant’s compensation
benefits was improper, and must be reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in terminating appellant’s
medical and wage-loss compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Program dated April 24, 2015 is reversed.
Issued: November 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Houston, TX, Employer
__________________________________________

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Appearances:
Cruz Cordova, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1344
Issued: November 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 14, 2016 appellant, through her representative, filed a timely appeal from a
March 23, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days has elapsed from July 8, 2014 the date of the most recent OWCP merit
decision to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 11, 2013 appellant, then a 48-year-old material handler, filed a traumatic injury
claim (Form CA-1). She alleged that on June 24, 2013 while supervising the transport of
merchandise from the warehouse, a worker sprayed pesticide which caused her to have an
asthma attack from a restricted airway, difficulty breathing, and elevated blood pressure due to
toxic fumes. Appellant’s supervisor noted that an investigation revealed that there was no
spraying or fogging being conducted in the area as alleged. Appellant stopped work on the date
of injury and returned to work on June 28, 2013.
In a June 24, 2013 diagnostic report, Dr. Susan Pinero, a Board-certified diagnostic
radiologist, advised that an x-ray of the chest revealed unremarkable soft tissue and
cardiomediastinal silhouette and clear lungs bilaterally. A June 24, 2013 emergency department
report was also submitted.
By letter dated April 8, 2014, OWCP advised appellant of the type of evidence needed to
establish her claim and afforded her 30 days to reply. On April 8, 2014 it also requested that the
employing establishment provide additional information regarding appellant’s claim, including
any comments from a knowledgeable supervisor on the accuracy of the statements provided by
appellant regarding the claimed injury.
In a May 5, 2014 letter, the employing establishment advised that it did not concur with
appellant’s allegations. It contended that there were no pesticides used in the claimed area on the
date in question. The employing establishment indicated that the department responsible for
using pesticides did not have any record of her work area being treated on that date. It noted that
the product appellant claimed was sprayed was “Best Yet” which is an organic based product
made from cedar oil. The employing establishment provided a position description for a material
handler as well as a material data sheet for a product named “Best Yet.”
By decision dated July 8, 2014, OWCP denied appellant’s claim. It found that appellant
failed to establish the factual component of fact of injury, as the evidence of record was
insufficient to establish that the events occurred as described.
On October 20, 2015 appellant returned OWCP’s questionnaire. She noted that she was
not exposed to any irritants or chemicals in her home or outside of her federal employment.
Appellant advised that she was diagnosed with asthma in middle school and noted that she was
not a smoker.
Appellant submitted additional evidence that was also received on October 20, 2015. In a
June 24, 2013 statement, Donald Henry, a cook supervisor at the employing establishment,
advised that on June 24, 2013, during the morning hours, he entered the warehouse area to

2

retrieve needed items from the freezer when he smelled an odor with a cedar-type chemical in
the air.
In a June 25, 2013 statement, Douglas G. Martin, a material handler supervisor at the
employing establishment, advised that on June 25, 2013, while working his assigned post in the
warehouse, he noticed a spray bottle near the recycling area which contained a liquid substance.
He indicated that he picked up the bottle and noticed that it had a cedar odor.
In an October 15, 2015 report, Dr. Lyndall Harrison, Board-certified in allergy and
immunology, advised that appellant had been under his care for several years for asthma. He
noted that on June 24, 2013 appellant related that she was exposed at her job to a pesticide
containing cedar oil that was supposed to only be used outdoors. Dr. Harrison noted that within
a few minutes she developed acute tightness in her chest and dyspnea when she smelled the
product. He noted that the symptoms became so severe that she required care at the emergency
room. Dr. Harrison indicated that appellant had a long history of asthma triggered by
environmental factors and opined that it was very probable that such exposure to a pesticide
caused her to develop acute asthma symptoms as she described.
By letter dated October 20, 2015, received by OWCP on October 26, 2015, appellant
requested reconsideration. In a December 7, 2015 letter, received on December 17, 2015, she
again requested reconsideration.
By decision dated March 23, 2016, OWCP denied appellant’s request for reconsideration
as untimely filed and failing to demonstrate clear evidence of error.
On appeal appellant’s representative contends that the employing establishment falsely
claimed on the (Form CA-1) that “an investigation revealed that there was no fogging operation
being conducted in the area.” He argues that this false information casts doubt on OWCP’s
finding that there was no clear “fact of injury.” Appellant’s representative notes that the
employing establishment was unable to produce any investigative report and informed him that
“there is no documentation regarding an injury investigation.” He requests that OWCP either
produce the investigative report that they utilized to deny the claim or accept the claim.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

error.5 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review demonstrates clear evidence of error on the part of OWCP.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.9 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.11
ANALYSIS
In its March 23, 2016 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request dated October 20,
2015, was not received by OWCP until October 26, 2015. Because appellant’s reconsideration
request was not received within one year of the July 8, 2014 merit decision, appellant must
demonstrate clear evidence of error by OWCP.12
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in the denial of her traumatic injury claim. The evidence submitted by appellant did not
raise a substantial question concerning the correctness of OWCP’s decision.
In support of her reconsideration request, appellant submitted additional evidence. In a
June 24, 2013 statement, appellant’s coworker advised that on June 24, 2013 during the morning
hours he entered the warehouse area to retrieve needed items from the freezer when he smelled
an odor with a cedar-type chemical in the air. In another June 25, 2013 statement, appellant’s
5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(October 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error.
Evidence such as a detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear evidence of error.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See supra note 7.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See 20 C.F.R. § 607(a) (an application for reconsideration must be received by OWCP within one year of the
date of OWCP’s decision for which review is sought).

4

coworker advised that on June 25, 2013 while working his assigned post in the warehouse, he
noticed a spray bottle near the recycling area, which contained a liquid substance. He indicated
that he picked up the bottle and noticed a cedar-type odor. In an October 20, 2015 response to an
OWCP questionnaire, appellant noted that she was not exposed to any irritants or chemicals in
her home or outside of her federal employment. She advised that she was diagnosed with asthma
in middle school and noted that she was not a smoker. Although these factual statements are
supportive of the claim, they do not raise a substantial question as to the correctness of OWCP’s
July 8, 2014 decision. The term “clear evidence of error” is intended to represent a difficult
standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof of a miscalculation in a schedule award). Evidence such as a detailed,
well-rationalized report, which if submitted prior to OWCP’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of a case.13 As explained, it is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.14
In his October 15, 2015 report, Dr. Harrison advised that appellant had been under his
care for several years for asthma. He noted that on June 24, 2013 appellant related that she was
exposed at her job to a pesticide containing cedar oil that was only supposed to be used outdoors.
Dr. Harrison opined that it was probable that such pesticide exposure caused her to develop acute
asthma symptoms. Although his report provides some support for causal relationship, it does not
raise a substantial question as to the correctness of OWCP’s determination that appellant did not
establish the factual component of fact of injury. The Board has held that clear evidence of error
is not established if appellant’s new evidence does not address the issue upon which OWCP
originally denied the claim.15
On appeal appellant’s representative contends that the employing establishment falsely
claimed on the (Form CA-1) that “an investigation revealed that there was no fogging operation
being conducted in the area.” He argues that this false information casts doubt on OWCP’s
finding that there was no clear “fact of injury.” Appellant’s representative notes that the
employing establishment was unable to produce any investigative report and informed him that
“there is no documentation regarding an injury investigation.” He requests that OWCP either
produce the investigative report that it utilized to deny the claim or accept the claim. However,
as noted, the Board does not have jurisdiction over the merits of the claim. Furthermore, the
allegation that the employing establishment falsely claimed to have conducted an investigation
does not raise a substantial question as to the correctness of OWCP’s decision.
Consequently, appellant has not established clear evidence of error on the part of OWCP.
The Board, therefore, finds that, in accordance with OWCP’s internal guidelines and Board
precedent, OWCP properly denied appellant’s request for reconsideration as it was untimely
filed and failed to demonstrate clear evidence of error.

13

Annie L. Billingsley, 50 ECAB 210 (1998).

14

See supra note 7.

15

See supra note 6.

5

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.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Des Moines, IA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1344
Issued: December 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 27, 2014 appellant, through her attorney, filed a timely appeal from the
April 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a loss of wage-earning capacity (LWEC) determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to modify OWCP’s
September 12, 2003 LWEC determination.
FACTUAL HISTORY
This case has previously been before the Board. In a June 18, 2013 decision, the Board
set aside an April 30, 2012 OWCP decision that denied modification of the September 12, 2003
1

5 U.S.C. § 8101 et seq.

LWEC determination. The Board noted that it analyzed the case under the customary criteria for
modifying an LWEC determination, but did not acknowledge FECA Bulletin No. 09-05 or
follow the procedures outlined for claims in which limited-duty positions were withdrawn
pursuant to the National Reassessment Policy (NRP).2 The facts and circumstances surrounding
the prior appeal are incorporated by reference.
In a July 26, 2013 decision, OWCP again denied modification of the LWEC decision.
On August 5, 2013 appellant requested a telephonic hearing before an OWCP hearing
representative.
At the January 16, 2014 hearing, counsel argued that the employing
establishment informed the Office of Personnel Management that appellant was not capable of
working and there was no job available for her. Appellant sought disability retirement benefits.
Counsel argued that the position made available to her was not a bid position, was developed just
for her and was not open to the general public. He noted that the job was not a productive
position, and that appellant could not have been laid off under NRP unless the position was not
productive. Counsel concluded that her position was a “make work” job.
By decision dated April 3, 2014, an OWCP hearing representative affirmed the
July 26, 2013 decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 OWCP procedures at Chapter 2.1501 contain
provisions regarding the modification of a formal LWEC.4 The relevant part provides that a
formal LWEC will be modified when: (1) the original rating was in error; (2) the claimant’s
medical condition has materially changed; or (3) the claimant has been vocationally
rehabilitated.5 Chapter 2.1501 further provides that FECA Bulletin No. 09-05 should be
consulted if the circumstances in the case indicated that the position in question may have been
withdrawn (in whole or in part) as a result of NRP.6 FECA Bulletin No. 09-05 outlines the
procedures OWCP should follow when limited-duty positions are withdrawn pursuant to NRP.
If OWCP has issued a formal wage-earning capacity determination, it must develop the evidence
to determine whether a modification of that determination is appropriate.7 FECA Transmittal
2

Docket No. 12-1297 (issued June 18, 2013). On May 27, 1999 appellant, then a 40-year-old letter carrier, filed
an occupational disease claim for bilateral knee problems due to the walking and standing required by her federal
duties. OWCP accepted her claim for left knee patellofemoral stress syndrome.
3

Katherine T. Kreeger, 55 ECAB 633 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
5

Id. at § 2.1501.3(a).

6

Id. at § 2.815(c)(2)(a).

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

2

No. 13-09 provides information regarding updating OWCP Procedure Manual Chapters 2.814 to
2.816 and 2.1500 to 2.1501.8 OWCP procedures further provide that the party seeking
modification of a formal loss of wage-earning capacity decision has the burden to prove that one
of these criteria has been met.9
OWCP’s procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents his or her wage-earning capacity include the
kind of appointment, that is, whether the position is temporary, seasonal or permanent and the
tour of duty, that is, whether it is part time or full time.10 Further, a makeshift or odd-lot position
designed for a claimant’s particular needs will not be considered suitable.11
ANALYSIS
The Board finds that the April 3, 2014 decision of OWCP must be reversed. The
modified position on which the September 12, 2003 wage-earning capacity determination was
based was makeshift in nature and based on appellant’s particular needs. Appellant has
established that modification of the wage-earning capacity determination is warranted.
OWCP accepted appellant’s claim for left knee patellafemoral stress syndrome. In
separate cases, it also accepted her claim for right arm epicondylitis and right carpal tunnel
syndrome.12 On July 2, 2003 the employing establishment made appellant a permanent
limited-duty rehabilitation job offer as a modified letter carrier and noted that her duties would
be within her medical restrictions. Appellant accepted this position and began work on
July 12, 2003. By decision dated September 12, 2003, OWCP determined that her actual
earnings as a modified city letter carrier fairly and reasonably represented her LWEC, that she
had no loss in earning capacity and that therefore her benefits were reduced to zero. Appellant
continued work at modified duty until September 15, 2010 when she was sent home under NRP,
for the reason that there was no productive work that could be performed within her restrictions.
When an LWEC decision has been issued, as provided in Chapter 2.1501 of the
procedure manual, FECA Bulletin No. 09-05 is to be consulted if a position has been withdrawn
under NRP.13 FECA Bulletin No. 09-05 requires OWCP to develop the evidence to determine
whether a modification of the decision is appropriate.14 FECA Bulletin No. 09-05 directs OWCP
to confirm that the record contains documentary evidence supporting that the position on which
the wage-earning capacity determination was made was an actual bona fide position. It further
8

FECA Transmittal No. 13-09 (issued June 4, 2013).

9

Supra note 4 at Chapter 2.1501.4 (June 2013).

10

Id. at Chapter 2.815.5(c)(1).

11

Id. at Chapter 2.815.5.c(2)(a).

12

See L.P., Docket No. 12-1297 (issued June 18, 2013).

13

Supra note 8.

14

Supra note 9.

3

requires OWCP to review whether current medical evidence supports work-related disability and
establishes that the current need for limited duty and medical treatment is a result of residuals of
the employment injury and to further develop the evidence from both appellant and the
employing establishment if the record lacks current medical evidence.15
FECA Bulletin No. 09-05 further states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the wage-earning
capacity decision and direct the employing establishment to review its files for contemporaneous
evidence concerning the position.
A basis for modifying a wage-earning capacity decision is to establish that the original
decision was in error.16 The Board finds that the modified assignment upon which the
September 12, 2003 LWEC determination was made was makeshift in nature. The Board notes
that in an October 25, 2010 letter, Thomas J. Biddle, a health and resource management
specialist for the employing establishment, noted that appellant worked numerous duties not
specified in the rehabilitation job offer. Mr. Biddle stated that the greatest percentage of the
duties appellant performed were not part of the job offer and that many of the duties she did
perform were make work duties, created by her supervisors.
In a follow-up October 27, 2010 letter, Mr. Biddle stated that the
limited-duty/rehabilitation modified job offer performed by appellant “since July 5, 2003
consisted of odd-lot duties and ‘make work.’” He stated:
“The [LWEC] determination issued as a result of this position appears to have
been made in error and should be modified. The work offered does not reflect
[appellant’s] ability to earn wages.”
Mr. Biddle requested that OWCP modify the LWEC “since it appears that it meets the criteria
held by the Board that the original rating was in error.”
The Board finds that Mr. Biddle’s letters are sufficient to establish that the modified
duties to which appellant was assigned were created to accommodate her restrictions and did not
constitute a bona fide job that would be available to her in the general labor market. The Board
finds that the position does not fairly and reasonably represent her wage-earning capacity and the
September 12, 2003 determination was erroneous. Accordingly, the April 3, 2014 decision will
be reversed.17 As the position on which the September 1, 2003 decision was based was
makeshift in nature, appellant has met her burden of proof to establish that the LWEC
determination should be modified.

15

Id.

16

Supra note 5.

17

A.J., Docket No. 10-619 (issued June 29, 2010); see also A.T., Docket No. 14-82 (issued July 15, 2014).

4

CONCLUSION
The Board finds that appellant has established that modification of the September 12,
2003 LWEC determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1025
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 21, 2021 appellant filed a timely appeal from a June 1, 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.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the $69,177.66
overpayment of compensation which occurred due to his concurrent receipt of Social Security
Administration (SSA) retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018; and (2) whether OWCP properly required recovery of
the overpayment by deducting $400.00 from appellant’s continuing compensation payments every
28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 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 September 4, 2001 appellant, then a 56-year-old data entry technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 20, 2001 he twisted his right knee when his
knee caught on a black residue under his desk as he rose from his chair while in the performance
of duty. He stopped work on August 29, 2001. OWCP accepted the claim for right knee strain
and right knee medial meniscus tear. The record reflects that OWCP paid appellant wage-loss
compensation on the periodic rolls as of July 14, 2002.
By letter dated July 31, 2002, OWCP explained appellant’s entitlement to compensation
benefits. In an accompanying EN1049 form, it advised him, that, since he was covered under the
Federal Employees Retirement System (FERS), it would have to deduct at least part of his SSA
retirement benefit to which he would be entitled based on age, explaining that a portion of a FERS
benefit was included in SSA retirement benefits. Appellant was, therefore, advised to notify
OWCP immediately after filing for or receiving SSA retirement benefits.
On December 26, 2017 SSA forwarded a completed FERS/SSA dual benefits calculation
form to OWCP, noting appellant’s SSA age-related retirement benefit rates with and without
FERS. It noted that appellant began receiving retirement benefits effective September 2010.
In a FERS offset overpayment calculation form dated May 21, 2018 OWCP documented
its calculation of the total overpayment in the amount of $69,177.66 for the period September 1,
2010 until April 28, 2018.
On June 28, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $69,177.66 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from September 1, 2010
through April 28, 2018 was based on credits earned while working for the Federal Government,
and this portion of his SSA was a prohibited dual benefit. OWCP found him at fault in the creation
of the overpayment as he had not reported receipt of SSA retirement benefits on his EN1032 forms.
It informed him of his review rights, via an overpayment action request form, and instructed him
to complete an enclosed overpayment recovery questionnaire Form OWCP-20 and submit
supporting documentation including copies of tax returns, bank account statements, bills and
cancelled checks, pay slips, and other records which supported the income and expenses listed.
OWCP allotted 30 days for him to respond.
On a July 2, 2018 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. He contested OWCP’s findings regarding the fact and
amount of overpayment, and requested waiver of recovery of the overpayment.

2

Docket No. 19-0334 (issued August 7, 2020).

2

On a Form OWCP-20 dated October 10, 2018, appellant noted total monthly income of
$4,312.22 and total monthly expenses of $3,547.61, with assets of $795.00. He attached financial
information to substantiate his expenses.
A prerecoupment hearing was held on October 10, 2018. By decision dated November 14,
2018, the OWCP hearing representative finalized the preliminary determination, finding that an
overpayment of compensation in the amount of $69,177.66 occurred for the period September 1,
2010 through April 28, 2018 because appellant received FECA benefits and benefits from SSA
without the appropriate offset.3 She further found he was at fault in the creation of the overpayment
because he failed to report his SSA retirement benefits and that recovery of the overpayment,
therefore, could not be waived. The hearing representative found that recovery of the overpayment
would be made by deducting $500.00 every 28 days from appellant’s continuing FECA
compensation payments.
Appellant appealed the November 14, 2018 decision to the Board on November 30, 2018.
By decision dated August 7, 2020,4 the Board affirmed in part and set aside in part the
November 14, 2018 decision. The Board found that OWCP properly determined that an
overpayment in the amount of $69,177.66 had been created because appellant concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018. The Board determined, however, that appellant was
without fault in the creation of the overpayment of compensation. The Board remanded the case
for OWCP to consider waiver of recovery of the overpayment.
On remand from the Board’s decision, OWCP provided appellant with another Form
OWCP-20 for his completion, noting that updated financial information was needed for
consideration of waiver of recovery of the overpayment.
In a letter dated February 8, 2021, OWCP’s hearing representative informed appellant that
an oral hearing would be held pursuant to the Board’s remand instructions to consider waiver of
recovery of the overpayment. She requested he complete an updated Form OWCP-20 and provide
supporting financial documentation. Appellant was informed that under 20 C.F.R. § 10.438 the
failure to submit the requested financial information would result in denial of waiver of the
overpayment.
On a Form OWCP-20 dated March 1, 2021, appellant noted monthly income of $2,760.00
from SSA and $144.14 from other benefits, for a total monthly income, without FECA benefits,
of $2,904.14. He listed monthly expenses of $3,490.00, which included $860.00 for rent, $500.00
for food, $100.00 for clothing, $605.00 for utilities, and $225.00 for miscellaneous expenses, he
also noted $1,000 in monthly installment payments to a credit union , and $200.00 in monthly
installment payments to a bank. He listed assets of $4,687.90. He attached numerous financial
documents to substantiate his expenses.

3

The Board notes that the hearing representative incorrectly identified the period of the overpayment as from
September 1, 2010 through December 1, 2017.
4

Supra note 2.

3

A hearing before an OWCP hearing representative was held on March 10, 2021.
By decision June 1, 2021, OWCP’s hearing representative found that, based on the
evidence appellant submitted regarding his income and expenses, his total monthly income was
$4,510.54 and his ordinary and necessary living expenses did not exceed $ 3,886.99. She
determined that recovery of the overpayment would not defeat the purpose of FECA as his monthly
income exceeded his monthly expenses by more than $50.00. The hearing representative further
found that there was no evidence that appellant relinquished a valuable right in reliance on the
additional compensation or changed his position for the worse in reliance on the erroneous
compensation payment such that recovery would be inequitable or against good conscience. The
hearing representative related that recovery of the overpayment would be made by deduction of
$400.00 every 28 days from appellant’s continuing FECA compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA 5 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. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 7 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. 8
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such

5

Supra note 1.

6

J.T., Docket No. 21-0010 (issued September 30, 2021); G.L., Docket No. 19-0297 (issued October 23, 2019).

7

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide those 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. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4(a)(2) and (3) (September 2020).
8

Id. at Chapter 6.400.4b(3)(a), (b).

4

payments or on notice that such payments would be made, gives up a valuable right or cha nges
her position for the worse. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The Board notes that after it remanded the case to OWCP for consideration of waiver,
OWCP provided appellant with another Form OWCP-20 to complete with updated financial
information. A prerecoupment hearing was held on March 10, 2021.
As appellant was found to be without 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. The hearing
representative noted that the financial documentation appellant submitted prior to the hearing
represented his current monthly income and expenses. OWCP considered app ellant’s updated
financial information, as reported on appellant’s Form OWCP 20, to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
The evidence of record establishes that appellant has monthly income totaling $4,510.54
and average monthly necessary expenses totaling $3,886.99. Appellant’s monthly income,
therefore, exceeds his monthly expenses by $623.55. As appellant’s monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, he has not established that he needs
substantially all of his income for ordinary and necessary living expenses. 10
Appellant also has not established that recovery of the overpayment would b e against
equity and good conscience. He has not submitted evidence that he would experience severe
financial hardship in attempting to repay the debt, or that in reliance on the overpayment he gave
up a valuable right or changed his position for the worse.11 Therefore, OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and good
conscience.
LEGAL PRECEDENT -- ISSUE 2
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,

9

20 C.F.R. § 10.437(b)(1).

10

See G.L., Docket No. 19-0297 (issued October 23, 2019).

11

J.T., supra note 6; L.D., Docket No. 18-1317 (issued August 17, 2019); William J. Murphy, 41 ECAB 569 (1989).

5

taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly requested recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation.
In determining whether appellant could repay the overpayment through $400.00
deductions from continuing compensation, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method would minimize resulting
hardship. The Board finds that OWCP gave due regard to the financial information provided,
noting that appellant was not deemed to need substantially all of his monthly income to meet
current and ordinary living expenses as monthly income exceeds monthly expenses by $623.55.
Therefore, the Board finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment. The
Board also finds that OWCP properly required repayment of the overpayment by deduction of
$400.00 every 28 days from his continuing compensation payments.

12

20 C.F.R. § 10.441(a); J.T., supra note 6; A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler,
39 ECAB 1056, 1062 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7