United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. CAPITOL POLICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 18-0388
Issued: July 19, 2018

Case Submitted on the Record

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

JURISDICTION
On December 18, 2017 appellant filed a timely appeal from an August 2, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated March 27, 2017, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing before
an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument. After exercising its discretion, by order dated May 16, 2018,
the Board denied appellant’s request, finding that his arguments could be adequately addressed in a decision based on
a review of the case record. Order Denying Request for Oral Argument, Docket No. 18-0388 (issued May 16, 2018).

FACTUAL HISTORY
On January 13, 2017 appellant, then a 71-year-old firearms instructor, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he developed left knee and leg swelling, as
well as pain due to prolonged standing while working at the firing range in the performance of
duty. He did not stop work following the alleged incident.
In support of his claim appellant submitted January 15, 2017 visit summary sheets from
Olabisi O. Oladapo, a certified physician assistant, diagnosing left knee pain, and a January 15,
2017 x-ray interpretation.
In a January 24, 2017 authorization for examination and/or treatment (Form CA-16), M.S.,
an employing establishment official, authorized treatment for the claimed January 13, 2017
employment incident.
On January 30, 2017 OWCP received a January 15, 2017 report from Dr. Emily H. Hsu,
an examining Board-certified internist, diagnosing left knee pain. Under history of injury, Dr. Hsu
noted that appellant complained of throbbing and aching left knee pain for the prior two weeks,
which was aggravated three days prior by prolonged standing and walking at the firing range.
On January 31, 2017 appellant was seen by Dr. Alan Nagel, an examining Board-certified
orthopedic surgeon. Dr. Nagel provided examination findings, noted a January 13, 2017 work
injury, reviewed diagnostic testing, and diagnosed unspecified left knee dislocation.
In a February 8, 2017 development letter, OWCP notified appellant that his claim was
initially administratively handled to allow medical payments, as his claim appeared to involve a
minor injury resulting in minimal or no lost time from work. However, the merits of appellant’s
claim had not been formally considered and his claim had been reopened for consideration of the
merits because he had submitted a medical authorization form. OWCP informed him that the
evidence of record was insufficient to establish his traumatic injury claim. It also advised appellant
of the type of medical and factual evidence needed and afforded him 30 days to submit additional
evidence.
Subsequent to the February 8, 2017 letter, OWCP received page 2 of the Form CA-16 dated
January 31, 2017 from Dr. Nagel and treatment notes from Potomac Valley Orthopedic Associates
dated January 31 and February 21, 2017.
By decision dated March 27, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the January 13, 2017 incident occurred as
alleged.
Appellant subsequently submitted a supplemental statement dated April 27, 2017 as well
as physical therapy notes and reports from Dr. Nagel dated January 31, February 21 and
March 7, 2017.
On April 27, 2017 appellant requested an oral hearing before an OWCP hearing
representative. The request was signed and dated April 27, 2017.

2

By decision dated August 2, 2017, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as untimely filed. It found that OWCP had issued its decision on
March 27, 2017, while appellant’s hearing request was signed and dated April 27, 2017, more than
30 days after OWCP’s decision. The Branch of Hearings and Review concluded that appellant
was not entitled to a hearing as a matter of right, as the request was submitted more than 30 days
after OWCP’s decision. It also considered whether to grant appellant a discretionary hearing, but
determined that the issue in this case could equally well be addressed by requesting reconsideration
before OWCP’s district office and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his or her claim before a representative of the Secretary.3
A hearing is a review of an adverse decision by an OWCP hearing representative. Initially,
the claimant can choose between two formats: an oral hearing or a review of the written record.
In addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.4 A request for either an oral hearing or a review of the written record must be sent,
in writing, within 30 days of the date of the decision for which the hearing is sought.5 A claimant
is not entitled to a hearing or a review of the written record if the request is not made within 30
days of the date of the decision.6
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record. In such a case, it will so advise the
claimant with reasons.7
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for an oral
hearing was untimely filed. OWCP’s regulations provide that the hearing request must be sent
within 30 days of the date of the decision for which a hearing is sought. The 30th day following
March 27, 2017 was Wednesday, April 26, 2017. Because appellant’s request was signed, dated

3

Id. at § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

M.G., Docket No. 18-0099 (issued April 26, 2018); G.W., Docket No. 10-0782 (issued April 23, 2010); James
Smith, 53 ECAB 188 (2001); id. at § 10.616(a).
6

See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

7

M.G., supra note 5; G.W., supra note 5.

3

and received on April 27, 2017, more than 30 days after OWCP’s March 27, 2017 decision, it was
untimely filed and he was not entitled to an oral hearing as a matter of right.8
Although appellant’s request for an oral hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion.9 OWCP’s Branch of Hearings
and Review properly exercised its discretion in denying appellant’s hearing request as the issue of
whether appellant established that the January 13, 2017 employment incident occurred as alleged
could equally well be addressed by a request for reconsideration before OWCP. The Board finds
that the Branch of Hearings and Review properly exercised its discretionary authority in denying
appellant’s request for a hearing.10 The only limitation on OWCP’s authority is reasonableness.
An abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.11 In this case, the evidence of record does not establish that OWCP abused
its discretion in denying appellant’s request for a hearing. Accordingly, the Board finds that
OWCP properly denied appellant’s hearing request as untimely filed.
On appeal appellant argues that he did not receive the developmental letter requesting
information from his physician. Once he learned that medical information was required he
immediately submitted it. As noted above, however, the only issue presently before the Board is
whether OWCP properly denied appellant’s request for an oral hearing as untimely. As the Board
lacks jurisdiction to review the underlying merits of appellant’s claim, it cannot review appellant’s
arguments regarding his traumatic injury claim on appeal.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing before
an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.

8

See B.H., Docket No. 13-1545 (issued December 12, 2013).

9

F.M., Docket No. 18-0161 (issued May 18, 2018); R.V., Docket No. 17-1286 (issued December 5, 2017).

10

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).
11

F.M., supra note 9; Samuel R. Johnson, 51 ECAB 612 (2000).

12

The Board notes that a Form CA-16 authorization for examination and/or treatment was issued by the employing
establishment on January 24, 2017. When the employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 2, 2017 is affirmed.
Issued: July 19, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-1680
Issued: May 13, 2010

Case Submitted on the Record

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

JURISDICTION
On June 12, 2009 appellant filed a timely appeal from a January 8, 2009 decision of the
Office of Workers’ Compensation Programs regarding two overpayments of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,990.29 for the period August 15 to
September 2, 2006 and a $56,586.93 overpayment, compromised to $19.559.18, for the period
September 3, 2006 to January 19, 2008; (2) whether the Office properly denied waiver of the
$1,990.29 overpayment; and (3) whether the Office properly determined that appellant was at
fault in the creation of the $56,586.93 overpayment and therefore not entitled to waiver.
On appeal, appellant does not contest the fact or amounts of the overpayments or the
Office’s calculations in compromising the $56,586.93 overpayment to $19,559.18. He asserts
that he cannot repay the $1,990.29 overpayment due to financial hardship as he needed all of his
income to meet his expenses. Appellant also contends that the Office hearing representative did
not properly review his financial information.

FACTUAL HISTORY
The Office accepted that on or before August 31, 2004 appellant, then a 56-year-old
building equipment mechanic, sustained right carpal tunnel syndrome in the performance of
duty. Appellant underwent right median nerve release on November 1, 2004, authorized by the
Office.
On December 9, 2004 appellant claimed a schedule award. The Office obtained an
impairment evaluation from appellant’s attending physician on January 9, 2006, finding that he
attained maximum medical improvement. An Office medical adviser reviewed the report and
opined that appellant had a 10 percent impairment of the right upper extremity due to median
nerve deficits according to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed.).
By decision dated September 14, 2006, the Office granted appellant a schedule award for
a 10 percent permanent impairment of the right upper extremity. The period of the award ran for
218.4 days or 31.2 weeks, from January 9 to September 2, 2006. The payments were made by
check. The Office erroneously continued to issue schedule award payments from September 3,
2006 to January 19, 2008.
By notice dated March 25, 2008, the Office advised appellant of its preliminary
determination that an overpayment of $56,586.93 occurred from September 3, 2006 to
January 19, 2008 as the Office paid compensation under schedule award compensation after it
expired on September 2, 2006.1 It made the preliminary finding that appellant was at fault in
creation of the overpayment as he accepted payments he knew or should have known to be
incorrect. The September 14, 2006 decision clearly stated that the award expired on
September 2, 2006. The Office afforded appellant 30 days to submit additional evidence and
argument and to request a hearing.
By notice dated March 28, 2008, the Office advised appellant of its preliminary
determination that a $1,990.29 overpayment of compensation occurred in his case for the period
August 16 to September 2, 2006. It noted that the schedule award properly began on January 9,
2006, the date of maximum improvement. However, the 218.4 day entitlement period ended on
August 15, 2006, not September 2, 2006 as set forth in the September 14, 2006 schedule award
decision. The Office found that appellant was not at fault in creating the overpayment. It
afforded him 30 days to submit additional evidence and to request a hearing.
In an April 24, 2008 letter, appellant requested a prerecoupment hearing regarding both
overpayments. He asserted that he was not at fault in their creation and that repaying the debt
would cause severe financial hardship.
At the prerecoupment hearing, held September 23, 2008, appellant contended that the
employing establishment and the Office conspired to ruin him financially by creating the
overpayment. He noted that most of the compensation paid went to support an adult daughter

1

The Office noted that, from September 3, 2006 to January 19, 2008, appellant received 1 payment of $3,214.93,
7 payments of $3,096.00 totaling $21,672.00 and 10 payments of $3,170.00 totaling $31,700.00. It added these
amounts to equal $56,586.93.

2

and her minor child, who resided with him. Appellant indicated that another adult daughter also
lived in the household.
Appellant submitted financial information and documentation showing $2,949.34 in
monthly household income and $2,896.09 in monthly expenses.2 He noted assets of $5,550.00 in
cash, savings and bonds and an automobile worth $10,000.00.
By decision dated January 8, 2009, the Office affirmed the March 25 and 28, 2008
overpayments. It found that appellant was not at fault in creation of the $1,990.29 overpayment
as the Office erred in determining the schedule award period. The Office denied waiver as
appellant had $13,913.00 in qualifying asserts, exceeding the $8,000.00 resource base for a
married claimant.3 Also, appellant’s household income of $2,949.34 exceeded his ordinary and
necessary living expenses of $2,896.09 by more than $50.00 a month. The Office also denied
waiver as he did not demonstrate that detrimental reliance on the overpaid compensation caused
a financial loss. The Office further found that appellant was at fault in creation of the $56,586.93
overpayment as the September 14, 2006 decision stated that the schedule award expired on
September 2, 2006 but appellant continued to deposit compensation checks through
January 2008. As appellant was at fault, the $56,586.93 overpayment was not subject to waiver.
The Office directed recovery of the overpaid amount by paying $50.00 a month at a three percent
interest rate. It compromised the debt principal to $19,559.18.4 The Office noted that there was
no evidence to establish that anyone conspired against appellant regarding his compensation
benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act5 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.6 Section 8129(a) of the Act provides, in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”7 The
2

Appellant listed the following monthly expenses: $470.00 mortgage payment; $670.00 food; $150.00 clothing;
$455.00 utilities; $450.00 in miscellaneous expenses; and $243.09 car loan payment.
3

It is unclear from the record if the Office considered appellant’s minor grandchild, who resided with him, as a
dependent, which would allocate an additional $960.00 in assets under the Federal (FECA) Procedure Manual, Part
6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6 (May 2004). However, this is not dispositive,
as appellant’s allowable assets of $13,913.00 would still exceed the $8,000.00 resource base with the additional
$960.00 allowance.
4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Compromise to Limit the Repayment Period,
Chapter 6.300.5 (May 2004) provides that the Office must compromise the debt principal where it is necessary to
limit the repayment period. Compromise must be considered if the application of charges will increase the period of
indebtedness by more than 35 percent. As applied to this case, the repayment period must be reduced to 1,527.85
months, thereby reducing the principal debt to $19,559.18. Appellant does not contest the accuracy of this
calculation.
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8102(a).

7

Id. at § 8129(a).

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Office’s procedure manual identifies various situations when overpayments of compensation
may occur, including when a claimant receives schedule award compensation after the expiration
of the award.8
ANALYSIS -- ISSUE 1
Appellant claimed a schedule award for permanent impairment of the right upper
extremity due to accepted carpal tunnel syndrome. On September 14, 2006 the Office granted a
schedule award for a 10 percent permanent impairment of the right upper extremity. The
decision specified that the period of the award ran from January 9 to September 2, 2006.
However, the Office continued payment from September 3, 2006 to January 19, 2008, after the
schedule award expired.
The evidence reflects and appellant does not dispute that he received $56,586.93 in
compensation from September 3, 2006 to January 19, 2008. The Board therefore finds that the
Office correctly determined that appellant received an overpayment of compensation in the
amount of $56,586.93 for the period in question.9
While developing the $56,586.93 overpayment issue, the Office discovered that the
schedule award should have expired on August 15, 2006. However, the evidence establishes and
appellant does not dispute that the Office issued $1,990.29 in compensation or the period
August 16 to September 2, 2006. The Board therefore finds that the Office correctly determined
that appellant received an overpayment of $1,990.29 for that period.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.10 These statutory
guidelines are found in section 8129(b) of the Act which states: Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
[the Act] or would be against equity and good conscience.11 Since the Office found appellant to
be without fault in the creation of the overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
Section 10.436 of the implementing regulations12 provide that recovery of an
overpayment will defeat the purpose of the Act if 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
8

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
9

Alberto Pineiro, 51 ECAB 310 (2000).

10

Robert Atchison, 41 ECAB 83 (1989).

11

See 5 U.S.C. § 8129(b).

12

20 C.F.R. §10.436.

4

meet current ordinary and necessary living expenses; and (b) the beneficiary’s asserts do not
exceed a specified amount as determined [by the Office] from data furnished by the Bureau of
Labor Statistics.13 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.14
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 in attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.15
ANALYSIS -- ISSUE 2
The Office found that appellant was not at fault in the matter of the $1,990.29
overpayment, so he was eligible for consideration of waiver. Appellant’s overpayment recovery
questionnaire showed that he had assets of $13,913.00, exceeding the specified resource base of
$8,000.00 for a claimant with a spouse. By regulation, then, recovery of the overpayment would
not cause hardship and would not defeat the purpose of the Act.
On appeal, appellant contends that the Office should grant waiver because he needs all
his monthly income to meet monthly expenses. That alone, however, is not enough to establish
that recovery would defeat the purpose of the Act. “Defeat the purpose of the Act” has two
components, both of which must be met. Appellant would have to establish that he needs
substantially all of his current income to meet current ordinary and necessary living expenses.
He would also have to establish that his assets do not exceed $8,000.00. So even if appellant’s
expenses did exceed his income, he would not be entitled to waiver on the grounds of hardship.
Appellant asserts that the Office did not properly review his financial information.
However, the Board finds that the Office hearing representative thoroughly reviewed appellant’s
supporting documentation and gave due regard to all appropriate factors in determining that the
overpayment was not eligible for waiver.
Appellant does not argue, and the record does not establish, that recovery of the debt
would be against equity and good conscience. He did not show that he gave up a valuable right
or changed his position for the worse in reliance on the overpayment.
Because recovery of the overpayment would not defeat the purpose of the Act and would
not be against equity and good conscience, the Office properly denied waiver. Appellant must

13

An individual’s assets must exceed a resource base of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment; see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6 (May 2004).
14

Sherry A. Hunt, 49 ECAB 467 (1998).

15

20 C.F.R. § 10.437 (1999).

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repay the debt. The Board will affirm the Office’s January 8, 2009 decision on the denial of
waiver.16
LEGAL PRECEDENT -- ISSUE 3
Section 10.433 of the implementing regulations provide that 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.17 Under the regulations, a recipient will be found
to be at fault with respect to creating an overpayment if he or she has done any of the following:
(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 was
incorrect.18
Section 10.433(b) of the Office’s regulations provides, in relevant part, that the
determination of fault “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.”19
ANALYSIS -- ISSUE 3
The Office found that appellant was at fault in the creation of the $56,586.93
overpayment because he accepted compensation payments that he knew or should have known to
be incorrect.
The September 14, 2006 decision stated that the schedule award expired on
September 2, 2006. The Office continued to issue compensation checks from September 3, 2006
through January 19, 2008. Despite being informed that the schedule award had expired on
September 2, 2006, appellant deposited these checks, totaling $56,596.93, into his bank account.
Appellant accepted payments which he knew or should have known to be incorrectly issued after
expiration of the schedule award. Therefore, the Office properly found appellant at fault in
creation of the overpayment. The fact that the Office may have been negligent in issuing the
payments does not mitigate this finding.20
The Board notes that it does not have jurisdiction to review the Office’s determination
that the overpayment would be recovered by repayment of $50.00 per month on a principal
compromised to $19,559.18. The Board’s jurisdiction is limited to reviewing those cases where

16

The Board notes that it does not have jurisdiction to review the Office’s finding regarding how the
overpayment should be recovered. The Board’s jurisdiction is limited to reviewing those cases where the Office
seeks recovery from continuing compensation under the Act. Judith A. Cariddo, 55 ECAB 348, 353 (2004).
17

Id.

18

20 C.F.R. § 10.433(a)(3).

19

Id. at § 10.433(b).

20

Id. at § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

6

the Office seeks recovery from continuing compensation under the Act.21 Appellant is not in
receipt of continuing compensation.
The Office properly determined that appellant was at fault in the creation of the
$56,586.93 overpayment and therefore not entitled to waiver.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,990.29 for the period August 15 to
September 2, 2006 and a $56,586.93 overpayment, compromised to $19.559.18, for the period
September 3, 2006 to January 19, 2008. The Board further finds that the Office properly denied
waiver of both overpayments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2009 is affirmed.
Issued: May 13, 2010
Washington, DC

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

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

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

21

Judith A. Cariddo, 55 ECAB 348, 353 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 10-1105
Issued: December 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 15, 2010 appellant filed a timely appeal from a February 23, 2010 merit
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 merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has a back
condition that was caused or aggravated by factors of her federal employment. On appeal, she
asserts that the February 23, 2010 decision is contrary to fact and law.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 18, 2009,
the Board found that the medical evidence of record was insufficient to establish that appellant’s

back condition was causally related to factors of her federal employment.1 The law and facts of
the previous Board decision are incorporated herein by reference.
On December 15, 2009 appellant, through her attorney, requested reconsideration and
submitted a December 11, 2008 report, in which Dr. Robert D. Zaas, an attending Boardcertified orthopedic surgeon, noted appellant’s report that she was working limited duty and her
complaints of continued back pain that were worse with prolonged standing and greatly
increased with repeated bending, twisting or lifting. Dr. Zaas noted magnetic resonance imaging
(MRI) scan findings of a disc bulge at L3-4 and a disc herniation at L4-5 and physical
examination findings of lumbar tenderness and diminished range of motion. He advised that the
claim had been accepted for lumbar sprain, sprain/strain of the hips, sprain/strain of the left knee,
left knee chondromalacia patella and lumbar radiculopathy and opined that these conditions were
directly related to a December 27, 2007 work incident. In a March 21, 2009 treatment note,
Dr. Zaas described shoulder, neck and back complaints and appellant’s report that she had not
worked since January 31, 2009. He again described MRI scan findings, noted lumbar tenderness
and restricted range of motion on physical examination and repeated the knee and back
diagnoses he believed had been accepted. Dr. Zaas also stated that a March 7, 2006 work injury
had been accepted for sprain/strain of the cervical spine, bilateral shoulder sprain, rotator cuff
syndrome and rotator cuff sprain. He concluded that appellant was totally disabled “as a result
of the December 27, 2007 claim, as well as impairments from the March 7, 2006 work accident.”
By report dated November 20, 2009, Dr. Zaas advised that he had seen appellant on four
prior occasions, the most recent on May 19, 2009, when she had complaints of low back pain
radiating into her left leg, most consistent with lumbar radiculopathy at L5. He noted that a
December 21, 2007 MRI scan demonstrated abnormalities at L3-4 consistent with degenerative
disc disease and a large disc herniation at L4-5 with compression at the left L5 nerve root.
Dr. Zaas stated:
“In my opinion, the L4-5 dis[c] herniation with left lumbar radiculopathy is
causally related to the December 27, 2007 incident at work when [appellant]
repeatedly bent forward, lifted, pushed and pulled mail. [Appellant] had worked
for the [employing establishment] for 19 years. She never previously had any
major problems with her back. My opinion with regard to causal relationship of
the herniated dis[c] to the December 27, 2007 accident is based on the history I
received from [appellant], her symptoms and physical findings on four
examinations in my office and the abnormal December 21, 2007 MRI scan, which
correlates with her symptoms and physical findings.”
In a merit decision dated February 23, 2010, the Office denied modification of the prior
decision.

1

Docket No. 09-621, (issued September 18, 2009).

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim, regardless of whether the asserted claim
involves traumatic injury or occupational disease, an employee must satisfy this burden of
proof.3
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 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) a 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 diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
2

5 U.S.C. §§ 8101-8193.

3

Roy L. Humphrey, 57 ECAB 238 (2005).

4

20 C.F.R. § 10.5(ee).

5

Roy L. Humphrey, supra note 3.

6

D.G., 59 ECAB 743 (2008).

7

Id.

8

Roy L. Humphrey, supra note 3.

3

ANALYSIS
The Board finds the medical evidence insufficient to establish that appellant has a back
condition causally related to her federal employment. In his reports dated December 11, 2008
and March 21, 2009, Dr. Zaas assumed that a lumbar sprain and lumbar radiculopathy had been
accepted and advised that these were related to a December 27, 2007 work incident. The record
does not contain a description of a December 27, 2007 work incident and he did not describe this
incident or explain how it caused the claimed back condition in either of these reports. Dr. Zaas’
November 20, 2009 report is internally inconsistent as he stated that the December 21, 2007 MRI
scan study findings were caused by the December 27, 2007 employment incident. The MRI scan
study, however, was done on December 21, 2007, six days before the implicated work injury of
December 27, 2007. Dr. Zaas provided no explanation for the apparent discrepancy in these
dates or rationale in support of his conclusions. As his opinion is equivocal in nature and
unsupported by medical rationale, it is of diminished probative value and insufficient to meet
appellant’s burden.9
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.10 It is appellant’s burden to establish that she has a back condition
causally related to factors of her federal employment. She cannot rely on Dr. Zaas’
unrationalized opinion and as she submitted no additional evidence, she did not establish that she
sustained an employment-related back condition.
CONCLUSION
The Board finds that appellant did not establish that she sustained a back condition
causally related to factors of her federal employment.

9

D.D., 57 ECAB 734 (2006).

10

A.D., 58 ECAB 149 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
TENNESSEE VALLEY AUTHORITY,
NUCLEAR POWER, Chattanooga, TN,
Employer
__________________________________________

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

Docket No. 13-1988
Issued: April 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 28, 2013 appellant filed a timely appeal from a May 29, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease
claim. 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 his burden of proof to establish that he sustained
hearing loss in the performance of duty.
FACTUAL HISTORY
On February 4, 2013 appellant, then a 68-year-old former pipefitter, filed an occupational
disease claim (Form CA-2) alleging bilateral hearing loss as a result of employment-related noise
1

5 U.S.C. § 8101 et seq.

exposure in his work at the employing establishment. He stated that he first became aware of his
condition and of its relationship to his employment on January 23, 2013. Appellant notified his
supervisor on February 7, 2013. The employing establishment reported that he was last exposed
to the alleged noise exposure on June 13, 1983.
By letter dated February 11, 2013, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment and all nonoccupational exposure to noise. OWCP also requested that he provide
medical documentation pertaining to any prior treatment he received for ear or hearing problems.
It requested that the employing establishment provide noise survey reports for each site where
appellant worked, the sources and period of noise exposure for each location, whether he wore
ear protection and copies of all medical examinations pertaining to hearing or ear problems,
including preemployment examinations and audiograms.
Appellant submitted an unsigned audiometry examination dated January 23, 2013. It
revealed the following decibel (dBA) losses at 500, 1,000, 2,000 and 3,000 hertz (Hz): 15, 25,
20 and 35 for the right ear and 40, 45, 35 and 30 for the left ear. Auditory discrimination scores
revealed 88 percent for the right and 88 percent for the left.
In a February 18, 2013 narrative statement, appellant responded to OWCP’s
questionnaire regarding his hearing loss. He noted that he was a convenience store owner from
1969 to 1975 and was not exposed to noise during this employment. Appellant worked for the
employing establishment as a pipefitter from 1975 to 1982. He stated that his employment
exposed him to loud noise for 8 to 10 hours a day, 5 to 7 days a week. Safety devices were not
used and appellant was not provided hearing protection. He stated that he was not in the military
service, had no prior ear or hearing problems and was not involved in any hobbies which
exposed him to loud noises. Appellant first noticed his hearing loss on January 23, 2013 when
he began experiencing hearing problems, ringing in the ears and speaking in loud tones.
By letter dated March 1, 2013, the employing establishment controverted the claim
stating that it was untimely filed. It reported that appellant worked as an employee until June 13,
1983, the date he was last exposed to the alleged factors he attributes to his hearing loss. The
employing establishment noted that he became aware of his hearing loss 30 years after his last
exposure and would have known about it soon after leaving the employing establishment
in 1983. It stated that only one audiogram was obtained during appellant’s employment in 1979.
Because a second audiogram was not performed during his employment, no comparison could be
made and evidence does not exist of injury.
The employing establishment noted that appellant worked as a steamfitter at Bellefonte
Construction Site from June 4, 1979 through June 13, 1983. The majority of the work (6 to 7
hours per day, 5 days per week) was done in areas of the plant without any exposure to noise.
Some work (1 to 2 hours per day, 5 days per week) may have been around turbines, pressurizers
and grinders where noise level surveys indicated readings of 86 to 90 dBA. Since 1973, hearing
protection had been provided and was mandatory in the areas worked by appellant. An official
employment history was provided noting his employment for 3.23 years.

2

The employing establishment also provided appellant’s June 1, 1979 audiogram and
hearing conservation data. The audiogram revealed the following dBA losses at 500, 1,000,
2,000 and 3,000 Hz: 15, 10, 10 and 15 for the right ear and 15, 20, 20 and 15 for the left ear.
By decision dated May 29, 2013, OWCP denied appellant’s claim. It found that he filed
a timely claim but failed to submit sufficient medical evidence because only one audiogram was
received from his employment at the employing establishment. Appellant also failed to provide
an accurate work history, noting that his employment history was unclear after his departure
from the employing establishment.
LEGAL PRECEDENT
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.2 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.3
Appellant has the burden of establishing by weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.4 Neither the condition becoming apparent during a period of employment
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.5
FECA’s schedule award provision and its implementing regulations6 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.7 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
2

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Stanley K. Takahaski, 35 ECAB 1065 (1984).

5

See John W. Butler, 39 ECAB 852, 858 (1988).

6

20 C.F.R. § 10.404.

7

5 U.S.C. § 8107(c)(13).

3

Impairment (A.M.A., Guides) has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is determined by first
calculating the loss in each ear using the formula for monaural loss: the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.9 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.10
ANALYSIS
In its May 29, 2013 decision, OWCP found that the evidence of record failed to support
the claimed noise exposure at work. The factual evidence, however, establishes appellant’s
occupational exposure to noise while performing his duties as a pipefitter. The record reflects
that he worked as a pipefitter/steamfitter from June 4, 1979 through June 13, 1983 at Bellefonte
Construction Site. Appellant stated that he was exposed to hazardous noise for 8 to 10 hours a
day, 5 to 7 days a week. The employing establishment stated that the majority of the work
(6 to 7 hours per day, 5 days per week) was done in areas of the plant without any exposure to
noise. Some work (1 to 2 hours per day, 5 days per week) may have been around turbines,
pressurizers and grinders where noise level surveys showed readings of 86 to 90 dBA. The
Board finds that appellant has not submitted sufficient evidence to prima facie establish that he
sustained hearing loss causally related to noise exposure in his federal employment.11
Appellant submitted an unsigned audiometric report dated January 23, 2013. This report
did not address the reliability of the audiometric evaluation and was not accompanied by an
otologic examination report, which discussed the cause of his hearing loss. The Board has
recognized OWCP requirements regarding audiometric and otologic examination.12 OWCP
requires that the employee undergo both audiometric and otologic examination; that the
audiometric testing be performed by an appropriately certified audiologist; that the otologic
examination be performed by an otolaryngologist certified or eligible for certification by the
American Academy of Otolaryngology and that the audiometric and otologic examination be
8

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

9

A.M.A., Guides (6th ed. 2009).

10

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009); E.S., 59
ECAB 249 (2007).
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c) (February 2013).
12

See J.H., 59 ECAB 377 (2008).

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performed by different individuals as a method of evaluating the reliability of the findings.
OWCP’s procedures require that all audiological equipment authorized for testing meet the
calibration protocol contained in the accreditation manual of the American Speech and Hearing
Association and that audiometric test results include both bone conduction and pure tone air
conduction thresholds, speech reception thresholds and monaural discrimination scores. The
otolaryngologist’s report must include: date and hour of examination; date and hour of
employee’s last exposure to loud noise; a rationalized medical opinion regarding the relationship
of the hearing loss to the employment-related noise exposure and a statement of the reliability of
the tests.13
The unsigned audiometric report of record lacks the indicia necessary to establish a
proper calibration protocol or to meet the standards for audiometric and otologic evaluation.
Furthermore, the Board notes that appellant did not respond to OWCP’s request for a full
employment history, without such appellant has not established causal relationship.
The Board finds that appellant was exposed to occupational noise during his employment
at the employing establishment from 1979 to 1983; but he did not meet his burden of proof to
establish that he sustained a hearing causally related to his employment.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained hearing loss in the
performance of duty.

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a) (September 1994).
14

Bobby R. Sadler, Docket No. 05-1327 (issued September 23, 2005).

5

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: April 18, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0500
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a July 14, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0500.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 14, 2021 decision was January 10, 2022. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
July 14, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0500 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained his failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the ap peal docketed
as No. 22-0500, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0500 is dismissed.
Issued: March 22, 2022
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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


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

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

Docket No. 10-1028
Issued: January 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 3, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated September 16, 2009. 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 sustained a low back condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 53-year-old distribution/window clerk, filed an occupational disease claim
on February 9, 2009, alleging his back condition was causally related to employment factors.1
1

Appellant did not specify on the form the kind of condition for which he was seeking compensation. The Office
adjudicated this claim as one based on a claimed lower back condition, given the fact that the medical evidence
appellant submitted pertained mostly to his lower back. The record also contains references to appellant being
treated for pain in his left leg; however, the medical evidence contains no diagnosis or condition pertaining to the
left leg.

He asserted that he experienced an aggravation of an injury which required surgery 17 years prior.
Appellant went to a physician for treatment of his left leg but was subsequently referred to another
physician, who diagnosed his back condition and recommended surgery.
On February 23, 2009 the Office advised appellant that it required additional factual and
medical evidence to determine his eligibility for benefits. It asked him to submit a
comprehensive report from a treating physician describing his condition and an opinion as to
whether the claimed condition was causally related to his federal employment.
Appellant submitted an undated Form CA-17, which outlined work restrictions and
indicated that he could work an eight-hour day.
In a February 2, 2009 report, Dr. Robert L. Ledford, Board-certified in internal medicine,
stated that appellant had been experiencing lumbago for a week. Appellant’s back began to
stiffen up due to lifting at work. Dr. Ledford related that appellant began to have a tingly feeling
in his left leg three days prior similar to that which he experienced when he previously
underwent back surgery.
On February 4, 2009 Dr. Daniel S. Burrus, Board-certified in orthopedic surgery, advised
that appellant experienced back and left lower extremity pain for approximately five days, which
became severe. Appellant did not relate a specific history of injury but described a previous
lumbar laminectomy in 1991. He considered his current pain similar to that he experienced at
that time. Appellant also referenced an arthritis condition. On examination Dr. Burrus found
that appellant had some mild dysrhythmia with mild sciatic tension on the right. He stated that
lumbar x-ray results showed degenerative changes, particularly at L4-5 and L5-S1. Dr. Burrus
diagnosed lumbar radicular syndrome. In a February 13, 2009 report, he again stated that
appellant had some positive sciatic tension and suspected a disc herniation. Dr. Burrus noted
lower extremity pain, numbness and tingling that varied in intensity.
Appellant underwent a magnetic resonance imaging (MRI) scan on February 13, 2009.
At the L4-5 level, he had a small right posterolateral cranial extrusion or sequestration abutting
the exiting right L4 root and displacing the right L5 root. There was also a suspected tiny left
posterolateral caudal extrusion or sequestration. The MRI scan showed posterior endplate spurs
abut the left S1 root at the L4-5 level, with minimal indication of disc herniation.
In a March 3, 2009 report, Dr. Ledford stated that appellant was experiencing back pain.
He opined that appellant’s back pain was partly attributable to his work-related lifting and
bending for more than 20 years.
By decision dated April 17, 2009, the Office denied the claim, finding that appellant
failed to submit sufficient medical evidence to establish that his back condition was related to
factors of employment.
On July 3, 2009 appellant requested reconsideration.
A March 11, 2009 report from Tennessee Orthopedic Alliance listed that appellant could
return to light duty on March 16, 2009 with restrictions on lifting, bending, twisting and
prolonged sitting/standing.
2

In a May 8, 2009 report, Dr. Ledford stated that he examined appellant on February 2,
2009, at which time he complained of left leg and low back pain. He advised that the cause was
sciatica, which was a lower back problem. Dr. Ledford opined that appellant had a history of
sciatica, which triggered his leg and back pain.
In a May 18, 2009 note, Dr. John Klemin, a chiropractor, stated that he treated appellant
for a health condition. He released appellant to return to normal duties as of May 18, 2009.
In a report dated May 28, 2009, Dr. W. Casey Beardon, a chiropractor, stated that
appellant underwent spinal decompression and manipulative therapy from March 4 to April 21,
2009 to treat a chronic, recurring, bulging disc, with stenosis of the lumbar spine. He opined that
appellant’s condition largely stemmed from residuals of his previous lumbar surgery,
complicated and accelerated by the repetitive movements required by his job.
By decision dated September 16, 2009, the Office denied modification of the April 17,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
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) a 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
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 usually rationalized medical
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
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

3

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.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that his claimed low back condition was related to factors of his employment. For this reason, he
has not discharged his burden of proof.
Appellant submitted reports from Drs. Ledford and Burrus, who related findings of lower
back pain on examination and diagnosed lumbago, lumbar radicular syndrome and degenerative
arthritis at L4-5 and L5-S1. Neither physician, however, provided rationalized medical opinion
addressing how the claimed conditions or disability was causally related to his employment
duties. Dr. Ledford stated in a February 2, 2009 report that appellant had experienced back
stiffness because his job duties entailed frequent lifting. He related that appellant also had
tingling in his left leg, which he likened to the sensation he experienced when he underwent back
surgery in 1991. Dr. Ledford stated that appellant had lumbago. On March 3, 2009 he reiterated
that appellant was experiencing back pain, which he attributed to 20 years of work-related lifting
and bending. On May 8, 2009 Dr. Ledford noted again that appellant had complaints of left leg
pain and lower back pain and diagnosed sciatica, the condition which triggered his leg and lower
back pain. His opinion, however, is of limited probative value as it does not provide a full
history of appellant’s preexisting lumbar condition or medical rationale as to how his low back
condition was currently related to factors of employment.7 The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.8
Dr. Ledford did not sufficiently describe appellant’s job duties or explain the medical process
through which such duties would have been competent to cause the claimed condition.
Dr. Burrus stated on February 4, 2009 that appellant had been experiencing back, left leg
and left lower extremity pain which became progressively worse. He briefly listed a prior
lumbar laminectomy in 1991 and that the current symptoms were similar to those at the time of
his surgery. Dr. Burrus advised that appellant did not attribute his symptoms to any specific
5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

William C. Thomas, 45 ECAB 591 (1994).

8

See Anna C. Leanza, 48 ECAB 115 (1996).

4

injury. He diagnosed lumbar radicular syndrome, sciatica and degenerative arthritis at L4-5 and
L5-S1. On February 13, 2009 Dr. Burrus stated that appellant had some lingering sciatic tension,
numbness and tingling, with a suspected disc herniation. The reports are of limited probative
value as Dr. Burrus did not explain how appellant’s job duties caused the diagnosed conditions
He did not address appellant’s preexisting conditions in any detail or how appellant’s work
duties were competent to cause the diagnosed conditions. The February 13, 2009 MRI scan was
inconclusive for disc herniation.
Appellant also submitted the May 18 and 28, 2009 chiropractic reports from Drs. Klemin
and Beardon; however, they do not constitute medical evidence from a physician as there was no
diagnosis of subluxation as demonstrated by x-ray.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed lower back condition was causally related to his employment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establish that his
claimed lower back condition was sustained in the performance of duty.

9

See 5 U.S.C. § 8101(2).

10

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Louisville, KY, Employer
__________________________________________

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

Docket No. 12-1450
Issued: April 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 27, 2012 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated February 7 and April 16, 2012. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant’s actual earnings as a field representative fairly and
reasonably represented her wage-earning capacity; (2) whether OWCP properly found that she
was not entitled to wage-loss compensation for the period August 28 to December 3, 2011;
(3) whether it properly found that an overpayment in compensation in the amount of $9,510.07
had been created because appellant received wage-loss compensation based on an incorrect pay
rate for the period May 27, 2009 through August 15, 2011; and (4) whether OWCP properly
found that the overpayment was not subject to waiver.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 4, 2009 appellant, then a 43-year-old temporary, part-time census enumerator,
filed a traumatic injury claim alleging that she was injured on May 1, 2009 when she fell while
climbing steps. She did not return to work and was terminated effective May 27, 2009. The
claim was accepted for left lower extremity injuries of sprain of unspecified sites of the knee and
leg, contusion of the knee, tear of the medial meniscus and aggravation of localized primary
osteoarthritis.
The employing establishment informed OWCP that appellant worked an average of 4.5
hours a day at an hourly rate of $11.25. Appellant was placed on the periodic compensation
rolls, based on a weekly pay rate of $227.81. On April 14, 2010 Dr. Shiraz Patel, a Boardcertified orthopedic surgeon, performed left knee arthroscopic repair.
OWCP continued to develop the claim, and in September 2010, referred appellant to
Dr. Bryant A. Bloss, a Board-certified orthopedic surgeon, for a second-opinion evaluation. In
an October 7, 2010 report, Dr. Bloss provided physical examination findings of limited knee
range of motion and residual tenderness with some functional weakness. He diagnosed status
post medial meniscectomy and debridement arthroplasty of the left knee, left knee osteoarthritis,
aggravated by May 1, 2009 injury and mild lateral subluxation of the left patella. Dr. Bloss
indicated that the compensable injuries had resolved with the exception of aggravation of
preexisting left knee arthritis, that appellant had reached maximum medical improvement and
that she could perform light work with restrictions that she could not squat, kneel or climb and
could not carry significant weight. Walking and standing were limited to two hours daily.
Appellant was referred for vocational rehabilitation in March 2011. On June 28, 2011 the
employing establishment offered her a temporary appointment, not to exceed 90 days, as a field
representative, working in her home. The job was described as having an intermittent, part-time,
variable schedule of 10 to 30 hours a week. Appellant accepted the job on July 6, 2011 and
began work on August 15, 2011. She submitted a Form CA-7, claim for compensation, for the
period August 28 to December 3, 2011. Appellant attached time analysis forms indicating that
she worked intermittently for a total of 34 days during this period.
In a February 7, 2012 decision, OWCP found that appellant’s employment as a field
representative, effective August 16, 2011, fairly and reasonably represented her wage-earning
capacity with zero loss. In a second decision dated February 7, 2012, it denied her claim for
wage-loss compensation for the period August 28 to December 3, 2011.
On February 10, 2012 OWCP issued a preliminary determination that appellant received
an overpayment in compensation in the amount of $9,510.07 for the period May 27, 2009 to
August 15, 2011 because she was incorrectly paid compensation based on a weekly pay rate of
$227.81 when she should have been paid based on a weekly rate of $146.03 a week. It explained
that her compensation was incorrect because it should have been calculated based on the 150
formula, used for temporary census employees. Appellant was found without fault and advised
of her rights if she disagreed with the preliminary finding. She was provided an overpayment
questionnaire and an overpayment action request which advised her that she could request a
telephone conference with OWCP on the issues of fault and possible waiver of the overpayment.

2

Appellant was advised that the overpayment action request must be mailed to OWCP within 30
days and that the financial information was needed to determine waiver.2
The record contains overpayment worksheets and computer print-outs describing
appellant’s compensation for the period May 27, 2009 to August 15, 2011. These indicated that
she was paid compensation for the above period based on a weekly pay rate of $227.81 when she
should have been paid compensation based on a weekly rate of $146.03.
In a February 29, 2012 letter, appellant stated that she would not send in financial
information. On the overpayment questionnaire, in which she indicated that all requested
information was “N/A,” she stated that she had no idea how much she should have been paid.
On April 16, 2012 OWCP finalized the preliminary overpayment decision, finding that
appellant received an overpayment in compensation in the amount of $9,510.07. It found her
without fault and that she was not entitled to waiver because she failed to provide any financial
information. Repayment was due in full, within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning
capacity.3 Generally, wages actually earned are the best measure of a wage-earning capacity,
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.4 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Albert C.
Shadrick decision,5 has been codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s
wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current
pay rate for the date-of-injury job.6
OWCP procedures provide that OWCP can make a retroactive wage-earning capacity
determination if the claimant worked in the position for at least 60 days, the position fairly and
reasonably represented his or her wage-earning capacity and the work stoppage did not occur
because of any change in his or her other injury-related condition affecting the ability to work.7
In determining wage-earning capacity based on actual earnings, the procedures further provide
2

On February 10, 2012 OWCP also informed appellant that an overpayment of compensation in the amount of
$397.29 was created because she continued to receive compensation after she returned to work. The $397.29
overpayment was written off.
3

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

4

Lottie M. Williams, 56 ECAB 302 (2005).

5

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

6

20 C.F.R. § 10.403(c).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity
Chapter 2.814.7.e(1) (October 2009).

3

that reemployment of a temporary or casual worker in another temporary or casual position is
proper, as long as it will last at least 90 days.8
ANALYSIS -- ISSUE 1
The Board finds that appellant’s actual earnings in the temporary position as field
representative did not fairly and reasonably represent her wage-earning capacity and the
February 7, 2012 wage-earning capacity determination must be reversed.
Appellant, a temporary census enumerator, sustained an employment-related left lower
extremity injury on May 1, 2009. She was placed on the periodic rolls. On July 6, 2011
appellant accepted a temporary appointment, not to exceed 90 days, as a field representative,
working at home and began work on August 15, 2011.
While OWCP procedures provide that OWCP can make a retroactive wage-earning
capacity determination if the claimant worked in the position for at least 60 days, the record here
does not support that appellant had worked 60 days at the time OWCP issued its February 7,
2012 decision, based on the time analysis forms submitted by appellant and signed by the
employing establishment official. The record does not contain any other confirmation from the
employing establishment of hours and days appellant worked at the position. The record
therefore lacks the evidence necessary for the Board to affirm the February 7, 2012 wage-earning
capacity determination. As OWCP simply did not follow its own procedures, the Board finds
that it did not discharge its burden of proof in finding that the temporary field representative
position fairly and reasonably represented appellant’s wage-earning capacity.9
LEGAL PRECEDENT -- ISSUE 2
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.10 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA11 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.12 Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.13
8

Id. at Chapter 2.814.7.a (October 2009).

9

See D.P., Docket No. 12-55 (issued July 6, 2012).

10

See Prince E. Wallace, 52 ECAB 357 (2001).

11

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

12

Donald E. Ewals, 51 ECAB 428 (2000).

13

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

4

ANALYSIS -- ISSUE 2
Based on the Board’s finding regarding Issue 1, the February 7, 2012 decision denying
appellant’s claim for intermittent wage-loss compensation, identified here as Issue 2, is not in
posture for decision. Upon return of the case record, OWCP should address her claim for wageloss, based on the Board’s reversal of the wage-earning capacity determination and render an
appropriate decision.
LEGAL PRECEDENT -- ISSUE 3
Section 8102(a) of FECA 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.14 Section 8129 provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”15
For all claims under FECA, compensation is to be based on the pay rate as determined
under section 8101(4) which defines monthly pay as the monthly pay at the time of injury or the
monthly pay at the time disability begins or the monthly pay at the time compensable disability
recurs, if the recurrence begins more than six months after the injured employee resumes regular
full-time employment with the United States, whichever is greater.16 In applying section
8101(4), the statute requires OWCP to determine monthly pay based on the greater pay rate,
based on the date of injury, date of disability or the date of recurrent disability.17
OWCP procedures ascribe special rules for computing compensation to claimants
employed by the Census Bureau.18 These employees “can be either full-time 40-hour-per-week
regular employees or may be hired every 10 years to work in temporary appointments (not to
exceed 180 days) as enumerators, crew leaders or clerks.”19 When a claimant’s disability does
not exceed 90 days, compensation should be computed on the basis of actual daily wages
pursuant to section 8114(c) of FECA.20 When disability extends beyond 90 days and the
claimant had similar employment during the year prior to the injury, compensation should be

14

5 U.S.C. § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8101(4).

17

Id.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.9(a)(1)
(October 2009).
19

Id. at Determining Pay Rates, Chapter 2.900.3(e) (March 2011).

20

5 U.S.C. § 8114(c); id. at Chapter 2.901.9(a)(1) (October 2009).

5

allocated in accordance with section 8114(d)(1) or (2).21 Otherwise, compensation should be
paid weekly using the following formula: actual daily wage multiplied by 150, then divided by
52. Actual daily wage is calculated by multiplying the hourly pay rate by 4.5 hours.22
ANALYSIS -- ISSUE 3
The Board finds that appellant received a $9,510.07 overpayment of compensation for the
period May 27, 2009 through August 15, 2011. The record here supports that she was hired and
worked part time in the intermittent position of census enumerator. Appellant did not work as a
census enumerator during the year immediately preceding the injury. The record supports that
her hourly pay was $11.25. As described above, OWCP procedures describe the method to be
used in calculating compensation for a part-time census enumerator. In applying the weekly pay
rate standard set forth in chapter 2.901.9(a)(2) of OWCP’s procedure manual, the hourly rate of
$11.25 is multiplied by 4.5 hours to calculate a daily wage of $50.625. This, in turn, is
multiplied by 150 and divided by 52 to calculate a weekly wage of $146.03. Following this
determination, OWCP properly calculated that appellant should have received $16,977.90 in
compensation for the period May 27, 2009 through August 15, 2011 based on the $146.03
weekly wage. Instead, appellant received compensation of $26,487.97, based on an incorrect
weekly wage of $227.81. OWCP therefore properly found that an overpayment of compensation
in the amount of $9,510.07 had been created.
LEGAL PRECEDENT -- ISSUE 4
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP 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.”23 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good

21

Id. at § 8114(d)(1), (2).

22

Federal (FECA) Procedure Manual, supra note 18 at Chapter 2.901.9(a)(2); see also supra note 18 at Chapter
2.900.12(3)(3) (Census Bureau analyzed 2000 census data and determined that enumerators worked an average of
four and a half hours a day four days a week and anticipated similar patterns for 2010).
23

5 U.S.C. § 8129.

6

conscience.24 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.25
ANALYSIS -- ISSUE 4
As OWCP found appellant 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.26 Appellant,
however, had the responsibility to provide financial information to OWCP27 and did not do so.
In its preliminary determination dated February 10, 2012, OWCP clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if she failed to furnish the requested financial information within 30 days.
Appellant did not submit a completed overpayment questionnaire but merely noted “N/A” on the
form. She did not submit financial information supporting her income and expenses. As a
result, OWCP did not have the necessary financial information to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience. Consequently, as appellant did not submit the financial information required under
section 10.438 of OWCP regulations, which was necessary to determine her eligibility for
waiver, OWCP properly denied waiver of recovery of the overpayment in compensation in the
amount of $9,510.07.28
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits
under FECA.29 As appellant was no longer receiving wage-loss compensation at the time

24

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. 20 C.F.R. § 10.437. OWCP procedures provide that the assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (June 2009); see W.F., 57 ECAB 705 (2006).
25

20 C.F.R. § 10.438(b).

26

Id.

27

Id. at 10.438.

28

Id..

29

Cheryl Thomas, 55 ECAB 610 (2004).

7

OWCP issued the final overpayment decision on April 16, 2012, the Board does not have
jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act.30
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in finding that appellant’s
actual earnings as a field representative fairly and reasonably represented her wage-earning
capacity. Thus, whether appellant was entitled to wage-loss compensation for the period
August 28 to December 3, 2011 is not in posture for decision. The Board further finds that a
$9,510.07 overpayment in compensation was created because she received wage-loss
compensation based on an incorrect pay rate for the period May 27, 2009 through August 15,
2011 and that OWCP properly found that the overpayment was not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed. The February 7, 2012 wage-earning capacity
decision is reversed and the February 7, 2012 decision regarding entitlement to wage-loss
compensation is set aside and the case is remanded to OWCP for proceedings consistent with the
decision of the Board.
Issued: April 4, 2013
Washington, DC

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

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

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

30

Id. The Board notes that appellant submitted financial information following the final overpayment decision
dated April 16, 2012. The Board cannot consider this, however, as its review of the case is limited to the evidence
of record that was before OWCP at the time it rendered its final decision. 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB
293 (2008).

8