United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Bakersfield, CA, Employer
__________________________________________

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0484
Issued: August 1, 2019

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 January 2, 2019 appellant, through counsel, filed a timely appeal from a September 11,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed from OWCP’s last relevant merit decision, dated February 26, 2018, to

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.
The September 11, 2018 decision denied further merit review of OWCP’s February 26, 2018 decision, which
denied wage-loss compensation for temporary total disability beginning May 1, 2015. The Board notes that the record
also includes a July 23, 2018 decision that granted appellant a schedule award for 25 percent permanent impairment
of her left lower extremity. Although OWCP’s July 23, 2018 schedule award decision falls within 180 days of the
filing of the current appeal, neither appellant nor counsel specifically challenged that decision. Accordingly, the Board
will not exercise jurisdiction over the July 23, 2018 decision.
2

the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied reconsideration of the merits of appellant’s
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 8, 2014 appellant, then a 63-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging that she aggravated and/or exacerbated her left
knee osteoarthritis due to factors of her federal employment. She first became aware of her left
knee condition on June 4, 2013, and first realized it was related to her employment on
June 19, 2014. On December 23, 2014 appellant underwent left total knee arthroplasty performed
by Dr. Brian Solberg, a Board-certified orthopedic surgeon. In an April 29, 2015 progress report,
Dr. Solberg indicated that appellant was status post left total knee arthroplasty and “doing well.”
He advised that no additional physical therapy was necessary, and that appellant “[could] walk and
stand as tolerated without restriction.” Effective May 1, 2015, appellant retired from her position
with the employing establishment.
OWCP initially denied the claim. However, on June 9, 2015, it accepted appellant’s claim
for temporary aggravation of left lower leg localized primary osteoarthritis. On August 9, 2016
OWCP expanded the accepted condition to reflect permanent aggravation of left knee
osteoarthritis. It also retroactively authorized appellant’s December 23, 2014 left total knee
arthroplasty. OWCP paid wage-loss compensation for temporary total disability on the
supplemental rolls for the period February 6 through April 29, 2015.
On January 11, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period beginning May 1, 2015 and continuing.
OWCP had previously referred appellant for a second opinion evaluation by Dr. Ernest
Miller, a Board-certified orthopedic surgeon and internist. In a report dated April 14, 2016,
Dr. Miller reviewed appellant’s medical history and patient records. In response to the question
of when appellant ceased to be totally disabled, he reported that a reasonable period of disability
would have ended May 1, 2015, and that the temporary aggravation resolved “without industrial
disability.” Dr. Miller further wrote that actual disability has significantly resolved with the knee
replacement and that current restrictions would include preclusion from prolonged running or
jumping, kneeling, or squatting activities, and that standing in excess of two to three hours at a
time should be accommodated with a two-hour rest. In an accompanying work capacity evaluation
(Form OWCP-5c) he indicated his belief that appellant could work for eight hours per day with
restrictions on walking, standing, bending/stooping, and squatting and kneeling.
OWCP had also previously inquired whether the employing establishment had work
available on or after April 30, 2015 that would accommodate appellant’s limitations as described
3

5 U.S.C. § 8101 et seq.

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by Dr. Solberg and Dr. Miller. In a reply received on October 27, 2016, a representative from the
employing establishment responded indicating that they could have accommodated appellant if
she had not [retired].
In a development letter dated January 30, 2017, OWCP advised that the medical evidence
of record did not demonstrate that appellant experienced a period of temporary disability from a
worsening of her condition such that she was no longer able to perform the duties of her position.
OWCP explained that the evidence indicated that light/limited duty was available during the
claimed period of disability. Accordingly, it requested that appellant submit rationalized medical
opinion evidence to support the period of disability, and/or evidence explanatory of why appellant
did not work the light/limited-duty assignment. OWCP afforded her 30 days to submit the
requested evidence.
In a letter dated February 8, 2017, appellant, through counsel, argued that no evidence is
contained in the record to support the employing establishment’s assertion that work was offered
or available prior to appellant’s retirement on May 1, 2015. Counsel also argued that the medical
evidence of record, namely Dr. Miller’s second opinion report, imposed restrictions that were
incompatible with appellant’s job duties prior to the injury. Finally, he asserted that appellant’s
voluntary retirement had not precluded her from continuing wage-loss compensation benefits.
With the letter brief, appellant included an attached e-mail thread with her supervisor, B.B. In an
e-mail dated December 21, 2016, appellant notified B.B. that she had been cleared to return to
work with restrictions, and that details regarding the light-duty assignment in place for her prior
to her absence could be provided by her transportation security manager. By response dated
January 3, 2017, B.B. indicated that he required more details concerning the injury and claim
number, and that additional clearance would be required from headquarters because appellant had
previously retired. Based on this e-mail thread, counsel argued in the alternative that even if she
was cleared to work, no work was available on December 21, 2016, and that she was entitled to
wage-loss compensation until she received an offer of suitable employment.
In a May 1, 2017 letter addressed to the employing establishment, OWCP inquired as to
whether the duties of appellant’s date of injury position were consistent with Dr. Miller’s
restrictions in the second opinion evaluation. It afforded the employing establishment 30 days to
respond.
In a June 1, 2017 response, a human resources specialist from the employing establishment
indicated that, prior to the injury, appellant was a part-time employee who worked 5 hours per day,
with two 15-minute breaks per shift, and that appellant had elected to receive OPM retirement
benefits effective on May 1, 2015. The human resources representative denied that appellant’s job
duties involved running or jumping, any prolonged kneeling or squatting, or any continuous
standing or walking in excess of two to three hours. She explained that appellant would not have
the opportunity to engage in any prolonged standing or walking due to the rotational nature of the
positions within each shift.
By decision dated September 29, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period beginning May 1, 2015 and continuing. It found that she was capable
of performing the duties of her position with restrictions as a modified assignment with the

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employing establishment was available and therefore appellant was not entitled to disability
compensation as the condition had not prevented her from earning her preinjury wages.
On October 6, 2017 appellant, through counsel, requested reconsideration of the
September 29, 2017 decision. In her request, counsel first argued that appellant was not provided
a copy of the June 1, 2017 letter from the employing establishment and should have been offered
the opportunity to respond. Second, he contended that the description provided in the June 1, 2017
letter was inconsistent with the prior statement of accepted facts (SOAF), and in any event, the
employing establishment’s handbook for the position listed many required activities which fall
outside the restrictions listed in Dr. Miller’s second opinion report. Counsel asserted that
Dr. Miller’s restrictions in his April 14, 2016 second opinion report should not be applied
retroactively, but rather his restrictions should only apply to the period following the report,
entitling appellant to wage-loss compensation between May 1, 2015 and the date of the second
opinion evaluation on April 14, 2016. He further asserted that the January 4, 2017 report of
Dr. Irene Sanchez, a Board-certified occupational medicine specialist, had restricted appellant
from standing more than 30 minutes continuously without a break, and had created a conflict with
Dr. Miller requiring a referee examination.4 Counsel concluded the letter by reiterating that the
employing establishment had not submitted evidence supporting its assertion that work was
available or that an offer was made, and that it was incorrect under Board precedent to deny wageloss compensation based on appellant’s voluntary retirement.
In her January 4, 2017 report, Dr. Sanchez checked a box marking her belief that appellant
could not return to her usual occupation. She issued restrictions against repetitively lifting more
than 25 pounds, pushing or pulling more than 50 pounds, squatting, kneeling, or standing for more
than 30 minutes at a time without a break to sit down.
By decision dated February 26, 2018, OWCP denied appellant’s claim for wage-loss
compensation for the period beginning May 1, 2015. It addressed each of the arguments presented
in the request for reconsideration, and determined that none merited modification of the prior
decision. In addressing counsel’s arguments concerning the absence of a written job offer in the
record, OWCP noted that because appellant had not worked since the total knee replacement and
submitted her retirement effective three days after she was released to work, it would not have
been reasonable to expect a written job offer in the face of appellant’s notification of retirement.
Additionally, OWCP found no evidence reconciling the discrepancy between appellant’s
placement in a light-duty position at the time of her injury, and why such positions would be
unavailable upon her release from physical therapy by Dr. Solberg.
On June 13, 2018 appellant, through counsel, requested reconsideration of the February 26,
2018 decision. In the reconsideration request, counsel alleged that because there is no evidence in
the record that the employing establishment made her an offer in writing, there was no light-duty
work available “as a matter of law.” He argued that the cited provisions mandate the conclusion
that, as a matter of law, appellant was entitled to wage-loss because there was no written job offer
in the record.

4
The report of Dr. Sanchez was not before OWCP at the time of its September 29, 2017 decision, the decision upon
which he then request for reconsideration was based.

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By decision dated September 11, 2018, OWCP denied appellant’s request for
reconsideration, finding that the arguments on reconsideration were repetitive of the arguments
previously presented which were found to be of no evidentiary value. Consequently, it denied
merit review of the February 26, 2018 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for merit
reconsideration of the claim pursuant to 5 U.S.C. § 8128(a).
On October 6, 2017 appellant, through counsel, requested reconsideration of the
September 29, 2017 decision denying a claim for wage-loss compensation. In the reconsideration
request counsel alleged that, “as a matter of law,” because there was no evidence in the record that
the employing establishment had made her an offer in writing, it had been established that there
was no light-duty work available. He cited specific legal precedent which he asserts mandated the
conclusion that appellant was entitled to wage-loss compensation because there was no written job
offer in the record.
The underlying issue on appeal was whether appellant was entitled to a period of wageloss compensation commencing May 1, 2015. As the reconsideration request shows that OWCP
5
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(a), (b).

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erroneously applied or interpreted a specific point of law and advances a relevant legal argument
not previously considered by OWCP, the Board finds that appellant has met the first and second
requirements of section 10.606(b)(3). Therefore, she is entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.608.10
CONCLUSION
OWCP improperly denied appellant’s request for reconsideration of the merits of the claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2018 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.
Issued: August 1, 2019
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

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Id. at § 10.608(a).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF DEFENSE, FORT
BELVOIR, Fort Belvoir, VA, Employer
__________________________________________

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

Docket No. 09-2069
Issued: August 19, 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 August 11, 2009 appellant filed a timely appeal from an overpayment decision of the
Office of Workers’ Compensation Programs dated July 8, 2009. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment issues in this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$2,627.27 overpayment of compensation from November 10 to December 20, 2008; and
(2) whether the Office properly found that she was at fault in creating the overpayment.
FACTUAL HISTORY
On April 4, 2008 appellant, then a 58-year-old packer, sustained injury to her left
shoulder and arm. She stopped work on April 7, 2008. The Office accepted the claim for a left
shoulder strain. It paid benefits and authorized left shoulder arthroscopic surgery on
October 6, 2008.

On October 15, 2008 the Office notified appellant of the conditions under which she
would receive compensation every four weeks. In order to avoid an overpayment of
compensation, she was to contact the Office as to any change in her work status, including if she
returned to her former job or obtained other work. Appellant was advised to notify the Office
immediately when she returned to work. It was further advised that, if she worked for any
portion of the period for which compensation was received, she must return the check to the
Office or an overpayment of compensation would result. The period of appellant’s first payment
was from September 28 to October 25, 2008. Appellant received the payments through direct
deposit.
On October 30, 2008 appellant telephoned the Office and inquired if she would be
compensated for the months of June and July 2008. On November 10, 2008 she returned to fulltime light-duty work at the employing establishment.
On December 15, 2008 appellant returned a call from the Office and confirmed her return
to work on November 10, 2008. The Office advised her that she was in receipt of an
overpayment of compensation for the period November 11 to 22, 2008. It requested that she
return the payment for the period November 23 to December 20, 2008 as she was not entitled to
the entire payment. Appellant stated that she did not receive any compensation for June and
July 2008, but the Office informed her that she was not entitled to the payment from
November 23 to December 20, 2008. She was advised to submit CA-7 and CA-7a forms
supported by medical documentation for time loss due to her injury including June and
July 2008.
On December 30, 2008 the Office made a preliminary determination that appellant was
overpaid compensation in the amount of $2,627.27 for the period November 10 to December 20,
2008 as she received wage-loss compensation benefits for total disability after she returned to
work on November 10, 2008.1 It explained that appellant was on the periodic rolls receiving
compensation every 28 days in the amount of $1,794.23. The Office noted that $1,794.23
divided by 28 days equaled $64.08 which, when multiplied by 41 days (from November 10 to
December 20, 2008) equaled $2,627.27. It found appellant to be at fault in the creation of the
overpayment because she was knew or reasonably should have known that she was not entitled
to compensation after she returned to work. The Office noted that appellant had the right to
submit evidence or arguments which would affect the preliminary findings.
On January 12, 2009 appellant requested a telephone conference. She contended that the
overpayment occurred through no fault of her own as she did not receive any money from the
Office for her injury until August 18, 2008, when it was supposed to have commenced 45 days
after her injury. Appellant stated that she did not receive a full check when she returned to work
as she had to continue with physical therapy two to three days a week. She submitted a Form
OWCP-20 overpayment recovery questionnaire and supporting financial information with her
request. Appellant listed her total monthly income as $1,398.00 and total monthly expenses as
$3,462.00. Additional unspecified funds were noted as being $560.00. Appellant reiterated that
1

Although the preliminary determination indicated that the overpayment began on November 11, 2008 the record
indicates that the overpayment actually began on November 10, 2008 as that is when appellant returned to work.

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the Office did not compensate her from May through August 2008.2 She indicated that she did
not fully understand her reporting responsibilities.
On April 20, 2009 a telephonic hearing was held. Appellant testified that the employing
establishment stopped paying her on May 20, 2008 and that she had repeatedly submitted wageloss claims thereafter. She was not sure who received the information. Appellant stated that she
was unable to pay her monthly bills as a result of the nonpayment of compensation and that she
was very stressed about her financial situation.
On May 15, 2009 appellant submitted a Form OWCP-20 overpayment recovery
questionnaire together with other financial information. She listed her total monthly income as
$1,398.00, total monthly expenses as $3,250.82, and additional funds as $460.00. Appellant
again indicated that she thought the money received was for the period May to August 2008.
By decision dated July 8, 2009, an Office hearing representative found that appellant
received a $2,627.27 overpayment of compensation from November 10 to December 20, 2008
for which she was with fault. The fact appellant was issued payment by direct deposit did not
diminish her responsibility to return the monies as she had been verbally advised of the overpaid
compensation well in advance of her receipt of the funds. Moreover, appellant had
acknowledged her understanding and responsibilities regarding the receipt of compensation. The
hearing representative found appellant accepted payments which she knew or should have known
to be incorrect. While the evidence supported that appellant’s expenses exceeded her monthly
income, a reasonable repayment schedule was not possible and the overpayment was found due
and payable in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 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.4 A claimant, however, is not entitled to
receive compensation for temporary total disability and actual earnings for the same period.5
Office procedures provide that an overpayment in compensation is created when a claimant
returns to work but continues to receive wage-loss compensation.6

2

On March 31, 2009 appellant filed claims and submitted medical documentation for wage-loss benefits from
May 26 to June 3, 2008. On April 28, 2009 the Office paid her temporary total disability from May 26 to
August 2, 2008.
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Danny E. Haley, 56 ECAB 393 (2005).

6

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

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ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation from
November 10 through December 20, 2008. The record reflects that appellant returned to work
on November 10, 2008 but she received wage loss for temporary total disability through
December 20, 2008. As noted, appellant is not entitled to receive compensation for temporary
total disability after she returned to work and earned a salary. Accordingly, an overpayment of
compensation was created for this period.
The Office found that appellant received an overpayment of compensation from
November 10 to December 20, 2008 in the amount of $2,627.27. It calculated the amount of
overpayment by finding appellant received $64.08 a day ($1,794.23, the amount of compensation
received every 28 days, divided by 28 days) and multiplied by 41 days, the number of days in the
period November 10 to December 20, 2008. There is no contrary evidence regarding the fact of
and the amount of the overpayment. The Board will affirm the Office’s finding on the fact and
the amount of the overpayment. Accordingly, appellant received an overpayment as she returned
to work and continued to receive compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless 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.7
Section 10.433(a) of the Office’s regulations provide:
“[The Office] may consider waiving an overpayment only if the individual to
whom it was made was not at fault in accepting or creating the overpayment.
Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from [the Office] are proper.
The recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault in creating an
overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect;
(2) Failed to provide information which he or she knew or should have
known to be material; or

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5 U.S.C. § 8129; see P.M., 60 ECAB ___ (Docket No. 07-2169, issued March 3, 2009); Linda E. Padilla, 45
ECAB 768 (1994).

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(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).8
“Whether or not the Office determines that an individual was at fault with respect
to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”9
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit, which involve a series of payments over several
months with clear knowledge that the payments were incorrect.10 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.11
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. It determined that appellant was at fault in creating the overpayment of
$2,627.27 based on the fact that she knew or should have known that the payments received by
direct deposit from November 10 through December 20, 2008 were incorrect as she had returned
to work. Even if the overpayment resulted from negligence on the part of the Office, this does
not excuse the employee from accepting payment which she knew or should have known that she
was not entitled.12 Appellant was apprised by letter dated October 15, 2008 that she must notify
the Office immediately when she returned to work. The Office also advised that, if appellant
worked for any portion of the period for which compensation was paid, she must return the
payment to the Office or an overpayment of compensation would result.
The record indicates that appellant received two direct deposits -- one deposit on
November 22, 2008 for the period October 26 to November 22, 2008 and another deposit on
December 20, 2008 for the period November 23 to December 20, 2008.
Regarding the overpayment of compensation for the period October 26 to November 22,
2008, the Board finds that appellant was without fault in creating the overpayment. While
appellant accepted the overpayment by gaining control of the funds deposited into her bank
8

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

9

Id. at § 10.433(b).

10

See Karen K. Dixon, 56 ECAB 145 (2004).

11

See Tammy Craven, 57 ECAB 689 (2006). See K.H., Docket No. 06-191 (issued October 30, 2006).

12

See Russell E. Wageneck, 46 ECAB 653 (1995).

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account pursuant to her authorization, she did not know that she would receive an incorrect
payment on that day.13 Unlike the situation where a claimant receives a physical check and is
aware of the amount of the payment before depositing it into her account, appellant was not on
notice of the amount of the payment until after it was deposited electronically into her account.14
There is no specific evidence of record in this case to show that appellant had notice or that she
was aware that she had accepted an incorrect payment by direct deposit for the compensation
payment that included the period November 10 to 22, 2008. While the hearing representative
found appellant to be with fault because she was verbally advised to return the overpayment, the
Board notes that the December 15, 2008 teleconference did not occur until well after the
payment that was deposited on November 22, 2008. A finding of no fault does not mean,
however, that appellant may keep the money, only that the Office must consider her eligibility
for waiver. The case will be remanded to the Office to determine whether she is entitled to
waiver for that part of the overpayment that occurred from November 10 to 22, 2008.
After appellant’s receipt of the first direct deposit, she knew or should have known that
the subsequent direct deposits were in error under the reasonableness standard addressed above.
On December 20, 2008 when she received the second payment for the period November 23 to
December 20, 2008, she had worked for almost six weeks. Appellant has not presented
persuasive argument or evidence that she believed that these payments for temporary total
disability were correct. Rather, she stated her belief that the additional monies were for wage
loss from May through August 2008. The record reflects the Office advised appellant on
December 15, 2008 that she was not entitled to the check covering the period November 23 to
December 20, 2008 and should return the payment. It also informed her of the evidence to
submit to file wage-loss claims for May through August 2008. The record reflects appellant filed
her wage-loss claims on March 31, 2009. The evidence does not establish that she had
previously filed any wage-loss claims for May through August 2008. Therefore, appellant’s
contention that the November 22 to December 20, 2008 payment somehow related to money
owed is not reasonable. She was clearly advised in the Office’s October 15, 2008 letter that she
could not receive compensation for a period in which she also worked. In determining fault the
Office applies a reasonable person test.15 It was not reasonable for appellant to believe that she
could continue to receive compensation after she returned to work and enough time had passed
for her to review confirmation of the incorrect payments in her bank account. This is so
especially in light of the December 15, 2008 telephone conversation in which the Office
specifically advised her to return the payment. Moreover, the record and appellant’s own
hearing testimony, indicates that she was aware that there was a question as to whether she was
entitled to the compensation payment. The Board finds that she knew or should have known that
the deposit received covering the period November 23 through December 20, 2008 was
incorrect. Therefore, appellant was at fault in creating this portion of the overpayment.

13

See Tammy Craven, supra note 11.

14

Id.

15

See L.C., 59 ECAB ___ (Docket No. 08-209, issued June 16, 2008).

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CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation during the period November 10 to December 20, 2008, in the
amount of $2,627.27. The Board further finds that appellant was without fault in the creation of
the overpayment for the period October 26 to November 22, 2008 but is with fault in creating the
overpayment for the period November 23 to December 20, 2008. The case is remanded for
further proceedings consistent with this decision.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2009 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside and remanded in part.
Issued: August 19, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
FSIS-INSPECTION OPERATIONS PROGRAM,
Logansport, IN, Employer
__________________________________________

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

Docket No. 07-654
Issued: June 19, 2007

Case Submitted on the Record

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

JURISDICTION
On January 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 18, 2006, which denied her traumatic
injury claim, and an October 24, 2006 nonmerit decision denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
appellant’s claim.1
ISSUES
The issues are: (1) whether appellant established that she sustained a traumatic injury in
the performance of duty; and (2) whether the Office properly denied her request for
reconsideration.

1

The record includes evidence received after the Office issued the October 24, 2006 decision. The Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

FACTUAL HISTORY
On August 1, 2006 appellant then a 54-year-old part-time inspector, filed a traumatic
injury claim alleging that on July 21, 2006 she sustained a right foot injury when she fell while
walking up the stairs at her place of employment.
In an August 15, 2006 letter, the Office requested additional information from appellant.
In an August 9, 2006 report, Dr. Anthony E. Miller, Board-certified in family medicine,
diagnosed an “injury” and included an ICD-9 code of 959.7 for knee, leg, ankle and foot. In the
report, he marked “no” in response to the question “Do you believe the condition found was
caused or aggravated by the employment activity described?”
In an August 22, 2006 letter to the Office, the employing establishment reported that no
one saw appellant fall.
The Office received appellant’s chart notes for visits from March 21 through August 15,
2006 with Dr. Miller. It also received three work excuse notes dated August 1, 8 and 15, 2006
from Dr. Miller.
In an August 28, 2006 letter, Charles A. Porter stated that on July 21, 2006 he was
walking behind appellant up a flight of stairs, he turned around briefly and when he turned back
appellant was sitting on the steps. He asked her what happened and she told him that she had
fallen.
In an August 30, 2006 letter, appellant described her fall and the history of her condition.
By decision dated September 18, 2006, the Office denied appellant’s claim on the
grounds that the medical evidence of record did not establish that her medical condition resulted
from the accepted incident.
On October 10, 2006 appellant requested reconsideration. She submitted copies of her
August 30, 2006 letter, Mr. Porter’s August 28, 2006 letter and the August 9, 2006 physician’s
report.
By decision dated October 24, 2006, the Office denied reconsideration on the grounds
that the evidence submitted in support of the request was repetitious and irrelevant.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of

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duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
An employee seeking benefits under the Act3 has the burden of establishing that he or she
sustained an injury while in the performance of duty.4 In order to determine whether an
employee actually sustained an injury in the performance of duty, the Office begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
that is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.5 Causal
relationship is a medical question that can generally be resolved only by rationalized medical
opinion evidence.6
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a right foot injury on July 21, 2006 when she fell
while walking up the stairs in the performance of her duties. The Office accepted that the
employment incident occurred as alleged. The issue on appeal is whether the employment
incident caused a personal injury. The Board finds that the medical evidence does not establish
that appellant sustained an injury related to the accepted incident.
The medical reports submitted fail to provide a diagnosis. The August 9, 2006 report of
Dr. Miller noted a diagnosis of an unspecified “injury.” He failed to provide a firm diagnosis of
any condition to appellant’s right ankle or foot.7 A physician’s mere diagnosis of “injury” does
not constitute a basis for payment of compensation. The other medical documents of record
were work excuse notes and chart visit notes, none of which provided a diagnosis of appellant’s
condition.
Moreover, the medical reports fail to provide any opinion on causal relation. In order to
establish fact of injury, appellant must submit probative medical evidence on causal relationship
between a diagnosed condition and the employment incident. The August 9, 2006 physician’s
report of Dr. Miller marked “no” in response to the question “Do you believe the condition found
2

Anthony P. Silva, 55 ECAB 179 (2003).

3

5 U.S.C. §§ 8101-8193.

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Id.
7

See Ruth C. Borden, 43 ECAB 146 (1991); Val D. Wynn, 40 ECAB 666 (1989).

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was caused or aggravated by the employment activity described?” This report of the physician
does not support appellant’s claim that she sustained an injury during the accepted fall at work.
The other medical documents of record also failed to address the issue of causal relationship.
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9 This is not such a situation of a readily apparent injury. Therefore appellant must
submit a reasoned medical opinion on causal relation between a diagnosed condition and the
accepted work-related incident.
In absence of a medical report providing a diagnosed condition and a reasoned opinion on
causal relationship with the employment incident, the Board finds that appellant did not meet her
burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office regulation provides that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.10
ANALYSIS -- ISSUE 2
Appellant submitted copies of record documents previously with her October 20, 2006
request for reconsideration. Her August 30, 2006 letter, the August 28, 3006 letter from
Mr. Porter and the August 6, 2006 physician’s report were all previously considered in the
Office’s September 18, 2006 decision. In order to require the Office to reopen a case for
reconsideration, appellant must submit relevant and pertinent new evidence not previously
considered by the Office. Appellant’s supporting documents were all previously considered by
the Office in its September 18, 2006 decision. The Board has held that the submission of
evidence which repeats or duplicates evidence already of record does not constitute a basis for
reopening a case.11

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

9

Id.

10

20 C.F.R. § 10.606(b)(2)(iii) (2004).

11

David J. McDonald, 50 ECAB 185, 190 (1998); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome
Ginsberg, 32 ECAB 31, 33 (1980).

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The Office will also reopen a case if appellant shows that the Office erroneously applied
or interpreted a specific point of law or if appellant advances a relevant legal argument not
previously considered by the Office. Appellant made no such argument in her request for
reconsideration. She is not entitled to further review of the merits of her claim. The Board finds
that the Office properly refused to reopen appellant’s case for further review of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty.
Additionally, the Office properly denied her request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 24 and September 18, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FINANCE CENTER,
New Orleans, LA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-217
Issued: October 21, 2009

Oral Argument September 2, 2009

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

JURISDICTION
On October 28, 2008 appellant filed a timely appeal from a July 30, 2008 merit decision
of the Office of Workers’ Compensation Programs denying her emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she sustained a stress-related condition
on June 11, 2008 in the performance of duty.
FACTUAL HISTORY
On June 12, 2008 appellant, then a 48-year-old financial management specialist, filed a
traumatic injury claim alleging that on June 11, 2008 she sustained a migraine headache, stress,
anxiety, back and neck spasms, nausea and nervousness in the performance of duty. She related
that a coworker entered her cube while she worked, bumped into her and raised his voice. On

the claim form, appellant’s supervisor maintained that she was not in the performance of duty at
the time of the alleged injury as she and the other employee were discussing a church-related
matter. On June 16, 2008 the employing establishment controverted the claim. Olga JonesWalker, on behalf of the employing establishment, stated:
“On June 11, 2008 about 10:00 a.m. [Anthony Cefalu, Jr.] confronted [appellant]
about a tragedy that happened to another employee they were both acquainted
with. This was a personal matter that [he] went to her for help. Once he realized
that she was taking things out of context, he apologized for bringing the matter to
her.”
Ms. Jones-Walker related that appellant requested a claim form immediately after the incident
and that she had previously filed claims due to interactions with employees.
On June 11, 2008 appellant related that Mr. Cefalu “violently” entered her cube and told
her that he was angry because her former Pastor did not assist Mr. Joe. She asked him to leave
but he did not. Appellant related that she did not know Mr. Cefalu at the time of the
confrontation and stated:
“He kept talking loud telling me he was upset, saying what kind of church you go
to that they don’t help people with their needs. I again told him to leave. I spoke
loudly enough to get someone’s attention, but people just kind of just listened and
didn’t tell him to leave. Sherrell and Vanessa was right there but they did not
help. I tried to call someone on the phone for him to speak with, in an effort for
me to then leave my cube to get help, but he took the phone out of my hand,
brushing me, standing over me, and hung up the phone and told me off saying he
don’t want to speak with an answering machine and continued to confront me
about a church where I was previously affiliated and about the Pastor who he said
did not help someone who works for Goodwill. This had nothing to do with me at
all. I was in my cube, working at my desk, minding my own business.”
On June 11, 2008 appellant informed Kevin Camp that Mr. Cefalu confronted her in her
work cubicle about something that had nothing to do with work. She asserted that he refused to
leave after violently entering her cubicle, took the telephone from her hand, bumped into her,
stood over her and hung it up.
In a statement dated June 11, 2008, Mr. Cefalu related that he went to talk with appellant
about a friend who had lost his possessions in a fire. He stated, “What disturbed me is when I
heard the church that he attended offered him no help, just prayer.” Mr. Cefalu believed that he
and appellant could speak “as one minister to another.” He maintained that when he told her that
he was disappointed she became “loud and very voiceful.”
In a statement dated June 11, 2008, Grace R. Reed, a supervisor, related that appellant
and Mr. Cefalu came into her office around 10:05 a.m. and that appellant “stated she was upset
by the way [Mr. Cefalu] came into her cube questioning her about another employee (Mr. Joe)
who goes to the church she attended.” Mr. Cefalu apologized and appellant told him that “he

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had no right to approach her with this matter because she did not know him and he had upset
[her] very much.” At a meeting later that day she requested a claim form.
On June 12, 2008 Sherrell Hayes related that she took Mr. Cefalu to appellant’s work
cubicle to speak with her on June 11, 2008.1 Mr. Cefalu asked appellant about her church
membership and she asked why he wanted to know in an “ugly manner.” She stated, “I heard
[appellant] asking [Mr. Cefalu] would you like to speak to my [P]astor and beg[a]n dialing on
the telephone claiming her [P]astor is on the other line, I observed [Mr. Cefalu] gently taking the
[tele]phone from her….”
In a June 13, 2008 investigative report, C.W. Jackson, a security specialist, related that he
asked Mr. Cefalu why he spoke with appellant and whether he had threatened her. Mr. Jackson
related:
“Mr. Cefalu stated that he approached [appellant] because he thought she was a
minister, like himself, and he ‘thought he could address an issue to her minister to
minister.’ He indicated that she became upset, dialed a number and passed the
[tele]phone to him. Mr. Cefalu indicated that he was listening to a recording, told
[appellant] that he did not wish to speak to a recording, and passed the [tele]phone
back to her. At this time, Mr. Cefalu stated that [appellant] became louder and
indicated that she was going to address this matter to her supervisor, … Grace
Reed. He indicated that [he] repeatedly apologized to [appellant] for upsetting
her and departed the area….”
On June 13, 2008 Mr. Camp related that on June 11, 2008 appellant told him that
Mr. Cefalu, a man that she did not know, approached her about another employee and that she
felt embarrassed and threatened.2 She related that Mr. Ceaflu “bumped into her and took the
telephone out of her hand.”
By letter dated July 19, 2008, appellant asserted that she was in the performance of duty
at the time of the June 11, 2008 incident with Mr. Cefalu as she was performing her duties at her
desk. Appellant noted that she had a history of a closed-head injury and described prior work
injuries.3
By decision dated July 30, 2008, the Office denied appellant’s claim, finding that she did
not establish that the June 11, 2008 incident occurred in the performance of duty. It found that
the incident arose out of a personal matter between herself and Mr. Cefalu rather than her
employment.
1

In a statement dated June 12, 2008, Joyce A. Ernest indicated that on June 11, 2008 she heard appellant
shouting. On June 11, 2008 Keenan Langston heard appellant tell Mr. Cefalu to come with her to his supervisor’s
office.
2

On July 11, 2008 Ms. Hayes denied hearing Mr. Cefalu raise his voice or have any physical contact with
appellant.
3

A physician completed an authorization for examination and/or treatment, Form CA-16, on June 13, 2008. He
diagnosed post-traumatic stress disorder due to a work trauma and found that she was totally disabled.

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LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides for payment of compensation for
the disability or death of an employee resulting from personal injury sustained while in the
performance of duty. The phrase sustained while in the performance of duty has been interpreted
by the Board to be the equivalent of the commonly found prerequisite in workers’ compensation;
law of arising out of and in the course of employment.5 In addressing this issue, the Board has
stated that, in the compensation field, to occur in the course of employment, in general, an injury
must occur: (1) at a time when the employee may reasonably be said to be engaged in his or her
master’s business; (2) at a place where he or she may reasonably be expected to be in connection
with the employment; and (3) while he or she was reasonably fulfilling the duties of his or her
employment or engaged in doing something incidental thereto.6 This alone, however, is not
sufficient to establish entitlement to compensation. The employee must also establish an injury
“arising out of the employment.” To arise out of the employment, the injury must have a causal
connection to the employment, either by precipitation, aggravation or acceleration.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act. On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.8
Larson states that assaults arise “out of the employment” either if the risk of assault is
increased because of the nature or setting of the work, or if the reason for the assault was a
quarrel having its origin in the work. Assaults for private reasons do not arise out of the
employment unless, by facilitating as assault that would not otherwise be made, the employment
becomes a contributing factor.9
The Board has held that this principle applies to mental or emotional injuries as well as to
assaults.10 As with assaults, when the subject matter of a verbal altercation is imported into the
employment from a claimant’s domestic or private life, and there is no indication that work
4

5 U.S.C. §§ 8101-8193.

5

Bernard D. Blum, 1 ECAB 1 (1947).

6

Lenneth W. Richard, 49 ECAB 337 (1998); Janet Hudson-Dailey, 45 ECAB 435 (1994).

7

See Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985).

8

Gregorio E. Conde, 52 ECAB 410 (2001).

9

A. Larson, The Law of Workers’ Compensation § 8.00 (May 2004).

10

Monica M. Lenart, 44 ECAB 772, 774 n.5 (1993).

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contributed to or facilitated the dispute, the dispute is not a compensable factor of employment
and any injury resulting therefrom does not arise out of employment.11
ANALYSIS
Appellant alleged that she sustained a stress-related condition on June 11, 2008 in the
performance of duty. She maintained that Mr. Cefalu violently entered her work area and
questioned her in a loud voice about actions taken by her church Pastor. When Mr. Cefalu
refused to leave she handed him the telephone in an attempt to get around him and leave her
cube. Appellant indicated that she did not know Mr. Cefalu by name and that she was working
at the time of the confrontation. In a statement dated June 11, 2008, Mr. Cefalu related that he
wanted to speak with appellant about a friend who had lost his possession in a fire. He informed
her that he was disappointed that her church did not offer the friend financial assistance.
There is no dispute that on June 11, 2008 Mr. Cefalu entered appellant’s work cube and
confronted her about actions taken by her Pastor. At the time, appellant was at her desk
performing her work duties. The Office denied the claim on the grounds that the subject matter
of the incident on June 11, 2008 concerned a nonemployment-related matter. The Board finds,
however, that the altercation arose in the performance of duty. The Board has recognized that
friction and strain among employees may arise as an inherent part of the conditions of
employment. Even if the subject of a dispute is unrelated to work, an altercation is compensable
if the work of the participants brought them together and created the relations and conditions that
created the clash.12 The point is illustrated by the case of Shirley I. Griffin,13 where an
altercation arose out of the claimant’s failure to introduce a male employee to her coworker, who
had asked about meeting the employee. Reversing the Office’s finding that the employment
contributed nothing to the episode, the Board found that work proximity was the sole connection
between the claimant and her coworker. Although the conflict involved a nonwork topic, the
Board held that the altercation was compensable because the employment brought the claimant
and her coworker together and created the conditions that resulted in the altercation. That the
lack of introduction was not relevant to the work, the Board explained, did not disconnect it from
the employment nor from the injurious consequences of the altercation.
The altercation between appellant and Mr. Cefalu occurred on the work premises. Both
appellant and Mr. Cefalu confirmed that they had no prior relationship with one another outside
the workplace. Work brought the two together and created the conditions that resulted in the
altercation; therefore, the incident occurred in the performance of duty.14 Consequently, the
issue is whether the incident at work caused an injury. The Office did not adjudicate this aspect
of the case as it found that the altercation between appellant and Mr. Cefalu did not occur in the
performance of duty. The case will be remanded for the Office to consider whether the medical
evidence establishes that she sustained an injury due to the June 11, 2008 altercation with
11

See Edward Savage, Jr., 46 ECAB 346 (1994).

12

See M.A., 60 ECAB ___ (Docket No. 08-2510, issued July 16, 2009).

13

43 ECAB 573 (1992).

14

Id.

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Mr. Cefalu. Following such further development as is deemed necessary, the Office shall issue a
de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2008 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: October 21, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
ACCOUNTING & FINANCE CENTER,
Washington, DC, Employer
__________________________________________

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

Docket No. 09-515
Issued: January 7, 2010

Case Submitted on the Record

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

JURISDICTION
On December 15, 2008 appellant filed a timely appeal of the October 29, 2008 merit
decision of the Office of Workers’ Compensation Programs, which found that she received an
overpayment of benefits, for which she was at fault. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $10,102.08 for the
period October 13, 2004 through June 7, 2008 because she received compensation at the
augmented rate; and (2) whether she was at fault in creating the overpayment and, therefore, not
entitled to waiver of recovery of the overpayment.
FACTUAL HISTORY
On January 10, 1977 appellant, then a 38-year-old secretary, filed a traumatic injury
claim alleging that on January 3, 1977 she injured her neck, back and nerves when the cable on

the elevator she was on broke. The Office accepted the claim for acute lumbosacral and cervical
strains and C5-6 herniated nucleus pulposus and authorized surgery for anterior disc removal,
anterior cervical interbody fusion and anterior cervical discectomy, which was performed on
February 22, 1979.
On December 2, 1997 the Office notified appellant of the conditions under which she
would receive compensation every four weeks. It noted that, in order to avoid an overpayment
of compensation, she was to contact the Office with any change in address or any change in the
status of her dependents.
Over the years, appellant claimed her now-deceased husband as a dependent, as well as
their two children, born March 15, 1962 and April 3, 1963. Because she had at least one eligible
dependent, the Office paid her wage-loss compensation at the augmented rate of 75 percent.
In an EN1032 form dated August 10, 2005, appellant advised that she was widowed and
had no dependents.
By letter dated June 24, 2008, the Office advised appellant that her compensation was
reduced to the two-thirds statutory pay rate as she did not have an eligible dependent. It began
paying her compensation at the basic rate of 66 2/3 percent beginning June 8, 2008.
In a letter dated July 14, 2008, appellant stated that she was unaware that she had been
paid at an incorrect compensation rate. She noted that she had properly completed the forms
requested and submitted a copy of her husband’s death certificate in August 2005. Enclosed
with her letter, appellant submitted a copy of a death certificate for her spouse, dated
October 13, 2004.
On August 4, 2008 the Office made a preliminary finding that appellant was overpaid
benefits in the amount of $11,194.99. It noted that the overpayment occurred because her
husband died on October 13, 2004 and she was without dependents since October 13, 2004;
however, she received augmented compensation at the three-fourths rate instead of the statutory
two-thirds rate from October 13, 2004 to June 7, 2008. The Office noted that appellant received
net compensation for this period in the amount of $92,884.47 when she was only entitled to
$81,689.48. It found appellant to be at fault in the creation of the overpayment because she
reasonably should have been aware that she was not entitled to receive augmented compensation.
The Office noted that appellant had the right to submit evidence or arguments which would
affect the preliminary findings.
On August 12, 2008 appellant noted her disagreement and requested a telephone
conference. She submitted a Form OWCP-20 overpayment recovery questionnaire with her
request. Appellant listed her monthly expenses of $3,246.71 on the form, but provided no
information about her monthly income.
In a conference call dated October 27, 2008, the Office noted telephone calls were made
on October 23 and 27, 2008 with appellant. The claims examiner noted that appellant alleged
she was very upset by the death of her husband and did not monitor the direct deposits.
Appellant also contended that due to her poor health and medical condition she did not monitor
the amount of her compensation payments. Lastly, she contended that she was unaware of the
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overpayment as her compensation varied due to the cost-of-living adjustments and health
insurance deductions and that she “relied on her children for assistance in her financial affairs.”
By decision dated October 29, 2008, the Office modified the amount of the overpayment
to reflect that appellant received a $10,102.08 overpayment of compensation from October 13,
2004 to June 7, 2008 for which she was at fault in creating. It noted that appellant had been paid
$91,795.05 during this period when she should have been paid $81,692.97.1 In an accompanying
memorandum, the Office determined that appellant was at fault as she knew or should have
known that she was not entitled to the higher compensation rate after her husband had died.
LEGAL PRECEDENT -- ISSUE 1
The basic rate of compensation under the Federal Employees’ Compensation Act is
66 2/3 percent of the injured employee’s monthly pay. Where the employee has one or more
dependents as defined by the Act, he or she is entitled to have the basic compensation augmented
at the rate of 75 percent of monthly pay.2 A husband is considered the employee’s dependent if
he is a member of the same household; or if he is receiving regular contributions from the
employee for his support; or if the employee has been ordered by a court to contribute to his
support.3 If a claimant receives augmented compensation during a period where she has no
eligible dependents, the difference between the compensation she was entitled to receive at the
2/3 compensation rate and the augmented compensation received at the 3/4 rate constitutes an
overpayment of compensation.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $10,102.08. The record supports that she continued to receive compensation at the augmented
three-fourths rate after her husband’s death on October 13, 2004 until June 7, 2008 and she had
no other dependents. For this period, appellant received augmented compensation in the amount
of $91,795.05. As she was not entitled to compensation at the augmented rate after the death of
her husband, she should have received compensation of $81,692.97. The Office properly found
that an overpayment in compensation in the amount of $10,102.08 had been created.5

1

This was based on the net of her health care deductions which was code 105 for married individuals for the
period October 13 to December 25, 2004 and code 104 for an individual for the period December 26, 2004 to
June 7, 2008. The Office noted appellant’s gross compensation was $86,990.18 less $5,297.21 for health insurance
for single individuals, resulting in a net overpayment amount of $81,692.97.
2

5 U.S.C. §§ 8105(a), 8110(b).

3

Id. at § 8110(a)(2).

4

Ralph P. Beachum, 55 ECAB 442 (2004).

5

5 U.S.C. §§ 8101, 8110.

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LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless 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.6
Section 10.433(a) of the Office’s regulation provides:
“The Office may consider waiving an overpayment only if the individual to whom
it was made was not at fault in accepting or creating the overpayment. Each
recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from [the Office] are proper.
The recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault in creating an
overpayment: (1) made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known to be incorrect. (This
provision applies only to the overpaid individual).”7
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.8
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $10,102.08 overpayment, the Office
stated that she should have known that the payments she received by direct deposit for the period
October 13, 2004 through June 7, 2008 were not proper because they were at the augmented
three-fourths rate and, as she had no dependents after her husband’s death on October 13, 2004,
she was only entitled to compensation at the two-thirds rate.
Even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments he or she knew or should have known to be
6

5 U.S.C. § 8129; see P.M., 60 ECAB ___ (Docket No. 07-2169, issued March 3, 2009); Linda E. Padilla, 45
ECAB 768 (1994).
7

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

8

Tammy Craven, 57 ECAB 689 (2006).

4

incorrect.9 The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments are incorrect.10 It is not appropriate, however, to
make a finding that a claimant has accepted an overpayment via direct deposit until such time as
a reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentation such as a bank statement or notification from
the Office or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.11
In this case, appellant continued to receive augmented compensation by direct deposit
from the time of her husband’s death on October 13, 2004 until June 7, 2008. Since Office
regulations define fault by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that in many cases the
claimant will not be at fault for accepting the first incorrect payment because the requisite
knowledge is lacking at the time of deposit and the Board so finds in this case as there is no
evidence of record to show the period covered by this direct deposit.12 A finding of no fault does
not mean, however, that the claimant may keep the money, only that the Office must consider
eligibility for waiver for this period and the case must be remanded for the Office to determine
whether she is entitled to waiver for this period.
By her own admission, appellant acknowledged that she was not entitled to augmented
compensation. Thus, after her receipt of the first direct deposit for which fault may not be
imputed to her, under the reasonableness standard delineated above, for the subsequent direct
deposits appellant knew or should have known that the compensation paid by direct deposits
issued by the Office after the first direct deposit subsequent to her husband’s death on
October 13, 2004 were in error and the Board finds that she was at fault under the third standard
outlined above for any period after the first direct deposit after her husband’s death. Recovery of
the overpayment in compensation may not be waived for this time period and the decision dated
October 29, 2008 is affirmed in this respect. The record in this case, however, does not show
when appellant’s individual direct deposits were made. As appellant was not at fault for the first
direct deposit after October 13, 2004, the case must be remanded to the Office to determine the
exact period appellant would not be at fault and would thus, be entitled to waiver.
CONCLUSION
The Board finds that the Office properly determined that an overpayment in
compensation in the amount of $10,102.08 had been created and that appellant was at fault for
the overpayment period commencing subsequent to the first direct deposit after appellant’s
husband’s death but was not at fault for the first direct deposit of compensation. The case is
9

J.K., 60 ECAB ___ (Docket No. 08-1761, issued January 8, 2009); William E. McCarty, 54 ECAB 525 (2003).

10

Karen K. Dixon, 56 ECAB 145 (2004).

11

See K.H., Docket No. 06-191 (issued October 30, 2006).

12

See Karen K. Dixon, supra note 10.

5

remanded for a determination of the exact period covered by the first direct deposit and whether
she would be entitled to waiver for this brief period.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 29, 2008 be affirmed in part, vacated in part, and the case
remanded for further proceedings consistent with this opinion of the Board.
Issued: January 7, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor

Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Coleman, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1889
Issued: January 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 13, 2013 appellant filed a timely appeal from a May 10, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic injury
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.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
arm or back condition as a result of a March 12, 2013 employment incident.

1
2

5 U.S.C. § 8101 et seq.

On appeal appellant alleged that he was submitting additional medical reports with a physician’s signature. The
Board’s jurisdiction, however, is limited to evidence that was before OWCP at the time it issued its final decision.
See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005). Appellant may submit that evidence to OWCP
along with a request for reconsideration.

FACTUAL HISTORY
On March 12, 2013 appellant, then a 47-year-old senior officer specialist, filed a
traumatic injury claim alleging injury to his left shoulder, neck, and upper back that day when he
tripped over a large rock while exiting a government van. He stopped work.
In March 12, 2013 attending physician’s report and emergency room records, Deborah
Greer, a nurse practitioner, listed complaints of pain in appellant’s neck and numbness down his
left arm with tingling. She related that appellant stepped out of a van and fell down, twisting his
left arm and neck. Ms. Greer obtained a history that in October 2012 he sustained a cervical
fracture. Upon examination, she observed paravertebral spasms and diminished cervical spine
rotation. Ms. Greer diagnosed cervical strain and neck pain. In the attending physician’s report,
she checked “yes” that appellant’s condition was aggravated or caused by an employment
activity. Ms. Greer recommended that appellant to return to light duty with restrictions of no
lifting over five pounds.
By letter dated March 29, 2013, OWCP informed appellant that his claim was initially
accepted as a minor injury. It would adjudicate his claim because he did not return to work. It
advised him that additional evidence was needed to establish his claim.
In a March 15, 2013 report, Dr. J. Eric Taylor, a diagnostic radiologist, related that
appellant was seen for complaints of cervical spine pain. He noted that appellant sustained a
previous cervical fracture as a result of a motorcycle accident. Dr. Taylor reported that open
mouth and lateral screening views of the cervical spine revealed some right side bending at the
first and second vertebrae but no acute fractures. He also observed significant discogenic
changes at C4-5, C5-6 and C6-7 with anterior and posterior spondylosis and some milder disc
space narrowing at C3-4 and C7-D1. Dr. Taylor diagnosed minimal to moderate arthrosis at all
levels and minor anterolisthesis by two mm of C3 upon four.3
In a decision dated May 10, 2013, OWCP denied appellant’s claim. It accepted that the
March 12, 2013 employment incident occurred as alleged but denied his claim finding
insufficient medical evidence to establish that he sustained a cervical condition as a result of the
accepted incident.

3

The Board notes that on March 12, 2013 the employing establishment issued a Form CA-16 authorizing medical
treatment. The CA-16 authorization may constitute a contract for payment of medical expense to a medical facility
or physician, when properly executed. The form 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.
See 20 C.F.R. § 10.300 (c); Tracy P. Spillane, 54 ECAB 608 (2003). The record indicates that appellant was seen
by Ms. Geer and Dr. Taylor, however the record is silent as to whether OWCP paid for the cost of appellant’s
treatment pursuant to this form.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence5
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9 An employee may establish that the
employment incident occurred as alleged but fail to show that his disability or condition relates
to the employment incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, 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 employee.12 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.13

4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
Appellant alleged that on March 12, 2013 he sustained left shoulder, neck, and upper
back conditions as a result of tripping over a large rock at work. OWCP accepted that the
March 12, 2013 incident occurred as alleged. It denied his claim finding insufficient medical
evidence to establish that is cervical condition was a result of the accepted incident. The Board
finds that appellant failed to establish that he sustained neck, back, and shoulder conditions
causally related to the March 12, 2013 employment incident.
Appellant was treated by Dr. Taylor on March 12, 2013 for complaints of cervical spine
pain. He reviewed appellant’s history and noted a previous cervical fracture from a motorcycle
accident. Dr. Taylor reported that open mouth and lateral screening views of the cervical spine
revealed some right side bending at the first and second vertebrae but no acute fractures. He
conducted an examination and diagnosed minimal to moderate arthrosis at all levels and minor
anterolisthesis by 2 mm of C3 upon C4. The Board notes that Dr. Taylor provided a medical
diagnosis based on examination findings; but did not provide any opinion on the cause of
appellant’s cervical condition or address the March 12, 2013 employment incident. The Board
has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.14
Accordingly, Dr. Taylor’s report is insufficient to establish that appellant’s cervical condition
was causally related to the March 12, 2013 employment incident.
The additional hospital reports by Ms. Greer, the nurse practitioner, are insufficient to
establish causal relationship. The Board has held that a report may not be considered as
probative medical evidence if there is no indication that the person completing the report
qualifies as a physician under FECA.15 A nurse practitioner is not considered a “physician” as
defined under FECA. The reports of Ms. Greer are not sufficient to establish appellant’s claim.
The Board may not consider evidence for the first time on appeal.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that his cervical condition was causally
related to the March 12, 2013 employment incident.

14

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

15

R.M., 59 ECAB 690 (2008); section 8101(2) of FECA provides as follows: the term physician includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law.

4

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5