United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corvallis, OR, Employer
__________________________________________

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

Docket No. 19-0054
Issued: June 12, 2019

Case Submitted on the Record

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

JURISDICTION
On October 9, 2018 appellant filed a timely appeal from a September 25, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $39,827.09 because he concurrently received Social Security Administration (SSA)
retirement benefits while receiving FECA benefits for the period February 1, 2013 through
March 31, 2018; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $300.00
every 28 days from appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 20, 2006 appellant, then a 58-year-old letter carrier, filed an occupational
disease claim (Form CA 2) alleging that his repetitive employment duties of walking and lifting
heavy items caused bilateral leg and knee pain. He did not initially stop work. By decision
dated March 27, 2007, OWCP accepted the claim for bilateral knee osteoarthritis.
Appellant stopped work on April 12, 2008 and returned to full-duty work on
June 18, 2008. OWCP paid him intermittent wage-loss compensation and medical benefits on
the supplemental rolls as of April 12, 2008. Appellant underwent right knee surgery on May 18,
2010 and left knee surgery on July 12, 2011. Beginning April 11, 2010, OWCP paid him
compensation benefits on the periodic rolls for total disability.
In a March 30, 2018 Federal Employees Retirement System Act (FERS)/SSA Dual
Benefits Calculations worksheet, SSA reported that appellant was under FERS since 1981. It
provided his SSA rate with FERS and SSA rate without FERS from February 2013 through
December 2017. SSA further noted that appellant was receiving “disability benefits” prior to
February 2013, but the offset was not applicable prior to that date.
In an April 5, 2018 FERS offset calculation worksheet, OWCP noted a $39,827.09
overpayment because SSA/FERS age-based offset was not applied to payments from February 1,
2013 through March 21, 2018 based on calculations received from SSA on April 2, 2018. It
noted that appellant’s entitlement to SSA retirement benefits commenced on February 1, 2013
and was paid through March 21, 2018, a period for which an offset must be applied.
By letter dated April 5, 2018, OWCP informed appellant that he had been receiving
social security benefits on account of age since February 1, 2013. It noted that SSA had
confirmed that a portion of his SSA benefits were attributed to his years of federal service as an
employee under the FERS program. SSA reported that appellant’s current monthly benefit
amount was $1,998.30, but that he would only be entitled to $1,338.60 as his federal service
increased his monthly social security payment by $659.70. It noted that this difference of
$659.70 as the portion of social security benefits attributed to federal service and was the amount
that must be offset against his compensation benefits.
In a notice dated April 16, 2018, OWCP made a preliminary determination that a
$39,827.09 overpayment of compensation had been created for the period February 1, 2013
through March 31, 2018 as appellant was paid dual compensation under SSA and FERS
retirement without an appropriate offset. It found that he was without fault in the creation of the
overpayment. An OWCP memorandum noted the SSA rate with and without FERS, and the
amount of the monthly offset for the period in question. OWCP informed appellant of his
options if he wished to contest the preliminary finding. It also advised that in order to consider
the question of waiver or to determine a reasonable method of collection, he must complete the
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. Failure to submit the required information within 30 days would result in denial
of waiver of recovery of the overpayment.

2

On May 10, 2018 appellant requested waiver of the recovery of the overpayment and
argued that the overpayment occurred through no fault of his own. He asserted that he was not
responsible in the creation of the overpayment and, therefore, should not be penalized.
In a letter dated September 3, 2018, appellant argued that OWCP was careless in the
handling of his case and he had not created the overpayment. He stated that he was without fault
and repaying the overpayment would cause him difficulty.2 No additional evidence was
received.
By decision dated September 25, 2018, OWCP found that appellant received an
overpayment of compensation in the amount of $39,827.09 for the period February 1, 2013
through March 31, 2018, because the offset for SSA/FERS was not applied to his compensation
benefits when he began receiving SSA retirement benefits. It further found that it would not
waive recovery of the overpayment and that he could repay the overpayment by deducting
$300.00 every 28 days from his continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
his or her federal employment.3 Section 8116 limits the right of an employee to receive
compensation: While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of the implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-based benefits that are attributable to
federal service of the employee.5 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.6

2

The Board notes that OWCP scheduled an informal hearing on October 10, 2018. In his letter dated
September 3, 2018, appellant noted that he never requested a hearing, nor did he desire to have one. On
September 17, 2018 OWCP accepted his request to withdraw the hearing.
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019).

6

FECA Bulletin No. 97-09 (February 3, 1997); see also T.B., id.

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Section 404.310 of SSA regulations provides that entitlement to SSA compensation
begins at 62 years.7 Section 404.409 of SSA regulations provides that for individuals born from
1943 to 1954, full retirement age is 66 years.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $39,827.09 because he concurrently received SSA retirement
benefits while receiving FECA benefits for the period February 1, 2013 through March 31, 2018
without an appropriate offset.9
In its September 25, 2018 decision, OWCP found that an overpayment of compensation
was created for the period February 1, 2013 through March 31, 2018. The overpayment was
based on the evidence received from SSA with respect to retirement benefits paid to appellant.
Appellant has not challenged the fact or amount of overpayment. The record indicates that,
while he was receiving compensation for total disability under FECA, he was also receiving SSA
age-based retirement benefits. A claimant cannot receive both compensation for wage-loss and
SSA age-based benefits attributable to federal service for the same period.10 The information
provided by SSA established that appellant received age-based SSA benefits that were
attributable to federal service during the period February 1, 2013 through March 31, 2018.
Consequently, the fact of overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA
with respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific
periods from February 1, 2013 through March 31, 2018. OWCP provided its calculations for
each relevant period based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period February 1, 2013 through March 31, 2018 and finds that an overpayment of compensation
in the amount of $39,827.09 was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or

7

20 C.F.R. § 404.310.

8

Id. at § 404.409.

9

T.B., supra note 5.

10

See E.K., Docket No. 18-0587 (issued October 1, 2018).

11

See D.C., Docket No. 17-0559 (issued June 21, 2018).

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recovery would defeat the purpose of FECA or would be against equity and good conscience.12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses, and the
beneficiary’s assets do not exceed a specified amount as determined by OWCP.14 Additionally,
recovery of an overpayment is considered to be against equity and good conscience when an
individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.15
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 of an overpayment would
defeat the purpose of FECA or be against equity and good conscience. The information is also
used to determine the repayment schedule, if necessary.16 Failure to submit the requested
information within 30 days of the request shall result in a denial of waiver of recovery, and no
further request for waiver shall be considered until the requested information is furnished.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $39,827.09
overpayment of compensation.18
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against

12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
13

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
15

Id. at § 10.437(a)(b).

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

Id. at § 10.438(b).

18

See A.C., supra note 13.

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equity and good conscience.19 Appellant, however, had the responsibility to provide the
appropriate financial information to OWCP.20
In its preliminary determination dated April 16, 2018, OWCP clearly explained to
appellant the importance of providing the completed overpayment questionnaire and financial
information, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. It advised him that it would deny waiver
if he failed to furnish the requested financial information within 30 days. Appellant, responded
by correspondence that he was not responsible in the creation of the overpayment and, therefore,
should not be penalized; however, he did not complete a Form OWCP-20 or submit any financial
information necessary for OWCP to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.
Appellant has submitted no evidence that he had relied upon the incorrect payments to his
detriment or that he would experience severe financial hardship attempting to repay the debt.21
Consequently, as he did not submit the information required under section 10.438 of OWCP’s
regulations, which was necessary to determine his eligibility for waiver, OWCP properly denied
waiver of recovery of the overpayment.22
On appeal appellant contends that the overpayment occurred due to OWCP’s error. As
discussed, OWCP found him not at fault in the creation of the overpayment, however, he failed
to submit financial information to support waiver of recovery of the overpayment.23
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as the error is discovered or his attention is called to the same. If
no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation.

19

20 C.F.R. § 10.436.

20

Id. at § 10.438.

21

See V.T., Docket No. 18-0628 (issued October 25, 2018).

22

See S.B., Docket No. 16-1795 (issued March 2, 2017).

23

See D.M., Docket No. 17-0810 (issued October 2, 2017).

24

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

6

As noted, appellant did not complete the Form OWCP-20 nor did he submit financial
information as requested prior to the final September 25, 2018 decision. The overpaid individual
is responsible for providing information about income, expenses, and assets as specified by
OWCP.25 When an individual fails to provide requested financial information, OWCP should
follow minimum collection guidelines designed to collect the debt promptly and in full.26 As
appellant did not submit information to OWCP as requested, the Board finds that there is no
evidence in the record to show that OWCP erred in directing recovery of the $39,827.09
overpayment of compensation at the rate of $300.00 every 28 days from his continuing
compensation.27
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $39,827.09 for the period February 1, 2013 through March 31, 2018 because he concurrently
received SSA retirement benefits while receiving FECA benefits. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment and properly required recovery
of the overpayment by deducting $300.00 every 28 days from his continuing compensation
payments.

25

Id. at 10.438.

26

L.L., Docket No. 18-1103 (issued March 5, 2019); Frederick Arters, 53 ECAB 397 (2002).

27

See S.M., Docket No. 17-1802 (issued August 20, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the September 25, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 10-318
Issued: September 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 November 6, 2009 appellant, through her representative, filed a timely appeal from
the August 28, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied authorization for a change of physician. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office abused its discretion in denying authorization for a
change of physician.
FACTUAL HISTORY
On May 31, 1994 appellant, then a 34-year-old letter carrier, sustained an injury in the
performance of duty while pulling down her route. The Office accepted her claim for right
shoulder strain, cervical strain and right shoulder impingement.

In a prior appeal,1 the Board found that the Office met its burden to justify the
termination of compensation for the accepted right shoulder conditions, but did not meet its
burden to terminate compensation for the accepted cervical strain. In the most recent appeal,2
the Board noted that the Office had expanded its acceptance to include a cervical disc herniation,
but it did not advise the impartial medial specialist or request an opinion on whether the
herniation had resolved. The Board found that the Office did not meet its burden to justify the
termination of compensation for the accepted cervical conditions.
Appellant requested authorization to be treated by Dr. Marilyn M. Robertson, a Boardcertified neurologist in, San Francisco, because her longtime treating physician retired. The
Office noted that Dr. Robertson practiced 102 miles away from appellant’s home in Elk Grove,
south of Sacramento, meaning a 204-mile roundtrip. It advised appellant that it could not
authorize a transfer of care to Dr. Robertson because it required that the treating physician be
located within 25 miles of the claimant’s home. The Office added that there were appropriate
doctors within a 25-mile radius of her home who provided care for federal workers’
compensation patients.
Appellant’s representative argued that appellant had a doctor-patient relationship with
Dr. Robertson since 2003 or 2004 for treatment and care for her injuries.3 He stated that
regulations gave claimants the right to choose a physician as long as that physician was of good
standing. “The fact that the Office will not pay mileage for treatment over 25 miles, has not
prevented the claimant from seeing her former physician in San Francisco since she moved to
Elk Grove, Ca. in 2005.”
In a decision dated August 28, 2009, the Office denied authorization for a change of
physician. It observed that there was no shortage of neurologists in the Greater Sacramento area
and that it regularly dealt with a large number of physicians who worked out of the Sacramento
area. The Office found that appellant’s condition appeared to warrant against driving 204 miles
roundtrip to seek routine medical care. It noted that it was the drive from Elk Grove to San
Francisco that prompted appellant to file a notice of occupational injury claiming an aggravation
of her preexisting condition.4 Indeed, Dr. Robertson herself reported that the commute between
Sacramento and San Francisco contributed to appellant’s injury, as the vibrations of a moving
vehicle placed a strain on her spine. The Office further found that if appellant traveled to her
appointments in San Francisco via a moving vehicle, the trip could worsen her condition.
The Office found that appellant provided no compelling reason to change physicians. It
noted that she had only the initial choice of physician. In the interest of sound medical practice,
it was not the policy of the Office to transfer medical supervision unless there was some
compelling reason to do so. The Office found that appellant’s relationship with Dr. Robertson
was not a compelling reason. The extraordinary distance she would have to travel raised serious
1

Docket No. 05-1905 (issued March 6, 2006).

2

Docket No. 08-1843 (issued June 15, 2009).

3

Dr. Robertson saw appellant when the longtime treating physician was unavailable.

4

The Office File No. xxxxxx390.

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medical questions. The Office denied authorization and stated that appellant must select a
physician within a reasonable distance of her home.
On appeal appellant’s representative argues that the Office does not have the authority to
deny appellant the choice of physician. He characterized the Office’s objection to the distance as
unreasonable.
LEGAL PRECEDENT
The employee may initially select a physician to provide medical services, appliances,
and supplies, in accordance with such regulations and instructions as the Secretary considers
necessary and may be furnished necessary and reasonable transportation and expenses incident to
the securing of such services, appliances and supplies.5
When the physician originally selected to provide treatment for a work-related injury
refers the employee to a specialist for further medical care, the employee need not consult the
Office for approval. In all other instances, however, the employee must submit a written request
to the Office with her reasons for desiring a change of physician. The Office will approve the
request if it determines that the reasons submitted are sufficient. Requests that are often
approved include those for transfer of care from a general practitioner to a physician, who
specializes in treating conditions like the work related one or the need for a new physician when
an employee has moved.6
Office procedures state that the Federal Employees’ Compensation Act permits the
employee an initial choice of physician and ordinarily, the physician selected should be located
within 25 miles of the employee’s home or place of employment.7
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the
best interest of the claimant and the government. Employees who want to change attending
physicians must explain their reasons in writing and the Office must review all such requests.
The Office may approve a change when: the original treating physician refers the claimant to
another physician for further treatment; the claimant wants to change from the care of a general
practitioner to that of a specialist in the appropriate field or from the care of one specialist to
another in the appropriate field; or the claimant moves more than 25 miles from the original
physician. It must use discretion in cases where other reasons are presented.8
The Board has recognized that the Office, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under the Act. The
5

5 U.S.C. § 8103(a).

6

20 C.F.R. § 10.316.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.5.c (October 1990).
8

Id. at Chapter 3.300.6.c (June 2000).

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Office has the general objective of ensuring that an employee recovers from her injury to the
fullest extent possible in the shortest amount of time. It, therefore, has broad administrative
discretion in choosing means to achieve this goal. The only limitation on the Office’s authority
is that of reasonableness. 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 established facts. It is not enough to show merely that the
evidence could be construed to produce a contrary conclusion.9
ANALYSIS
Appellant submitted a written request to the Office with her reason for desiring a change
of physician. The question on appeal is whether the Office abused its discretion in denying that
request.
The retirement of appellant’s longtime treating physician warrants a change of physician.
But appellant asked the Office to transfer her medical care to Dr. Robertson in San Francisco.
Her reason has some merit. Appellant had seen Dr. Robertson in the past for her injuries. So
there was already some doctor-patient relationship. She knew Dr. Robertson, maybe felt
comfortable with her and Dr. Robertson was already familiar with appellant’s injury. But
Dr. Robertson was 102 miles away. A roundtrip for any medical appointment would, therefore,
be a considerable 204 miles. This was an unnecessary distance to travel because there was no
shortage of neurologists in the Greater Sacramento area. Moreover, there was some indication
that such a trip might worsen appellant’s cervical condition.
It appears that appellant filed a claim for compensation because her commute to San
Francisco had aggravated her condition. Her longtime physician reported that it would be
prudent for the employer to locate her near her Elk Grove home if further and progressive
injuries were to be avoided. Dr. Robertson reported that vibrations from a moving vehicle
placed a strain on appellant’s spine and contributed to her cervical injury. The Board notes that
appellant would not be commuting to see Dr. Robertson every weekday, but the risk of
aggravation from unnecessarily long drives was an appropriate Office consideration.
The Board finds that the Office properly exercised its discretion in denying authorization
for a change of physician. There is no proof of manifest error or clearly unreasonable judgment
or illogical action. Appellant has offered some reason for wanting to see Dr. Robertson, but the
Office has presented sufficient reason for denying her request. Such a transfer of care does not
appear necessary and reasonable or in the best interest of both appellant and the government.
The Board will therefore affirm the Office’s August 28, 2009 decision denying authorization.
On appeal appellant’s representative argues that the Office does not have the authority to
deny appellant the choice of physician. But this is not a case in which the Office has denied
appellant her initial choice of physician. She chose a physician long ago and he retired. What
she is requesting now is a transfer of her medical care to another physician. The Act gives the
Office discretion to grant or deny that request. It is the opinion of appellant’s representative that
9

Daniel J. Perea, 42 ECAB 221 (1990).

4

the Office’s objection to the distance was unreasonable, but given the evidence that driving such
a distance had already aggravated appellant’s cervical condition and the fact that qualified
physicians were easily available much closer to her home, it was an appropriate consideration.
CONCLUSION
The Board finds that the Office properly exercised its discretion in denying authorization
for a change of physician.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 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
__________________________________________
G.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 14-1150
Issued: September 15, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a March 17, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
for work from January 30 to 31, 2014 causally related to his accepted right ankle condition.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 17, 2014 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. 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 July 10, 2013 appellant, then a 53-year-old tractor trailer operator, filed a traumatic
injury claim alleging that he injured his right ankle that day when he slipped on the stairs. He
stopped work and returned to modified duty on July 27, 2013. OWCP accepted appellant’s
claim for right ankle sprain with right ankle instability. Appellant received authorized medical
treatment and physical therapy.
On December 20, 2013 appellant underwent authorized right ankle arthroscopy surgery.
He stopped work again and received disability compensation. On January 2, 2014 appellant
returned to full-time modified duty as a mail clerk. His duties included casing and wasting mail
for eight hours a day. The physical requirements of appellant’s job included sedentary work and
no driving.
Appellant continued to receive authorized medical treatment and physical therapy.
In a January 22, 2014 magnetic resonance imaging (MRI) scan report of the right ankle,
Dr. Scott Wiedenmann, a Board-certified diagnostic radiologist, reported effusions of the ankle
joint and subtalar joint without any additional internal derangement and tendinosis of the
Achilles and plantar fascia tendons without tear.
In a January 27, 2014 report, Dr. Gregory Solis, a Board-certified orthopedic surgeon,
related appellant’s complaints of right ankle pain and underwent right ankle surgery on
December 20, 2013. He reviewed appellant’s history and noted no changes. Dr. Solis stated that
he did not expect appellant to be 100 percent by this point but that most people at five weeks
postsurgery would be markedly better. He reported that appellant could resume working with
restrictions of minimal standing and walking and pushing, pulling and lifting up to 10 pounds.
In a January 27, 2014 work capacity evaluation, Dr. Solis noted appellant’s diagnosis of
right ankle sprain. He advised that appellant was not capable of performing his usual job but was
able to work full time with restrictions of standing, pushing, pulling and lifting up to four hours;
walking and climbing up to three hours; bending, stooping and kneeling up to two hours; and
squatting up to one hour.
On February 4, 2014 appellant filed a Form CA7 requesting disability compensation for
the period January 30 to 31, 2014. The employing establishment noted that it did not certify the
time and that there was no medical evidence to support appellant’s absence.
In a February 5, 2014 letter, Josephine Perron, a human resource management specialist
at the employing establishment, controverted appellant’s claim. She related that appellant stated
that he was out of work due to “pain” and reported that there was no medical documentation
which took him off work for the dates claimed.
By letter dated February 7, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim for disability compensation. It requested that he submit a
narrative medical report, with objective findings, which demonstrated that he was unable to work
for the period January 30 to 31, 2014 as a result of his accepted right ankle condition.
In a February 11, 2014 return to work note, Dr. Solis listed that appellant was unable to
work from January 30 to 31, 2014.
2

In a February 12, 2014 letter, Ms. Perron noted that appellant took off work from
January 30 to 31, 2014 stating that he was in too much pain to work. She advised appellant that
his medical restrictions reflected that he could work so he could not just take off and get paid by
OWCP. Ms. Perron contended that appellant failed to provide sufficient medical evidence
explaining why he was unable to work from January 30 to 31, 2014.
In a February 24, 2014 report, Dr. Solis related appellant’s complaints of right ankle pain
and that appellant informed him that he was getting better gradually improving. He stated that
appellant was working with restrictions and was concerned that climbing in and out of trucks
would aggravate his condition. Dr. Solis reviewed his history and noted no changes. He opined
that appellant should be improving postsurgery and that the intermittent activities he was
performing at work should not cause any significant problems. Dr. Solis stated that he would not
be able to put appellant on any more work restrictions since he expected the surgery itself to be
completely healed. The physician reported that appellant was at the point where he was not
going to do any harm to his ankle getting back to regular duties. Dr. Solis noted that he would
keep appellant on his current work restrictions of no loading and unloading. He recommended
more physical therapy and a follow-up examination in four weeks.
Appellant also submitted various hospital discharge and surgery reports dated
December 20, 2013.
In a decision dated March 17, 2014, OWCP denied appellant’s disability compensation
claim. It found that the medical evidence failed to establish that he was unable to work for the
period January 30 to 31, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. The term disability as used
in FECA means the incapacity because of an employment injury to earn the wages that the
employee was receiving at the time of injury.3 Whether a particular injury causes an employee
to become disabled for work and the duration of that disability are medical issues that must be
proved by a preponderance of reliable, probative and substantial medical opinion evidence.4
OWCP’s procedure manual discusses the evidence necessary if recurrent disability for
work is alleged within 90 days of return to duty. It is noted that the focus is on disability rather
than causal relationship of the accepted condition to the work injury. The procedure manual
states:
“The claims examiner should ask the claimant to submit a narrative statement
from the attending physician which describes the duties which the employee
cannot perform, and the demonstrated objective medical findings that form the
basis for renewed disability for work.”5
3

Paul E. Thams, 56 ECAB 503 (2005).

4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

5

Federal (FECA) Procedure Manual, Part 2 -- Recurrences, Chapter 2.1500.5 (June 2013).

3

The Board has held that if recurrent disability for work is claimed within 90 days or less
from the first return to duty, the attending physician should describe the duties which the
employee cannot perform and the demonstrated objective medical findings that form the basis
for the renewed disability for work.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
ANALYSIS
OWCP accepted that appellant sustained a right ankle sprain as a result of a July 10, 2013
employment injury and underwent surgery. Appellant stopped work and returned to modified
duty on January 2, 2014. On February 4, 2014 he filed a claim for disability compensation from
January 30 to 31, 2014. In a decision dated March 17, 2014, OWCP denied appellant’s claim for
disability compensation from January 30 to 31, 2014. The Board finds that appellant did not
meet his burden of proof to establish that he was disabled from work from January 30 to 31,
2014 as a result of his accepted right ankle condition.
Appellant submitted various reports by Dr. Solis. In a January 27, 2014 report, Dr. Solis
noted appellant’s complaints of right ankle pain and accurately described appellant’s history of
injury. He stated that most people at five weeks postsurgery would be markedly better than
appellant. Dr. Solis authorized appellant to work full time with restrictions of standing, pushing,
pulling and lifting up to four hours; walking and climbing up to three hours; bending, stooping
and kneeling up to two hours and squatting up to one hour. These restrictions would allow
appellant to continue the sedentary modified position that he had performed since
January 2, 2014.
In a February 11, 2014 return to work note, Dr. Solis listed that appellant was unable to
work from January 30 to 31, 2014. The Board notes that although Dr. Solis listed dates for
appellant’s period of disability, he provided no opinion on the cause of appellant’s inability to
work. It is unclear as to whether appellant’s inability to work was related to his accepted right
ankle condition. Furthermore, Dr. Solis provided no evidence of objective findings to
substantiate appellant’s inability to work on the days in question. Appellant was properly
notified by OWCP’s letter of February 7, 2014 that he would have to submit medical evidence
which contained objective medical findings and explained why he was unable to work on the
dates in question.
The additional January 22, 2014 diagnostic report by Dr. Wiedenmann is also insufficient
to establish appellant’s disability compensation claim as he failed to mention any period of
disability or explain, based on medical rationale, how appellant’s alleged inability to work from
January 30 to 31, 2014 resulted from his accepted right ankle condition.
On appeal, appellant states that, after he went to therapy on January 29, 2014, his right
foot was swollen and he was unable to walk or drive for the next two days. The record before
the Board however does not reflect that he submitted medical evidence to demonstrate that his
6

R.C., Docket No. 14-201 (issued May 8, 2014).

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

physical therapy prevented him from performing his modified-duty job from January 30
to 31, 2014. Appellant has not provided sufficient medical opinion explaining how objective
medical physical findings support his disability. The Board finds that OWCP properly denied
his claim.
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 was entitled to compensation
for disability for the period January 30 to 31, 2014.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, TAMPA PROCESSING
& DISTRIBUTION CENTER, Tampa, FL,
Employer
___________________________________________
Appearances:
Anthony S. Arenas Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1332
Issued: July 17, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 28, 2019 appellant, through counsel, filed an appeal from a March 20, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 19-1332.2
On February 22, 2013 appellant, then a 35-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on February 19, 2013 she felt a pop in her neck when lifting a tub
of mail while in the performance of duty. OWCP accepted the claim for displacement of cervical
1

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

The Board notes that following the March 20, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

intervertebral disc without myelopathy, anxiety disorder, and depression. On September 4, 2013
appellant returned to part-time limited-duty work for four hours per day and OWCP paid her wageloss compensation on the periodic rolls for her loss of wage-earning capacity. On July 17, 2014
she stopped work and elected disability retirement effective November 14, 2018.
On September 24, 2015 the employing establishment provided OWCP with a federal
employee health plan (FEHP) notice of change in health benefits enrollment (Form 2810),
indicating that enrollment code 112, should be transferred from the employing establishment to
OWCP effective July 17, 2014.
In a September 12, 2018 preliminary notice, OWCP advised appellant of its determination
that she had received an overpayment of compensation in the amount of $13,700.90 because it
failed to deduct health benefit premiums from her Federal Employees’ Compensation Act (FECA)
benefits for the period July 26, 2014 through September 16, 2017 and January 7 through
March 3, 2018. It also informed her of its preliminary determination that she was at fault in the
creation of the overpayment because she accepted payments which she knew or should reasonably
have known were incorrect. OWCP requested that appellant provide information regarding her
income, assets, and expenses on an enclosed overpayment recovery questionnaire (Form OWCP20) within 30 days, if she contested that an overpayment occurred.
In an overpayment action request dated October 1, 2018 and received on October 9, 2018,
appellant contested the preliminary overpayment determination. In an accompanying letter, she
disputed the overpayment amount and finding of fault. Appellant asserted that an overpayment of
compensation could not have occurred because she did not have insurance coverage during that
period and was subsequently notified by her health insurance carrier that her health benefits had
been cancelled. In support of her arguments contesting the preliminary overpayment decision,
appellant provided a timeline of letters, telephone calls, and notices with OWCP, the employing
establishment, and the healthcare provider documenting a history of her health insurance benefits.
By decision dated March 20, 2019, OWCP finalized the preliminary determination, finding
that appellant received a $13,700.90 overpayment of compensation for the period July 26, 2014
through September 16, 2017 and January 7 through March 3, 2018, as OWCP failed to deduct
health benefit premiums. It further found that she was at fault in the creation of the overpayment,
noting that “as of this date, no response has been received to the preliminary overpayment
determination” and she had “not contested the with fault finding.” OWCP requested that appellant
repay the amount of the overpayment in full.
The Board has duly considered the matter and finds that the case is not in posture for a
decision.3 In the case of William A. Couch,4 the Board held that, when adjudicating a claim,
OWCP is obligated to consider all evidence properly submitted by a claimant and received by
OWCP before the final decision is issued.

3

S.H., Docket No. 19-1582 (issued May 26, 2020).

4

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

2

In its March 20, 2019 decision, OWCP noted that, “as of this date, no response has been
received to the preliminary overpayment determination.” It further found that appellant had not
contested the finding of fault. The record reflects, however, that accompanying the October 1,
2019 overpayment action request was a detailed narrative statement and history of timeline
submitted by appellant disputing the preliminary overpayment determination. Appellant provided
arguments discussing why an overpayment of health benefit deductions could not have occurred
in her claim. She further provided arguments that the overpayment occurred through no fault of
her own. The evidence was received by OWCP on October 9, 2018.
It is crucial that OWCP address all relevant evidence received prior to the issuance of its
final decision, as the Board’s decisions are final with regard to the subject matter appealed.5
However, OWCP failed to follow its procedures by properly discussing all of the relevant evidence
of record prior to issuing the final overpayment decision on March 20, 2019.6 Thus, the Board
finds that this case is not in posture for decision, as OWCP did not address the above-noted
evidence in the March 20, 2019 decision.7 On remand OWCP shall review all evidence of record
and, following any further development as it deems necessary, it shall issue a de novo decision.8

5
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 7.
6

See generally J.S., Docket No. 19-1384 (issued April 8, 2020).

7

M.K., Docket No. 18-0714 (issued February 5, 2019).

8

M.P., Docket No. 16-1325 (issued November 2, 2016).

3

IT IS HEREBY ORDERED THAT the March 20, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further a proceedings
consistent with this order of the Board.
Issued: July 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Z., Appellant
and
U.S. POST OFFICE, POSTAL SERVICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 08-1050
Issued: March 3, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs’ dated June 29 and December 13, 2007 and January 3, 2008
decisions. Under 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 met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
refused to reopen appellant’s case for reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On May 10, 2007 appellant, a 36-year-old letter carrier, filed a (Form CA-1) traumatic
injury claim alleging emotional stress, blackouts and headaches due to being disciplined at the
employing establishment on May 9, 2007. He claimed that this was the fourth time the
employing establishment had unfairly disciplined him.

In report dated May 14, 2007, Dr. Semyon Barash, a specialist in psychiatry, stated that
on May 11, 2007 appellant was examined, at which time he related symptoms of anxiety,
depression and headaches. He noted that appellant felt constantly tense and was unable to focus
on simple tasks, including work-related responsibilities. Dr. Barash opined that appellant was
not able to perform his usual work responsibilities and required time off for treatment and
recovery. In a May 14, 2007 Form CA-20 report, he diagnosed adjustment disorder and acute,
mixed anxiety and depression. Dr. Barash checked a box indicating that the condition was
caused or aggravated by ongoing stress at work.
In a May 14, 2007 letter, Dave Nelson, appellant’s manager, controverted the claim. He
stated:
“[Appellant] was issued a 14-day suspension letter on May 9, 2007 upon his
return from the street. The last time he was issued a 14[-]day suspension he went
home sick leaving his route unattended. The next day, May 10, 2007, [appellant]
filed his Form CA-1 claim, which I believe was in retaliation for being issued the
14-day suspension.”
By letter dated May 22, 2007, the Office advised appellant that he needed to submit
additional factual and medical information in support of his claim. It asked him to address how the
May 10, 2007 incident resulted in any injury or disability and to submit a comprehensive medical
report from his treating physician describing his condition. The Office requested a physician’s
opinion as to whether appellant’s claimed emotional condition was causally related to his federal
employment. Appellant was provided 30 days to submit further evidence.
In a report dated May 22, 2007, Dr. Valeriy Chernov, a specialist in psychiatry, stated:
“[Appellant] reported feeling depressed, anxious, unable to sleep, experiencing
resistant negative thoughts and headaches. He reported feeling helpless and
unable to concentrate. [Appellant’s] level of energy is low and he has not been
enjoying many activities he used to get pleasure from in the past. I believe his
condition is related to his work. In my professional opinion, [appellant] is unable
to perform his work responsibilities and needs treatment at this time.”
In a May 22, 2007 CA-20 form report, Dr. Chernov reiterated the diagnoses and checked
a box indicating that the condition was caused or aggravated by employment activity.
In May 28, 2007 statement, appellant alleged that management had engaged in a pattern
of harassment, mistreatment and discrimination. He had been called into the supervisor’s office
four times in the prior year, all on frivolous and unjust grounds. The most recent incident
occurred on May 9, 2007 when appellant was issued a 14-day suspension for unauthorized use of
a cellular phone. Appellant contended that this charge was brought in retaliation for his filing
four complaints with his union. He filed an Equal Opportunity Employment (EEO) complaint on
March 6, 2007, following which management began calling him into the office to reprimand him
for frivolous reasons. Appellant alleged that his supervisor made false and groundless
accusations against him, such as taking too much time on the street and not taking out enough
mail in his deliveries. He asserted that his supervisor began approaching him in a hostile way,

2

yelling at him, checking up on him and following him on the street. Appellant noted that the
claims he filed were successful, after which management retaliated by suspending him on
May 9, 2007. He became extremely upset upon his receipt of the most recent disciplinary action
and the cumulative effect of his supervisor’s actions triggered his emotional condition on
May 10, 2007. Appellant experienced anxiety, stress, depression, headaches and black outs and
was unable to focus on simple tasks such as racking and sorting mail.
Appellant submitted copies of union grievance resolution forms dated November 8, 2006
to May 25, 2007. On November 8, 2006 he contended that management did not have cause to
issue him a letter of warning on October 28, 2006 for failure to follow instructions. The parties
agreed that the letter of warning was to be rescinded and expunged from the record. A
November 20, 2006 grievance concerned whether management had cause to issue a letter of
warning on November 13, 2006 for failure to be regular in attendance. A resolution reduced the
letter of warning to a discussion. In a January 13, 2007 grievance, appellant contended that
management failed to afford him equitable opportunities for overtime. The matter was resolved
with management agreeing to pay appellant 12 hours at the overtime rate in lieu of work. A
May 25, 2007 grievance pertained to whether management had cause to discipline appellant on
May 9, 2007 for failure to work in a safe manner (14-day suspension). The resolution reduced
the letter of warning to a discussion.
By decision dated June 29, 2007, the Office denied appellant’s claim. It accepted the
May 10, 2007 incident, in which he received the suspension letter, as a compensable factor of
employment. The Office noted that the grievances appellant filed on November 8 and 20, 2006
and January 13 and May 25, 2007, which were modified, showed a pattern that can lead to an
emotional condition. It found, however, that the medical evidence did not establish that his
claimed emotional condition was causally related to the accepted employment factor.
In a July 12, 2007 report, Dr. Chernov stated that appellant was complaining of severe
depression, anxiety, inability to sleep or concentrate, persistent negative thoughts and severe
headaches. He related that these symptoms developed after appellant’s altercation with his
supervisor. Dr. Chernov opined that appellant’s clinical condition was directly related to his
work and caused disability, which affected his level of functioning. He reiterated the diagnosis
of adjustment disorder, acute, with anxiety and depressed mood.
On July 13, 2007 appellant requested a review of the written record. In a statement dated
July 9, 2007, he stated that the May 10, 2007 work incident hindered his job duties because it
caused him mental stress, major headaches, black outs, made him “see things” and lose
concentration, which impaired his ability to rack mail. Appellant stated that he had since
returned to full duty. He contended that Mr. Nelson was an abusive administrator who had a
proclivity to harass his employees and was eventually transferred to Texas.
In a statement dated October 10, 2007, V.M. Gooding, appellant’s manager, stated:
“From past experiences with [appellant], he has problems taking orders from new
supervisors that may be assigned to the station for short periods of time. He is the
type of person that does not want to be challenged. When [appellant] is given an
order to do overtime or asked to put more mail in his case, he feels he knows

3

more than what the supervisor is asking him to do. There were times when he
would get angry with management and say that he does not feel good and is going
home. [Appellant] would do this to avoid forced overtime on another route that
he did not want to do. We have always required [him] to submit documentation
from his [physician] for unscheduled leave.
“Postal policy states that employees are not to use their cell[ular] phones while on
the work floor. They are not permitted to use them on the street while delivering
their route. The previous manager, Mr. Butcher, has made service talks regarding
this policy.
“Every morning carriers are given orders as to how much time they have out on
their route prior to going to the street. If a carrier cannot complete their route in
the allotted time, they are required to complete [an appropriate form]. Carriers
are disciplined for the use of unauthorized time. They must call to notify
management when they are having a problem completing their route.
Additionally, I have had no knowledge that (appellant) ever filed an EEO case.”
By decision dated December 13, 2007, an Office hearing representative denied
appellant’s claim, modified to find that the evidence did not establish administrative error or
abuse on May 9, 2007 when he was issued the 14-day suspension. Although appellant had filed
a claim for a traumatic injury, the Office’s June 29, 2007 decision did not specifically address
whether the May 9, 2007 incident was compensable or whether he had an emotional reaction to a
compensable incident on May 10, 2007.
By letter dated December 18, 2007, appellant requested reconsideration and reiterated his
contentions that management engaged in a pattern of harassment and abuse in retaliation for the
grievances he filed. He contended that the employing establishment erred in finding that he
violated the cellular phone policies. Appellant noted that these policies stated that “the use of
cellular phones is strictly prohibited while operating a motor vehicle” and “no usage permitted
on the work floor at any time.”1 He stated that management allowed employees to use a cellular
phone while on the street and, if operating a vehicle, so long as the vehicle was safely parked and
the motor had been turned off.
By decision dated January 3, 2008, the Office denied appellant’s application for review
on the grounds that it did not raise substantive legal questions or include new and relevant
evidence sufficient to require further merit review.
LEGAL PRECEDENT -- ISSUE 1
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
1

The record contains copies of the employing establishment’s policies prohibiting cellular phone use by
employees while on the work floor and while operating a motor vehicle, as of April 11, 2007.

4

employment factors are causally related to the claimed emotional condition.2 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.3
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to his alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.4 On the other hand, disability is not covered where it results from an employee’s fear of a
reduction-in-force, frustration from not being permitted to work in a particular environment or to
hold a particular position or to secure a promotion. Disabling conditions resulting from an
employee’s feeling of job insecurity or the desire for a different job do not constitute a personal
injury sustained while in the performance of duty within the meaning of the Act.5
ANALYSIS -- ISSUE 1
Appellant filed a traumatic injury claim for an emotional condition following his receipt
of a 14-day suspension on May 9, 2007. He subsequently expanded his claim, noting a series of
disciplinary actions by his supervisor which he alleged were erroneous and abusive.
The Board finds that the administrative and personnel actions taken by management in
this case have not been established as erroneous abusive and are therefore not considered factors
of employment. An employee’s emotional reaction to an administrative or personnel matter is
not covered under the Act, unless there is evidence that the employing establishment acted
unreasonably.6 In the instant case, appellant has not submitted evidence that his supervisor acted
unreasonably or committed error with regard to disciplinary actions taken.
Appellant contends that his supervisor engaged in a pattern of harassment against him,
demonstrated by the four disciplinary charges against him within the prior year. He asserted that
this constituted harassment, culminating in the May 9, 2007 incident in which he was issued a
14-day suspension for unauthorized use of a cellular phone. The Board finds that appellant
failed to establish a compensable factor of employment with respect to the disciplinary actions
taken from November 2006 through May 10, 2007. Disciplinary matters consisting of
counseling sessions, discussions or letters of warning for conduct pertaining to actions taken in
an administrative capacity and do not arise from the employee’s regular or specially assigned
dates.7 In this case, there is insufficient evidence to find that appellant’s supervisor acted
abusively in suspending appellant in May 2007 or that the letters of warning were issued in error.
2

See Debbie J. Hobbs, 43 ECAB 135 (1991).

3

See Ruth C. Borden, 43 ECAB 146 (1991).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Id.

6

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

7

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

5

The record reflects that the letters of warning were later reduced to discussion and that
management resolved appellant’s grievances over lack of overtime opportunities by agreeing to
pay him 12 hours at the overtime rate. The fact that personnel actions are modified, rescinded or
dismissed does not, in and of itself, establish error or abuse.8 The grievances were settled
without any admission of guilt or fault by the parties involved. With regard to appellant’s
reaction to his receipt of the May 9, 2007 notice of suspension, he has not submitted any
evidence to establish error or abuse by his supervisor in issuing the disciplinary letter. Any
anxiety on behalf of appellant must be considered self-generated. Regarding his allegation that
he developed stress due to insecurity about maintaining his position, the Board has previously
held that a claimant’s job insecurity is not a compensable factor of employment under the Act.9
Thus, appellant has not established a compensable employment factor.
Appellant alleged that his supervisor made derogatory remarks against him and treated
him in a demeaning, condescending manner. However, he did not submit sufficient evidence to
establish his allegations as factual. There are no statements from any witnesses to such
conduct.10 As such, appellant’s allegations constitute mere perceptions or generally stated
assertions of dissatisfaction with a certain superior at work and do not establish his claim for an
emotional disability.11 Mere perceptions of harassment or discrimination are not compensable; a
claimant must establish a basis in fact for the claim by supporting his allegations with probative
and reliable evidence.12
The Office reviewed all of appellant’s allegations of harassment and error and found that
they were not substantiated by the evidence of record. Appellant has not submitted evidence
sufficient to establish that his supervisor committed error or was abusive towards him in the
disciplinary actions. As such, appellant has not established a compensable work factor. For this
reason, the medical evidence need not be considered.13
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.14 Evidence that repeats

8

See Sherry L. McFall, 51 ECAB 436 (2000); Garry M. Carlo, 47 ECAB 299 (1996).

9

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

10

See Joel Parker, Sr., 43 ECAB 220 (1991) (The Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
11

See Debbie J. Hobbs, supra note 2.

12

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

13

See Margaret S. Krzycki, supra note 12.

14

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

6

or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.15
ANALYSIS -- ISSUE 2
Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law; he has not advanced a relevant legal argument not previously considered by the
Office; and he has not submitted relevant and pertinent evidence not previously considered by
the Office. He reiterated his contentions that his supervisor engaged in a pattern of harassment
by issuing disciplinary actions against him and that his receipt of the May 9, 2007 notice of
suspension was abusive and erroneous. Appellant also reiterated that Mr. Nelson made
derogatory comments toward him and treated him in a condescending, demeaning manner.
These contentions, however, were previously considered and rejected by the Office and are
therefore cumulative and repetitive. Appellant has failed to submit evidence showing that
management acted improperly by disregarding its own policies regarding restrictions on cellular
phone usage. His reconsideration request failed to show that the Office erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
the Office. The Office did not abuse its discretion in refusing to reopen appellant’s claim for a
review on the merits.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty. The Board finds that the Office
properly refused to reopen his case for further reconsideration on the merits.

15

Howard A. Williams, 45 ECAB 853 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the January 3, 2008, December 13 and June 29,
2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Newark, NJ, Employer
__________________________________________

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

Docket No. 08-1481
Issued: January 27, 2009

Case Submitted on the Record

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

JURISDICTION
On April 25, 2008 appellant filed a timely appeal from a March 28, 2008 merit decision
of the Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation and that she was at fault in the creation of the overpayment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant received a $1,185.03 overpayment of compensation
from September 18 to 30, 2006 because she received compensation for total disability after she
returned to work; and (2) whether she was at fault in the creation of the overpayment.
FACTUAL HISTORY
On April 23, 2003 appellant, then a 41-year-old detention enforcement officer, filed a
traumatic injury claim alleging that she strained her neck in the performance of duty on
April 17, 2003. The Office accepted her claim for C5-6 disc herniation and cervical
radiculopathy and placed her on the periodic rolls.

On September 21, 2004 appellant was notified that, in order to avoid an overpayment of
compensation, she was to immediately notify the Office of her return to work. She was advised
that she was required to return any check to the Office which included a period during which she
worked.
Appellant returned to limited-duty employment on September 18, 2006, with no loss of
earnings. Using direct deposit, the Office paid appellant the amount of $2,552.38 in
compensation for total disability from September 3 to 30, 2006. The record contains calculations
showing that appellant should have been paid the amount of $1,367.35 for the period
September 3 to 17, 2006, the date prior to her return to work. The Office calculated that the
difference between the amount paid for the entire period and the amount to which appellant was
entitled, resulted in an overpayment of $1,185.03.
On April 10, 2007 the Office notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $1,185.03 for the period
September 18 to 30, 2006 because she received compensation for total disability after she
returned to work, and that she was at fault in the creation of the overpayment, as she knew or
should have known that she was not entitled to receive compensation for the described period. It
informed appellant that she had 30 days to request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing on the issues of fault and a possible waiver.
On September 12, 2007 appellant requested a hearing on the issues of overpayment and
waiver. In a January 14, 2008 telephone conference, she acknowledged that she received
compensation through September 30, 2006, which was deposited directly into her bank account.
Although appellant did not contest the amount of the overpayment, she contended that she was
not at fault in the creation of the overpayment, as she had notified the Office of her return to
work in a timely fashion. She further stated that repaying the overpayment would create severe
financial hardship. Appellant submitted supporting financial information reflecting monthly
income of $3,500.00, and monthly expenses of $3,540.00.
By decision dated March 28, 2008, the Office finalized its finding that appellant received
an overpayment of compensation in the amount of $1,185.03 for the period September 18 to 30,
2006, based on her receipt of compensation for disability after her return to work. It further
found that she was at fault in the creation of the overpayment, as she accepted a payment which
she knew or should have known was incorrect.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.2

1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102.

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Section 8116 of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides that, while an employee is receiving compensation,
she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.3 The Office’s regulations state in pertinent part: compensation for wageloss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents her from earning the wages earned before the work-related injury.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,185.03. The record supports and appellant has not disputed that she continued to receive
compensation from the date that she returned to work on September 18 to 30, 2006 in the amount
of $1,185.03. When an employee returns to work and ceases to have any loss of wages, she is no
longer entitled to compensation for wage loss.5 As appellant was not entitled to compensation
after her return to work, the Office properly found an overpayment of compensation in the
amount of $1,185.03.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and its implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault, and
when adjustment or recovery would defeat the purpose of the Act, or would be against equity
and good conscience.6 Section 10.433 of the implementing regulations provides that the Office
may consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.7 The regulation further provides 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.8 Under the regulations, a recipient will be found to
be at fault with respect to creating an overpayment if he or she accepted a payment which he or
she knew or should have known to be incorrect.9 Whether the Office determines that an
individual was at fault with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment.10
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
3

Id. at § 8116(a).

4

20 C.F.R. § 10.500(a).

5

See Kenneth E. Rush, 51 ECAB 116 (1999).

6

20 C.F.R. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

7

Id. at § 10.433(a).

8

Id.

9

Id. at § 10.433(a)(3).

10

Id. at § 10.433(b).

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months with clear knowledge that the payments were incorrect.11 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.12
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault in the creation of a $1,185.03
overpayment from September 18 to 30, 2006.
An overpayment of compensation occurred in this case when appellant returned to fulltime work on September 18, 2006 and received compensation for temporary total disability for
the period September 3 to 30, 2006. The compensation check dated September 30, 2006 thus
covered two periods: a period of total disability through September 17, 2006, for which
appellant remained entitled to compensation and a period of full-time employment from
September 18 to 30, 2006 for which she was not entitled to compensation. It is during this latter
period that the overpayment occurred.
The Office found that appellant was at fault in the creation of the overpayment based on
the fact that she accepted a payment which she knew or should have known to be incorrect. This
case, however, is distinguishable from those in which a claimant returns to work, subsequently
receives a compensation check in the mail covering a period of employment, and knows or
should know that she is not entitled to such compensation, but decides nonetheless to cash or
deposit the check. In such cases, the cashing or depositing of the check constitutes acceptance.13
In this case, appellant authorized the Office to deposit her compensation directly to her bank
account. After she notified the Office of her return to work on September 18, 2006, she received
no check in the mail. Under the facts of this case, appellant had no opportunity to make a
decision as to the correctness of the September 30, 2006 check before it was deposited to her
account. While she accepted the overpayment by gaining control of the funds deposited into her
bank account pursuant to her authorization, she did not know that she would receive an incorrect
payment on that day.14
The Board finds that under the circumstances of this case the Office has not presented
sufficient evidence to establish that appellant accepted a payment which she knew or should have
known to be incorrect. The Board will, therefore, reverse the Office’s finding of fault and
remand the case to the Office for further development and a final decision on the issue of waiver.

11

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

12

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

13

William F. Salmonson, 54 ECAB 152 (2002). Gerald A. Karth, 36 ECAB 503 (1985) (holding that the
claimant had an obligation to return any checks to the Office after his return to work).
14

See Tammy Craven, 57 ECAB 689 (2006).

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CONCLUSION
The Board finds that appellant received a $1,185.03 overpayment of compensation from
September 18 to 30, 2006 because she continued to receive compensation for total disability after
she returned to work. The Board further finds that she was without fault in the creation of the
overpayment, and the case will be remanded to the Office to determine whether she is entitled to
waiver.15
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2008 is affirmed in part and set aside in part, and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: January 27, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

The Board does not have jurisdiction to review the recovery of the overpayment. The Board’s jurisdiction is
limited to reviewing those cases where the Office seeks recovery from continuing compensation under the Act. See
20 C.F.R. § 10.441(a); L.C., 59 ECAB ___ (Docket No. 08-209, issued June 16, 2008), n.24, citing Ronald E.
Ogden, 56 ECAB 278 (2005).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dallas, TX, Employer
__________________________________________

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

Docket No. 13-1421
Issued: November 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 29, 2013 appellant filed a timely appeal from a January 25, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an
employment-related injury. 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 her burden of proof to establish an injury in the
performance of duty on November 4, 2012, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the January 25, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 7, 2012 appellant, then a 34-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging a back injury that radiated into her buttocks and legs while
assisting a resident into a sitting position in the performance of duty on November 4, 2012.
In a December 19, 2012 letter, OWCP notified appellant of the deficiencies of her claim.
It requested additional factual and medical evidence. OWCP afforded her 30 days to submit
additional evidence and respond to its inquiries. Appellant did not respond.
By decision dated January 25, 2013, OWCP accepted that the November 4, 2012 incident
occurred as alleged but denied the claim finding that appellant failed to submit evidence
containing a medical diagnosis in connection with the injury or events. It found that she did not
establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
ANALYSIS
OWCP has accepted that the employment incident of November 4, 2012 occurred at the
time, place and in the manner alleged. The issue is whether appellant sustained an injury as a
3

5 U.S.C. §§ 8101-8193.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See also Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

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result of the employment incident. The Board finds that she did not establish an injury in
connection with the November 4, 2012 employment incident.
In a December 19, 2012 letter, OWCP notified appellant of the deficiencies of her claim
and requested additional factual and medical evidence. It afforded her 30 days to submit
additional evidence and respond to its inquiries. She did not respond within the allotted time.
As appellant has not submitted any medical evidence to support her allegation that she sustained
an injury related to the November 4, 2012 employment incident, she has failed to meet her
burden of proof.7
The Board notes that, following the issuance of the January 25, 2013 OWCP decision,
appellant submitted new medical evidence. The Board is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision.8 Appellant may submit that
evidence or 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 met her burden of proof to establish an injury in
the performance of duty on November 4, 2012, as alleged.

7

See Donald W. Wenzel, 56 ECAB 390 (2005).

8

See supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the January 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison Heights, MI, Employer
__________________________________________

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

Docket No. 08-1341
Issued: October 17, 2008

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 April 2, 2008 appellant filed a timely appeal from a January 11, 2008 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration. Because
more than one year has elapsed from the last merit decision dated November 17, 2006 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.
FACTUAL HISTORY
On March 10, 2006 appellant, then a 54-year-old address management specialist, filed an
occupational disease claim alleging that she developed severe depression, hypertension, ulcers
and diabetes due to stress at work. By decisions dated April 19 and November 17, 2006, the
Office denied her claim. On November 13, 2007 appellant requested reconsideration and alleged

that she developed her emotional condition due, in part, to a heavy work load.1 She repeated her
allegation that she was subjected to a hostile work environment. Appellant submitted a copy of a
March 10, 2000 memorandum and a January 4, 2001 e-mail from Annamarie DeBella in which
she described her problems with supervisors. She also submitted evidence previously considered
by the Office.
By decision dated January 11, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was not sufficient to warrant further merit
review of her claim. It also noted that she now claimed a new employment factor, a heavy work
load. Previously appellant had alleged a hostile work environment, an allegation which the
Office found to be unsupported by the evidence. She was advised to file a new claim if she
wished the Office to consider a new employment factor.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that the evidence or argument submitted by a claimant must
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8

1

The employing establishment provided a December 24, 2007 response to appellant’s new allegation of a heavy
work load and also denied her previous allegations of a hostile work environment.
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8128(a).

4

Annette Louise, 54 ECAB 783, 789-90 (2003).

5

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.607(a).

8

20 C.F.R. § 10.608(b).

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ANALYSIS
Appellant requested reconsideration of the November 17, 2006 merit decision. She
repeated her allegation that she was subjected to a hostile work environment and submitted
evidence previously of record. The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record does not constitute a
basis for reopening a case. Therefore, the repetition of appellant’s allegation of a hostile work
environment, the submission of evidence previously of record does not constitute relevant and
pertinent new evidence not previously considered by the Office.
In her reconsideration request, appellant also claimed a new employment factor, a heavy
work load. She submitted statements from a Ms. DeBella who described her personal problems
with supervisors. Ms. DeBella’s statements do not pertain to the issue of her allegations of a
hostile work environment. The submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.9 The issue in the
November 17, 2006 merit decision was whether appellant sustained an injury due to a hostile
work environment. Therefore, the new allegation of a heavy work load and the statements from
Ms. DeBella do not constitute relevant and pertinent new evidence not previously considered by
the Office.
Appellant did not submit evidence or argument that showed that the Office erroneously
applied or interpreted a specific point of law, advanced a relevant legal argument not previously
considered or constituted relevant and pertinent new evidence not previously considered by the
Office. Therefore, the Office properly denied her request for reconsideration.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.

9

D.K., 59 ECAB __ (Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 11, 2008 is affirmed.
Issued: October 17, 2008
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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