United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Roanoke, VA, Employer
__________________________________________

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

Docket No. 14-1735
Issued: December 24, 2014

Case Submitted on the Record

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

JURISDICTION
On August 6, 2014 appellant timely appealed the March 14, 2014 merit decision and the
April 10, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has a ratable impairment of the left upper extremity
and/or right lower extremity; and (2) whether OWCP properly declined to reopen appellant’s
case for merit review under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its April 10, 2014 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2014).

FACTUAL HISTORY
Appellant, a 67-year-old retired mail processing clerk, sustained injuries to his head,
chest, left arm, and right lower extremity as a result of a July 29, 2009 employment-related
motor vehicle accident (MVA). His accepted conditions include multiple left rib closed fractures
(ICD-9 807.09) and left traumatic pneumothorax (ICD-9 860.0).3 Appellant also sustained an
open fracture of the left radius/ulna (ICD-9 813.93) and a right ankle closed fracture of the
medial malleolus (ICD-9 824.0). Accepted head injuries include traumatic subarachnoid
hemorrhage without open intracranial wound (ICD-9 852.00) and complicated open wound of
the scalp (ICD-9 873.1). Appellant underwent surgery to repair his left arm and right leg
fractures.
OWCP paid wage-loss compensation for temporary total disability through
February 18, 2010. Appellant subsequently returned to work in a part-time, limited-duty
capacity and received compensation for four hours of lost wages per day until he retired in
December 2010.
On July 10, 2012 appellant filed a claim for a schedule award (Form CA-7).
On July 19, 2012 OWCP advised appellant that the then-current record did not support
his claim for a schedule award. It further advised him to provide an impairment rating under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2008).
OWCP subsequently received July 25, 2012 treatment notes and an attending physician’s
report (Form CA-20) from Dr. Thomas E. Shuler.4 The July 25, 2012 treatment notes report that
appellant had an active summer playing golf and walking. Appellant was experiencing some
ankle pain and swelling, and had done nothing in terms of edema control, bracing, or wrapping.
He rated his pain about 4 out of 10. On physical examination, Dr. Shuler noted 1+ lymphedema
of the lower extremity. He also noted that all of appellant’s surgical wounds were well healed.
Dr. Shuler indicated that appellant had good range of motion, but he also noted some
impingement in range and some anterolateral pain in dorsiflexion eversion and inversion. He
stated that appellant definitely needed to improve his strength, noting that he was about 3+/5 in
eversion.
Recent right ankle x-rays showed that all hardware was intact and in good position.
Dr. Shuler noted the onset of a little osteoarthritis, which was to be expected. He further
commented that considering the high-grade injury appellant sustained, overall he looked quite
good on x-ray.
According to the treatment notes, Dr. Shuler reviewed the July 25, 2012 ankle x-rays
with appellant and explained the findings. He also discussed soft tissue management and the
importance of wrapping appellant’s ankle. Furthermore, Dr. Shuler advised appellant of the
3

Appellant’s medical records also referenced a left clavicle fracture. However, OWCP has not accepted this
particular condition.
4

Dr. Shuler is a Board-certified orthopedic surgeon.

2

importance of low impact activity, such as riding a golf cart instead of walking a lot of sloped
and uneven surfaces. Additionally, he recommended strength building exercises for appellant’s
ankle. Dr. Shuler advised appellant to return on an as-needed basis.
In his July 25, 2012 CA-20, Dr. Shuler diagnosed right ankle fracture, left wrist fracture
with tendon involvement, and clavicle fracture. He indicated that appellant was able to perform
light work as of February 22, 2010. Dr. Shuler also noted that appellant reached maximum
medical improvement (MMI).
OWCP later received Dr. Shuler’s January 16, 2013 treatment records, which included
repeat x-rays of the right ankle, left wrist, and left forearm. Appellant reported that his ankle
ached frequently. He also noted that his pain worsened with walking a half mile or greater.
Appellant wore a brace when planning to walk a distance. Clinical examination of the right
lower extremity showed 1+ lymphedema. Appellant’s scars were noted to be pale and flat, and
his skin was warm, dry, and intact. Dr. Shuler detected a pulse at the dorsalis pedis artery. He
also noted that sensation was intact to light touch. Appellant’s range of motion was “good.”
Dr. Shuler reported dorsiflexion to neutral. Strength on dorsiflexion and plantar flexion was 4/5,
and eversion strength was 3+/5. Dr. Shuler also noted that appellant was tender to palpation at
the medial malleolus over distal hardware.5 Appellant reached MMI and reportedly had no
desire to have his hardware removed. With respect to appellant’s right upper extremity,
Dr. Shuler reported that he could make a full fist. He also noted “[pronation] full [supination] 10
degrees limitation.” The January 16, 2013 treatment notes also indicate that appellant’s wrist
and forearm x-rays showed good healing.
On January 30, 2014 OWCP contacted Dr. Shuler directly and asked him to submit an
impairment rating in accordance with the sixth edition of the A.M.A., Guides (2008). It sent
copies of the January 30, 2014 correspondence to both appellant and his then-counsel and
advised that it was appellant’s responsibility to ensure that Dr. Shuler provide the requested
information within 30 days. However, no additional evidence was received within the allotted
time.
In a March 14, 2014 decision, OWCP denied appellant’s claim for a schedule award.
On March 31, 2014 appellant requested reconsideration. Along with the request, he
submitted operative reports dated July 29 and 31, 2009. Appellant also submitted an August 6,
2009 hospital discharge summary, as well as Dr. Shuler’s July 25, 2012 and January 16, 2013
treatment records. Additionally, he provided a March 24, 2014 report from Dr. Shuler, who
found 7 percent impairment of the left upper extremity (LUE) and 27 percent impairment of the
right lower extremity (RLE) based on the fifth edition of the A.M.A., Guides (2001). With
respect to appellant’s left forearm, Dr. Shuler noted that there was some mild limitation of range
of motion. He also indicated that appellant’s x-rays showed good healing. As to appellant’s
right lower extremity, Dr. Shuler found stage 2 lymphedema. He reported moderate swelling
that was incompletely controlled with elastic supports. Dr. Shuler additionally noted that
appellant still had some weakness, with reported ankle strength of 3+ to 4 out of 5. Appellant’s 7

5

The January 16, 2013 treatment records included additional remarks regarding right ankle x-ray findings and
assessment/plan that were consistent with Dr. Shuler’s July 25, 2012 treatment notes.

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percent LUE rating was based on scarring and restriction of motion and the 27 percent RLE
rating was based on stage 2 lymphedema (15 percent) and weakness (12 percent).
By decision dated April 10, 2014, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).8
ANALYSIS -- ISSUE 1
At the time OWCP issued its March 14, 2014 schedule award decision, the record did not
include an impairment rating regarding appellant’s upper and lower extremities. Prior to denying
his claim, OWCP twice advised appellant of the need to submit an impairment rating under the
A.M.A., Guides (6th ed. 2008). Dr. Shuler’s July 25, 2012 attending physician’s report (CA-20)
and treatment notes did not specifically address impairment. Similarly, his January 16, 2013
treatment notes failed to address the extent of any upper or lower extremity impairment. These
records did not include a sufficiently detailed description of impairment such that one could
visualize the character and degree of appellant’s disability.9 Dr. Shuler provided minimal
examination findings regarding appellant’s left wrist/hand. While his notes regarding appellant’s
right ankle condition included mention of pain, swelling, and weakness, he otherwise provided
scant information to allow one to quantify the extent of any impairment.
On January 30, 2014 OWCP contacted Dr. Shuler directly and asked that he submit an
impairment rating in accordance with the sixth edition of the A.M.A., Guides (2008). No
additional evidence was received within the 30-day allotment. Consequently, OWCP denied
appellant’s claim on March 14, 2014. Based on the record at the time, the Board finds that
appellant failed to establish entitlement to a schedule award.

6

For total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1). For
a 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. Id. at § 8107(c)(2).
7

20 C.F.R. § 10.404.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
9

See id. at Chapter 2.808.5b(2) (February 2013).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.10 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.11 One such limitation is that the application for
reconsideration must be sent within one year of the date of the merit decision for which review is
sought.12 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.13 When a timely application for reconsideration does not meet at least
one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
The March 31, 2014 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Appellant also did not advance
any relevant legal arguments not previously considered by OWCP. He merely noted that he was
previously unaware that Dr. Shuler had not submitted an impairment rating. The Board finds
that appellant is not entitled to a review of the merits based on the first and second requirements
under section 10.606(b)(2).15
Appellant also failed to submit any relevant and pertinent new evidence with his
March 31, 2014 request for reconsideration.
Most of the evidence he provided on
reconsideration was previously submitted, such as Dr. Shuler’s July 25, 2012 and January 16,
2013 treatment notes. Providing additional evidence that repeats or duplicates information
already in the record does not constitute a basis for reopening a claim.16 The only new evidence
was Dr. Shuler’s March 24, 2014 impairment rating. After briefly summarizing appellant’s
treatment through January 16, 2013, Dr. Shuler concluded that he had 7 percent LUE impairment
and 27 percent RLE impairment. Although the rating was noted to have been based on
application of the A.M.A., Guides (5th ed. 2001), he omitted any reference to specific chapters,
sections, Tables, and/or Figures upon which he relied in determining the extent of appellant’s
upper and lower extremity impairments. Moreover, Dr. Shuler’s reported reliance on the fifth

10

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.607.

12

Id. at § 10.607(a).

13

Id. at § 10.606(b)(2).

14

Id. at §§ 10.607(b), 10.608(b).

15

Id. at § 10.606(b)(2)(i) and (ii).

16

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

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edition of the A.M.A., Guides (2001) was contrary to OWCP’s repeated instructions regarding
use of the sixth edition of the A.M.A., Guides (2008).
According to Dr. Shuler, the upper extremity impairment was due to limited motion and
scarring and the lower extremity rating was based on swelling and weakness. He appears to have
relied on his January 16, 2013 examination findings. While ostensibly new, Dr. Shuler’s
March 24, 2014 impairment rating was largely based on prior evidence OWCP already deemed
insufficient to support appellant’s claim for a schedule award. Moreover, his mere reference to
an outdated and inapplicable edition of the A.M.A., Guides does not make this latest report
“relevant and pertinent.” Because appellant did not provide any new medical evidence that
might arguably impact the prior decision, he is not entitled to a review of the merits based on the
third requirement under section 10.606(b)(2).17 Accordingly, OWCP properly declined to reopen
appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
Appellant failed to establish entitlement to a schedule award. The Board also finds that
OWCP properly denied further merit review with respect to his March 31, 2014 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the April 10 and March 14, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
17

20 C.F.R. § 10.606(b)(2)(iii).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, CICERO POST
OFFICE, Cicero, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0400
Issued: July 8, 2019

Case Submitted on the Record

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

JURISDICTION
On December 13, 2018 appellant, through counsel, filed a timely appeal from an
October 26, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 26, 2018 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability
commencing October 28, 2017, causally related to his accepted December 7, 2016 employment
injury.
FACTUAL HISTORY
On December 27, 2016 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on the same date he injured his lower back when he slipped and
fell on snow/ice while in the performance of duty. He stopped work on December 28, 2016.
OWCP initially accepted the claim for lower back strain, left hip strain, and right knee contusion.
It subsequently expanded appellant’s accepted conditions to include aggravation of lumbar
spondylosis and aggravation of left hip osteoarthritis.
Although appellant had been released to resume work in a limited-duty capacity, the
employing establishment was unable to accommodate his work restrictions. Therefore, effective
February 11, 2017, OWCP paid him wage-loss compensation for temporary total disability on the
supplemental rolls. On August 2, 2017 appellant returned to work in a limited-duty capacity, but
worked only intermittently as he participated in an OWCP-approved work hardening program. He
continued to receive wage-loss compensation benefits on the supplemental rolls.
On October 17, 2017 appellant underwent a functional capacity evaluation (FCE). In a
report of the same date, Paul Sullivan, a physical therapist, explained that appellant was unable to
finish the FCE due to shortness of breath, dizziness, and high blood pressure.
In an October 20, 2017 FCE evaluation report, Mr. Sullivan indicated that appellant
showed inconsistent performance and unacceptable effort during the evaluation. He opined that
appellant was capable of greater functional abilities than demonstrated during the FCE.
Mr. Sullivan noted that appellant was capable of performing work in the light physical demand
level with lifting occasionally up to 20 pounds.
In an October 23, 2017 examination and work activity status report, Dr. Sajjad Murtaza,
Board-certified in physical medicine and rehabilitation, related that appellant still experienced pain
in the lower lumbar spine and left hip. He reviewed the results of the FCE and reported that
examination was “unchanged from previous examination.” Dr. Murtaza diagnosed left hip strain,
right lower leg and knee contusion, and facet lower back pain. He indicated that he would provide
work restrictions and see how appellant did after his return back to work status.
Dr. Murtaza completed a duty status report (Form CA-17), which indicated that appellant
could work full-time modified duty. He noted restrictions of no climbing, bending/stooping up to
two hours; pushing/pulling for two to six hours; sitting, walking, and twisting up to four hours;
and standing, simple grasping, fine manipulation, reaching above the shoulder, driving a vehicle,
operating machinery, and lifting/carrying 35 pounds continuously and 50 pounds intermittently up
to eight hours per day.
On October 27, 2017 appellant accepted a modified-job offer as a city letter carrier. He
noted that he was accepting the job offer under protest. The duties of the position included casing
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mail and tie outs for two hours and delivering mail on flat land only for three to four hours. The
physical requirements were lifting 35 pounds continuously and 50 pounds intermittently up to
eight hours per day, standing up to eight hours per day, and sitting and walking up to four hours
per day.
In an October 30, 2017 report, Dr. Murtaza indicated that appellant was seen for an
“emergency visit” after returning to work with restrictions. He related that appellant complained
of continued back, lower lumbar spine, and left hip pain. Dr. Murtaza noted: “[appellant] states
he is absolutely unable to do the work activities including severe pain.” He reported that he would
decrease some of appellant’s work restrictions by half of the number of hours. Dr. Murtaza
indicated that appellant was at maximum medical improvement.
In an October 30, 2017 duty status report (Form CA-17), Dr. Murtaza updated appellant’s
work restrictions to twisting up to two hours, standing up to four hours, and driving up to four
hours. The previous work restrictions did not change.
On November 29, 2017 appellant filed a claim for compensation (Form CA-7) for
intermittent partial disability for the period October 28 through November 25, 2017. On the
subsequent time analysis form (Form CA-7a), he reported that on October 28, 2017 he worked
4.22 hours and used 3.78 hours of leave without pay (LWOP). Appellant indicated that he used
five hours of sick leave and three hours of LWOP on November 3, 4, 6, 7, 8, 10, and 14, 2017.
Beginning November 20, 2017, he reported that he used three hours of sick leave and five hours
of LWOP.4
In an e-mail dated December 5, 2017, OWCP asked the employing establishment if the
modified-job offer dated October 27, 2017 was still open and available to appellant. The
employing establishment responded that it was still available.
On December 12, 2017 appellant filed another Form CA-7 claiming disability
compensation for the period November 25 through December 8, 2017. On the Form CA-7a dated
December 12, 2017, he claimed three hours of sick leave and five hours of LWOP for the period
November 25 to December 8, 2017.
OWCP issued development letters dated December 5 and 18, 2017 to appellant informing
him that it had received his claim(s) for wage-loss compensation commencing October 28, 2017.
It advised him that the evidence received was insufficient to establish that he was totally disabled
from work during the claimed period. OWCP noted that appellant’s treating physician had
released appellant to work with restrictions on October 23, 2017. It afforded appellant 30 days to
submit the requested information.
According to telephone call memorandums (CA-110 notes) dated December 21, 2017 and
January 17, 2018, appellant informed OWCP that he should be working in a modified capacity,
but his supervisor took him off work. The claims examiner advised him that he would not be
entitled to wage-loss compensation based on the October 27, 2017 job offer. Appellant also
4
Appellant did not claim wage-loss compensation for the following dates: eight hours of LWOP on October 30
and November 16, 2017 and eight hours of sick leave on November 2, 13, and 15, 2017. He also indicated that on
October 31, 2017 he worked for approximately 40 minutes and used sick leave for the remaining time of the day.

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informed OWCP that he had undergone eye surgery. He also related that he was receiving social
security disability benefits.
In a January 13, 2018 OWCP field nurse report, P.S., an OWCP field nurse, indicated that
according to appellant he returned to work for the period from October 25 through 27, 2017 with
Dr. Murtaza’s work restrictions, but could not continue working due to severe left hip and low
back pain. Appellant related that his supervisor told him to “clock out” so he went home. He
noted that when he returned to work on October 31, 2017 with his revised work restrictions from
Dr. Murtaza his supervisor again told him that he could not do anything with these restrictions and
to “clock out” so he went home. The field nurse also related that appellant was taken off work for
an unrelated eye surgery.
Appellant filed additional Form CA-7s, claiming varying hours of disability compensation
daily through February 16, 2018. In Form CA-7 dated February 13 and 20, 2018, he indicated “no
work available” as the reason for using leave.
By decision dated February 26, 2018, OWCP denied appellant’s claims for wage-loss
compensation for the period October 28, 2017 to February 16, 2018. It found that the medical
evidence submitted was insufficient to establish that he was unable to work the October 27, 2017
modified-job position during the claimed period due to his accepted December 7, 2016
employment injury.
Appellant, through counsel, disagreed with the decision and requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was
held on August 16, 2018. Appellant testified that he had not worked since October 2017. He
explained that he had worked for a few days, but on October 31, 2017 his supervisor told him to
go home. Appellant noted that his supervisor had not provided anything in writing.
In disability letters dated November 13, 2017 and March 19, 2018, Dr. Robert J. Barnes, a
Board-certified ophthalmologist, indicated that appellant had right eye surgery approximately
three months prior and subsequently developed a secondary cataract formation, which required
cataract surgery. He reported that appellant’s glaucoma was not related to his work. Dr. Barnes
noted that appellant was unable to return to work after the surgery.
OWCP also received a March 23, 2018 new patient chart note by Dr. Tabasum Amir,
Board-certified in preventive and occupational medicine. Dr. Amir noted examination findings of
limited lumbar spine range of motion, limited hip flexion, abnormal gait, and positive straight leg
raise testing on the left. He diagnosed left side sciatica, lumbar radiculopathy, and lower back
muscle spasms.
By decision dated October 26, 2018, an OWCP hearing representative affirmed the
February 26, 2018 decision. He found that appellant had failed to establish that he was unable to
work his modified-duty position, beginning October 28, 2017, due to the accepted December 7,
2016 employment injury.

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LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.6 For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.7 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.8 The Board will not require OWCP to pay compensation for disability
in the absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow an employee to self-certify his or her
disability and entitlement to compensation.9
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.10 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered such that they exceed the employee’s physical
limitations.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
commencing October 28, 2017, causally related to his accepted December 7, 2016 employment
injury.
The medical evidence received in support of appellant’s claim includes reports by
Dr. Murtaza. In an October 30, 2017 report, Dr. Murtaza noted that he examined appellant for an
“emergency visit” after appellant had returned to work. He reported: “[appellant] states he is
absolutely unable to do the work activities including severe pain.” Dr. Murtaza explained that he
would decrease some of appellant’s work restrictions by half of the number of hours. He
5

Supra note 2.

6
See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
Nathaniel Milton, 37 ECAB 712 (1986).
7

See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

8

Amelia S. Jefferson, id.; William A. Archer, 55 ECAB 674 (2004).

9
See S.G., docket No. 18-1076 (issued April 11, 2019); William A. Archer, id.; Fereidoon Kharabi, 52 ECAB
291 (2001).
10

20 C.F.R. § 10.5(x).

11

Id.

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completed a Form CA-17 and noted that appellant could work full time with restrictions. The
Board finds, however, that Dr. Murtaza has not explained how these updated restrictions were
related to appellant’s accepted December 7, 2016 employment injury such that he was suddenly
unable to perform his modified-duty position.12 Dr. Murtaza has not provided an explanation or
refer to objective evidence to support his opinion that appellant’s work restrictions should be
updated to limit twisting to two hours, standing to four hours, and driving to four hours. On the
contrary, he merely references appellant’s complaints of too much pain. When a physician’s
statements regarding an employee’s ability to work consist only of repetition of the employee’s
complaints that he or she hurt too much to work, without objective findings of disability being
shown, the physician has not presented a medical opinion on the issue of disability.13
Dr. Murtaza’s opinion is, therefore, of diminished probative value and is insufficient to establish
appellant’s claim.
Appellant was also treated by Dr. Amir. In a March 23, 2018 chart note, Dr. Amir noted
examination findings of limited lumbar spine range of motion, limited hip flexion, abnormal gait,
and positive straight leg raise testing on the left. He diagnosed left-side sciatica, lumbar
radiculopathy, and lower back muscle spasms. Dr. Amir did not, however, provide an opinion or
specify that appellant could not work his modified-duty position due to his December 7, 2016
employment injury. Accordingly, his report fails to establish disability from work during the
claimed time period due to appellant’s accepted injury.14
Similarly, in Dr. Barnes’s November 13, 2017 and March 19, 2018 reports, he did not
attribute appellant’s inability to work to his accepted employment injury, but to his nonworkrelated eye condition. As he failed to link appellant’s disability to the accepted December 7, 2016
employment injury, his reports are insufficient to establish appellant’s claim.15
On appeal, counsel contends that appellant has established a recurrence of disability.
Appellant has alleged that during the claimed period of disability there was no work available
within his restrictions. He asserts that he would work in a modified capacity, but his supervisor
took him off work. It is appellant’s burden of proof to establish that modified-duty position was,
in fact, withdrawn.16 In this case, however, he did not provide any factual evidence to support his
allegation that his October 27, 2017 modified-duty position was withdrawn. On the contrary,
OWCP asked the employing establishment in a December 5, 2017 e-mail if the October 27, 2017
modified-job offer was still available to appellant, and the employing establishment responded that
it was still available. The Board finds, therefore, that the factual evidence of record fails to
demonstrate that his modified-duty position was withdrawn.17

12

See S.H., Docket No. 18-1398 (issued March 12, 2019); S.B., Docket No. 13-1162 (issued December 12, 2013).

13

P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

14

See M.C., Docket No. 16-1238 (issued January 26, 2017).

15

R.A., Docket No. 14-1327 (issued October 10, 2014).

16

L.M., Docket No. 17-0159 (issued September 27, 2017); J.F., 58 ECAB 124 (2006).

17

See C.C., Docket No. 18-0719 (issued November 9, 2018).

6

The Board finds that the medical evidence submitted is insufficient to establish that
appellant was unable to work his modified-duty position commencing October 28, 2017 as a result
of his December 7, 2016 employment injury.
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 met his burden of proof to establish total disability
commencing October 28, 2017, causally related to his accepted December 7, 2016 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 8, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-1498
Issued: November 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 28, 2008 appellant filed a timely appeal from an April 3, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration as untimely and failing to establish clear evidence of error. Because more than
one year has elapsed since the last merit decision dated December 5, 2006, the Board lacks
jurisdiction to review the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits of his claim on the grounds that it was not timely filed and did not establish clear
evidence of error.
FACTUAL HISTORY
On March 30, 2005 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim alleging that he had developed lumbar disc disease as a result of employment
activities. On June 7, 2005 the Office accepted the claim for sprain/strain of the lumbar region.

It later accepted an aggravation of degenerative disc disease. On September 14, 2005 the Office
accepted appellant’s April 19, 2005 recurrence claim and he was placed on the periodic rolls.
Appellant’s treating physicians, Dr. Ronald B. Neal, a Board-certified urologist, and
Dr. Najmeddin Beyranvand, a Board-certified anesthesiologist specializing in pain medicine,
opined that he was totally disabled due to his accepted employment injury. In a January 10,
2006 second opinion report, Dr. Edward Forman, a Board-certified osteopath, specializing in
orthopedic surgery, found that appellant had no residuals related to the accepted injury. He
opined that appellant was able to return to his date-of-injury position. Dr. Forman stated that
appellant’s preexisting degenerative disc disease of the lumbar spine was exacerbated by his
occupational injury, but that the condition should have resolved within three to four months.
In order to resolve the conflict in medical opinion between appellant’s treating physicians
and the Office’s second opinion physician, the Office referred appellant to Dr. Jaroslaw B.
Dzwinyk, a Board-certified orthopedic surgeon, who was asked to address whether appellant
continued to have residuals of his accepted condition and, if so, whether he remained disabled.
In an April 3, 2006 report, Dr. Dzwinyk stated that appellant had sustained a temporary
aggravation of a preexisting degenerative lumbar disc disease, which should have resolved
within three months. Appellant’s present symptoms were not related to the accepted injury, but
rather to the preexisting condition. Dr. Dzwinyk opined that appellant had no residuals from the
accepted condition.
In a September 7, 2006 notice, the Office informed appellant that it proposed to terminate
his wage-loss and medical benefits based upon Dr. Dzwinyk’s opinion. Appellant was given
30 days to submit evidence or argument.
By decision dated December 5, 2005, the Office terminated appellant’s medical and
compensation benefits, on the grounds that he no longer had any disability or residuals due to his
work-related condition.
The record contains an April 21, 2006 report from Dr. Beyranvard, reflecting that he
performed a lumbar epidural steroid injection on that date. On May 5, 2006 he diagnosed low
pain and foot numbness and lumbar degenerative disc disease at L4-5 and L5-S1. On
January 14, 2008 Dr. Dzwinyk opined that appellant had a 50 percent impairment of the lower
extremity due to pain, sensory deficit and decreased strength.
On March 5, 2008 appellant requested reconsideration. He submitted a January 4, 2008
work capacity evaluation prepared by Michael Hornbuckle, a physical therapist, who opined that
appellant was able to lift up to 23 pounds and met the requirements of light PDC strength
capabilities, with some medium PDC capabilities for occasional lifting. Appellant also provided
a January 14, 2008 report from Dr. Gerard Dysico, a treating physician, who stated that, based on
the January 4, 2008 work capacity evaluation, appellant was able to lift only 50 percent of the
weight required by his job description.
By decision dated April 3, 2008, the Office denied appellant’s request for
reconsideration, on the grounds that it was untimely and failed to establish clear evidence of
error.

2

LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.2
When an application for review is not timely filed, the Office must nevertheless
undertake a limited review to determine whether the application establishes “clear evidence of
error.”3 Office regulations and procedure provide that the Office will reopen a claimant’s case
for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows “clear evidence of error” on the part
of the Office.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.5
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed,
well-rationalized medical report which, if submitted prior to the Office’s denial, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error
and would not require a review of the case on the director’s own motion.6
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. Office procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.7 It issued its last
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

See id. at § 10.607(b); D.D., 58 ECAB ___ (Docket No. 06-1148, November 30, 2006); Charles J. Prudencio,
41 ECAB 499, 501-02 (1990).
4

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d)
(January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the [Office] made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
5

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman,
55 ECAB 143 (2003).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

7

20 C.F.R. § 10.607(a).

3

merit decision in this case on December 5, 2006. As appellant’s March 5, 2008 request for
reconsideration was submitted more than one year after the last merit decision of record, it was
untimely. Consequently, he must demonstrate clear evidence of error by the Office in denying
his claim for compensation.8
Medical evidence submitted subsequent to the December 5, 2006 decision consists of
reports from Dr. Beyranvand dated April 21, 2006 to January 14, 2008; a January 4, 2008 work
capacity evaluation; and a January 14, 2008 report from Dr. Dysico. None of these reports are
sufficient to establish clear evidence of error on the part of the Office.
Dr. Beyranvand performed and lumbar epidural steroid injection and diagnosed low pain
and foot numbness with lumbar degenerative disc disease at L4-5 and L5-S1. On January 14,
2008 he opined that appellant had a 50 percent permanent impairment of the lower extremity due
to pain, sensory deficit and decreased strength. Dr. Beyranvand did not address whether
appellant was disable or express any opinion as to whether there was a causal relationship
between his current condition and the accepted injury. Therefore, his reports are not sufficient to
establish error on the part of the Office.
Dr. Dysico stated that, based on a January 4, 2008 work capacity evaluation, appellant
was able to lift only 50 percent of the weight required by his job description. The January 4,
2008 work capacity evaluation reflected that appellant was able to lift up to 23 pounds and met
the requirements of light PDC strength capabilities, with some medium PDC capabilities for
occasional lifting. Neither Dr. Dysico’s report nor the work capacity evaluation contains an
opinion on the relevant issue of whether appellant was disabled or had residuals from his
accepted condition.9 Therefore, the reports do not establish clear evidence of error on the part of
the Office.
The term “clear evidence of error” is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.10 The evidence must prima facie shift the weight of the evidence in
favor of appellant.11 None of the medical reports submitted manifests on its face that the Office
committed an error in terminating appellant’s compensation and medical benefits effective
December 5, 2006. Thus, the reports are insufficient to establish clear evidence of error.

8

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

9

Where the Office meets its burden of proof in justifying termination of compensation benefits, the burden is on
the employee to establish that any subsequent disability is causally related to an accepted employment injury.
Darlene R. Kennedy, 57 ECAB 414, 416 (2006); see Wentworth M. Murray, 7 ECAB 570, 572 (1955).
10

Joseph R. Santos, 57 ECAB 554 (2006).

11

See Darletha Coleman, supra note 5.

4

As the evidence submitted by appellant is insufficient to prima facie shift the weight of
evidence in favor of him and raise a substantial question as to the correctness of the Office’s last
merit decision, he has not established clear evidence of error.12
CONCLUSION
The Board finds that the Office properly determined that appellant’s request for
reconsideration dated March 5, 2008 was untimely filed and did not demonstrate clear evidence
of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2008 is affirmed.
Issued: November 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Veletta C. Coleman, 48 ECAB 367 (1997).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Flushing, NY, Employer
__________________________________________

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

Docket No. 09-1460
Issued: April 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated December 1, 2008, which found that he received an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the overpayment of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $2,556.00; (2) whether the Office properly denied waiver of
recovery; and (3) whether the Office properly determined that it would recover the overpayment
by deducting $100.00 from his continuing compensation payments.
FACTUAL HISTORY
On January 14, 2003 appellant, then a 50-year-old transportation security screener, was
loading baggage when he sustained an injury to his left shoulder in the performance of duty. The

Office accepted his claim for cervical spine spondylitis.
February 8, 2003 and was placed on the periodic rolls.

Appellant stopped work on

On July 2, 2008 appellant completed his EN1032 form and informed the Office that he
had been employed as a tutor at John Jay College at the rate of $15.00 an hour since
February 2008. He noted that he worked approximately 12 hours per week.
In a letter dated July 7, 2008, directed to John Jay College, the Office requested
information about appellant’s employment. In a response received on July 21, 2008, the college
payroll coordinator advised the Office that appellant was employed as a college assistant for 14.5
hours per week at a rate of $15.00 an hour since March 3, 2008. This response was “certified by
the Payroll Department.”
On July 24, 2008 the Office notified appellant that he was reemployed as a college
assistant with wages of $15.00 dollars an hour at 14.5 hours per week. It noted that the
employment was effective March 3, 2008. The Office advised appellant that it was reducing his
compensation effective July 6, 2008 based on his actual earnings in the position.
On October 27, 2008 the Office made a preliminary finding that an overpayment of
$2,556.00 arose because appellant was in receipt of benefits for total disability for the period
March 3 through July 5, 2008, when he received earnings from employment with John Jay
College. It found he was without fault in creating the overpayment. Appellant was informed of
his review options if he wished to challenge the overpayment or to request waiver of recovery of
the overpayment. If he wished a waiver of the overpayment, he was specifically directed to
submit, within 30 days, financial information by completing an overpayment recovery
questionnaire. In an accompanying memorandum, the Office noted that the evidence showed
that appellant was employed by John Jay College at the rate of $15.00 an hour as of
March 3, 2008. It reduced his compensation using the Shadrick formula1 to reflect the earnings.
The Office determined that, on the date of injury, January 14, 2003, appellant was earning
$572.66 per week. The current pay rate for the same grade and step in that position was $672.19.
The Office determined that appellant earned $217.50 per week as a tutor (14.5 hours per week
multiplied by $15.00 an hour). It explained that, for the period March 3 through July 5, 2008, he
was paid $7,123.44 in net compensation. However, appellant should have received $4,567.44.
The Office subtracted this from the amount he received and determined that a $2,556.00
overpayment had occurred. No response was received to the preliminary notice.
In a decision dated December 1, 2008, the Office finalized its preliminary findings on the
fact and amount of overpayment. It found that appellant was without fault. The Office denied
waiver of recovery of the overpayment noting that he had not submitted financial information. It
determined that $100.00 would be withheld from appellant’s continuing compensation beginning
November 23, 2008 and advised that the overpayment would be absorbed by approximately
December 19, 2010.

1

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

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) provides that the United States shall pay compensation for the disability
or death of an employee resulting from personal injury sustained while in the performance of
duty.2 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.3 A claimant, however, is not entitled to
receive temporary total disability and actual earnings for the same period. Office procedures
provide that an overpayment in compensation is created when a claimant returns to work but
continues to receive wage-loss compensation.4
If the claimant has been receiving compensation on the periodic rolls, the claims
examiner should delete the payment record from the periodic rolls as soon as possible. If the
deletion can be made effective with the current roll period, any additional compensation due
should be paid on the daily rolls. Any compensation paid for total wage loss subsequent to the
date of return to work should be declared an overpayment.5 If the claimant is entitled to
compensation for partial wage loss after returning to work, the claims examiner should compute
entitlement using the Shadrick formula and authorize compensation on a 28-day payment cycle.6
ANALYSIS -- ISSUE 1
The record establishes that an overpayment occurred because appellant was employed on
a part-time basis from March 3 to July 5, 2008, while he remained on the periodic rolls and
received compensation for total disability. Once the Office learned that appellant had actual
earnings, it advised him that he was paid at an incorrect rate and that an overpayment was
created.
As noted, an overpayment of compensation is created when a claimant returns to work
but continues to receive wage-loss compensation. If a reduction of benefits based upon actual
earnings is not accompanied by a determination that the actual earnings fairly and reasonably
represent wage-earning capacity, an informal reduction of benefits utilizing the Shadrick formula
is proper rather than a formal loss of wage-earning capacity determination.7 The Office did not
make a finding that appellant’s reemployment as a part-time college assistant fairly and
reasonably represented his wage-earning capacity and thus it properly provided an informal
determination of the amount owed based on his actual earnings using the Shadrick formula.8 The
2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (May 2004). L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.814.7(b)(1) (July 1997).

6

Id. at Chapter 2.814.7(b)(2) (July 1997). See 20 C.F.R. § 10.403; Shadrick supra note 1.

7

See L.S., supra note 4. See Shadrick, supra note 1.

8

See id.

3

Board finds that the Office properly calculated the amount of compensation owed under this
formula as well as the resulting overpayment of compensation. The Office determined that on
the date of injury appellant had a weekly pay of $572.66, the current weekly pay rate for the
position was $672.19 and his weekly actual earnings as a tutor were $217.50. It applied the
formula to find that he should have been paid net compensation of $4,567.44 for the period in
question. The Office noted that appellant received $7,123.44 in net compensation for this period.
It subtracted $4,567.44 from $7,123.44, leaving the difference of $2,556.00 as an overpayment
of compensation.
Although appellant, on appeal, asserts that he worked a lesser number of weekly hours,
the evidence from the college where appellant worked supports the Office’s finding that he
worked 14.5 hours per week.
The Board finds that the Office properly found that appellant received a $2,556.00
overpayment of compensation from March 3 to July 5, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
[the Act] or would be against equity and good conscience.”9 Thus, a finding that appellant was
without fault does not automatically result in waiver of the overpayment. The Office must then
exercise its discretion to determine whether recovery of the overpayment would defeat the
purpose of the Act or would be against equity and good conscience.10
Section 10.436 of the implementing federal regulations11 provide that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to defeat the purpose of the Act.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.12

9

5 U.S.C. § 8129(b).

10

See L.S., supra note 4.

11

20 C.F.R. § 10.436.

12

Id. at § 10.437.

4

The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary. Failure to submit the requested information within 30 days of
the request shall result in denial of waiver and no further request for waiver shall be considered
until the requested information is furnished.13
ANALYSIS -- ISSUE 2
The Office, in its preliminary determination to appellant of the existence of the
overpayment, informed him that he needed to explain his reasons for seeking a waiver, complete
the recovery questionnaire form and submit financial documents to support his claimed income
and expenses. It advised him to submit his response within 30 days.
The overpayment recovery questionnaire is designed to obtain the financial information
to determine whether adjustment or recovery would defeat the purpose of the Act. Appellant did
not respond to the preliminary determination or return the overpayment recovery questionnaire
provided by the Office and did not otherwise submit financial evidence or supporting
documentation to establish that recovery of the overpayment would defeat the purpose of the
Act. Further, he did not submit evidence establishing that recovery of the overpayment would be
against equity and good conscience because, in reliance on the overpaid compensation, he
relinquished a valuable right or changed his position for the worse. Although appellant is
without fault in the creation of the overpayment, he nevertheless bears responsibility for
providing the financial information necessary to support a request to waive recovery of the
overpayment. Section 10.438 of the regulations state that a claimant who received an
overpayment is responsible for providing information about income, expenses and assets to the
Office so that it may determine whether recovery of the overpayment would defeat the purpose
of the Act or be against equity and good conscience.14 Failure to submit the information, which
will also be used to determine a repayment schedule if necessary, within 30 days of a request
from the Office, will result in a denial of a waiver of recovery of the overpayment and no further
requests for waiver will be considered until the information is submitted.15
Appellant submitted no evidence in this case to establish that recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience. The
Board finds that the Office did not abuse its discretion in refusing to waive recovery of the
overpayment.

13

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

14

20 C.F.R. § 10.438(a).

15

Id. at § 10.438(b); Robert B. Hutchins, 52 ECAB 344 (2001).

5

LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to the Office the amount of the overpayment as soon as the
error is discovered or his or her attention is called to same. If no refund is made, the Office 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.16
ANALYSIS -- ISSUE 3
The Board finds that the Office properly required repayment by withholding the
overpayment amount of $100.00 from appellant’s compensation checks until the overpayment
was recouped. On October 27, 2008 the Office advised appellant of his right to request a hearing
or telephone conference regarding its preliminary determination that an overpayment had
occurred and that, if he wished a waiver of recovery of the overpayment, he was specifically
directed to submit financial information. As noted above, appellant did not respond or submit
any financial documentation. The Board finds that the Office properly considered his
circumstances and imposed a repayment schedule of $100.00 from his compensation every 28
days. The Office acted properly in determining that the overpayment would be recovered by
deducting this amount from appellant’s continuing compensation.
On appeal, appellant indicated that he was not aware of the overpayment of compensation
until the evening of December 22, 2008. He noted that he reported the disruption in his mail
service to the post office and to the Office. The Board notes that there is no evidence to rebut the
assumption that the documents were not timely received. Under the mailbox rule, a letter
properly addressed and mailed in the due course of business, such as in the course of the Office’s
daily activities, is presumed to have arrived at the mailing address in due course.17 Appellant
also submitted additional evidence on appeal. However, the Board has no jurisdiction to review
this evidence for the first time on appeal.18
CONCLUSION
The Board finds that the Office properly determined that appellant received a $2,556.00
overpayment of compensation that occurred for the period March 3 to July 5, 2008. The Office
properly denied waiver of recovery and set the rate of recovery in the amount of $100.00 from
appellant’s continuing compensation.

16

20 C.F.R. § 10.441(a).

17

See James A. Gray, 54 ECAB 277 (2002); Charles R. Hibbs, 43 ECAB 699 (1992).

18

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

6

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, CONCORD STATION, )
Knoxville, TN, Employer
)
__________________________________________ )
C.C., Appellant

Appearances:
Ronald L. Coile, for the appellant
Office of Solicitor, for the Director

Docket No. 13-680
Issued: July 2, 2013

Case Submitted on the Record

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

JURISDICTION
On January 25, 2013 appellant, through her representative, filed a timely appeal from a
July 30, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
benefits effective December 18, 2011; and (2) whether it properly terminated her authorization
for medical benefits.

1

Under the Board’s Rules of Procedure, if using the date the appeal was received by the Clerk of the Board
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is January 25, 2013, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2003 appellant, then a 46-year-old rural mail carrier, filed a traumatic injury
claim alleging that on April 30, 2003 she sustained low back pain, bilateral upper leg pain and
bilateral lower leg numbness in the performance of duty. OWCP accepted the claim for an
aggravation of spondylolisthesis. Appellant experienced intermittent periods of total disability.
On July 30, 2009 the employing establishment withdrew appellant’s limited-duty
employment due to safety concerns resulting from her use of opiates. OWCP paid compensation
for total disability.
In a work restriction evaluation dated January 18, 2010, Dr. Frank McNiel, an attending
physician specializing in family medicine, found that appellant was unable to work.
On June 28, 2010 OWCP referred appellant to Dr. Sidney Wallace, a Board-certified
orthopedic surgeon, for a second opinion examination.3 In a report dated August 11, 2010,
Dr. Wallace diagnosed spondylolisthesis aggravated by the accepted work injury, lumbar sprain,
an abdominal wall hernia and an umbilical hernia. He found that appellant’s spondylolisthesis
had “returned to the point it was prior to the aggravation.” In a supplemental report dated
September 30, 2010, Dr. Wallace advised that the aggravation of her spondylolisthesis had
ceased.
In a report dated March 15, 2011, Dr. McNiel opined that appellant remained partially
disabled due to her April 2003 employment injury. He advised that the work-related aggravation
of her preexisting condition continued and described imaging findings of facet joint osteoarthritis
and anterior listhesis at L5-S1 with pars defect. Dr. McNiel noted that appellant was working
with restrictions when the employing establishment removed her from employment due to her
prescribed pain medications.
On May 10, 2011 OWCP determined that a conflict existed between Dr. McNiel and
Dr. Wallace regarding whether appellant’s employment-related aggravation of spondylolisthesis
had ceased. It referred her to Dr. William L. Johnson, a Board-certified orthopedic surgeon, for
an impartial medical examination.4
In a report dated June 10, 2011, Dr. Johnson reviewed appellant’s history of injury and
medical reports. On examination he measured symmetrical reflexes, no atrophy and normal
strength and range of motion of the lower extremities. Dr. Johnson found tenderness to palpation
of the lumbar spine with a negative straight leg raise and positive pedal pulses. He indicated that
diagnostic studies revealed grade 1 spondylolisthesis and pars defects. Dr. Johnson diagnosed
L5-S1 spondylolisthesis, lumbar sprain, an abdominal wall hernia, an umbilical hernia and

3

On January 19, 2010 appellant’s attorney requested that OWCP expand acceptance of the claim to include
emotional problems.
4

On June 1, 2011 Dr. McNiel questioned the need for appellant to see Dr. Johnson and asserted that orthopedic
surgeons did not often agree with pain management physicians.

2

degenerative spondylolisthesis at L4-5. He noted that OWCP had also accepted lumbar sprain
and an abdominal wall hernia which had resolved.5 Dr. Johnson concluded:
“I do feel the aggravation of the spondylolisthesis has resolved. [Appellant] had a
preexisting spondylolisthesis which became symptomatic with her lifting injury,
and she has had symptoms slowly progressive since that time; however, as
defined by [OWCP], the temporary aggravation is considered ceased when the
patient returns to a baseline of pathology which is due only to the underlying
progressive disorder. [Appellant] has obviously worsened over time, but I feel
this is likely due to the underlying disorder of a spondylolisthesis compounded by
the development of an additional spondylolisthesis at the next proximal level
which was not present previously. This is also compounded by contributing
factors such as her obesity, deconditioning, narcotic dependence and perhaps even
psoriatic arthritis. This is likely the natural course of this progressive disorder,
and would have occurred in the absence of the index injury.”
Dr. Johnson concluded that appellant’s temporary aggravation had resolved and that her
physical limitations were due to “her preexisting spondylolisthesis and natural progression over
time including development of an additional area of spondylolisthesis more proximally.” He
found that she could perform sedentary employment.
On July 20, 2011 OWCP advised appellant of its proposed termination of her
compensation and authorization for medical benefits.
On August 29, 2011 appellant’s representative maintained that the majority of the
physicians in her area would not accept patients who worked for the employing establishment.
He asserted that OWCP disregarded the opinions of her attending physicians. The representative
contended that OWCP did not advise Dr. Wallace or Dr. Johnson of appellant’s prior right
shoulder and lumbar injury, assigned file number xxxxxx835. He argued that she did not have
preexisting spondylolisthesis but instead her condition resulted from a 2002 work injury.
By decision dated November 22, 2011, OWCP terminated appellant’s compensation
effective December 18, 2011. It found that Dr. Johnson’s opinion represented the weight of the
evidence and established that she had no further employment-related condition or disability.
OWCP noted that it had accepted lumbar sprain due to a February 4, 2002 employment injury. It
further found that a magnetic resonance imaging (MRI) scan study performed on October 30,
2002 showed spondylolisthesis at L5-S1 that predated her April 30, 2003 work injury.
On December 10, 2011 appellant, through her representative, requested an oral hearing
before an OWCP hearing representative. At the telephone hearing, held on April 19, 2012,
appellant’s representative argued that the statement of accepted facts failed to include her 2002
work injury. He asserted that her preexisting condition was work related. The hearing
representative noted that OWCP had not accepted spondylolisthesis in the prior 2002 claim but

5

OWCP accepted only an aggravation of spondyloliesthesis due to appellant’s work injury. In the statement of
accepted facts it listed lumbar sprain, an abdominal wall hernia and an umbilical hernia as other conditions.

3

instead lumbar strain and a right shoulder strain. Appellant’s representative advised that she had
filed an emotional condition claim.6
In a decision dated July 30, 2012, OWCP’s hearing representative affirmed the
November 22, 2011 decision. She found that Dr. Johnson’s report constituted the weight of the
evidence and established that appellant had no disability or need for medical treatment due to her
April 30, 2003 work injury.
On appeal appellant’s representative argues that her condition began when she sustained
a prior injury to her back under file number xxxxxx835. He also notes that she was in a motor
vehicle accident in 1997 on the way home from work but she did not file a claim because her
supervisor informed her that because she was not driving the car she used on her route it was not
work related.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.7 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.12
6

In an undated report received by OWCP on August 3, 2011, Dr. Glenn R. Peterson, a Board-certified
psychiatrist, diagnosed major depression, generalized anxiety and chronic pain. He attributed the conditions to
“injuries at work, causing chronic pain and worsened by emotional abuse from supervisors at work.”
7

Elaine Sneed, 56 ECAB 373 (2005).

8

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

9

Gewin C. Hawkins, 52 ECAB 242 (2001).

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

4

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained an aggravation of spondylolisthesis due to an
April 30, 2003 employment injury. Appellant worked limited-duty employment until July 2009,
when the employing establishment withdrew her modified work due to safety concerns from her
opiate use. OWCP paid her compensation for total disability.
OWCP determined that a conflict arose between Dr. Wallace, an OWCP referral
physician, and Dr. McNiel, appellant’s attending physician, regarding whether she had any
continuing employment-related aggravation of her preexisting spondylolisthesis. It referred her
to Dr. Johnson for an impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.13 The Board finds that the opinion of Dr. Johnson, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history. Dr. Johnson accurately summarized the
relevant medical evidence, provided detailed findings on examination and reached conclusions
about appellant’s condition which comported with his findings.14 In a report dated June 10,
2011, he reviewed the medical evidence of record, including the results of diagnostic studies. On
examination, Dr. Johnson found a negative straight leg raise, tenderness of the lumbar spine and
positive pedal pulses. He diagnosed grade 1 spondylolisthesis and pars defect by diagnostic
study. Dr. Johnson opined that appellant’s work-related aggravation of spondylolisthesis had
ceased. He explained that, while her condition had worsened, it was due to the natural
progression of the preexisting spondylolisthesis rather than the work-related temporary
aggravation. Dr. Johnson further attributed appellant’s physical limitations to preexisting
spondylolisthesis and its natural progression rather than her employment injury. As his report is
detailed, well rationalized and based on a proper factual background, his opinion is entitled to the
special weight accorded an impartial medical examiner.15 OWCP thus met its burden of proof to
terminate appellant’s compensation benefits for the accepted conditions of an aggravation of
spondylolisthesis.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.16 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.17
13

J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

14

Manuel Gill, 52 ECAB 282 (2001).

15

See J.M., supra note 13; Kathryn E. Demarsh, 56 ECAB 677 (2005).

16

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

17

Id.

5

ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Johnson, the impartial medical examiner, who found that appellant had no
residuals of her accepted condition. Dr. Johnson explained that the temporary aggravation of her
spondylolisthesis had ceased and that her current condition resulted from a natural progression of
the condition rather than the employment-related aggravation. As his opinion is detailed and
well rationalized, it is entitled to the special weight accorded an impartial medical examiner and
establishes that appellant has no further residuals of her accepted employment injury.
On appeal appellant’s representative argues that her condition began in February 2002.
He further asserts that she was in a motor vehicle accident in 1997 on the way home from work
but her supervisor told her that she could not file a claim. The issue, however, is whether
appellant has any further disability or need for medical treatment as a result of her April 30, 2003
employment injury. As discussed, Dr. Johnson’s opinion is rationalized and based on a proper
history and thus represents the special weight of the evidence.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
authorization for medical benefits effective December 18, 2011 on the grounds that she had no
further disability causally related to her April 30, 2003 employment injury

6

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

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

Docket No. 21-0253
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On December 10, 2020 appellant filed a timely appeal from a November 16, 2020 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 $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was
without fault, because of an underwithholding of optional life insurance (OLI) premiums from his
FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2016 appellant, then a 62-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured
his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP
accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and
later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal
stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental
rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017.
In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation
benefits. It advised him that it was making deductions for health insurance benefits, basic life
insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments
every 28 days.
On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested
OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five
with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017.
OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all
of his Option B (additional) life insurance at the value as of age 65, to continue for life.
In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,819.00 because OLI
and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA
compensation for the period October 14, 2017 through February 29, 2020. It provided an
overpayment calculation. OWCP further advised appellant of its preliminary determination that
he was not at fault in the creation of the overpayment and requested that he complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, it notified him that within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant
informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age
65. However, deductions should have continued to have been made as of 2019 when he turned 65
years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.
In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation
history records showed that appellant had paid OLI premiums up to May 25, 2019 and that
deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the
overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As
appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment
was $5,022.00.

2

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020,
informed appellant that he had received an overpayment of compensation in the amount of
$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on
May 12, 2019 from his FECA compensation for the period May 26, 2019 through
February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant
was not at fault in the creation of the overpayment and requested that he complete an overpayment
action request form containing appeal rights and a Form OWCP-20 and submit supporting
documentation including copies of tax returns, bank account statements, bills and cancelled
checks, pay slips, and other records which supported the income and expenses listed. It again
notified him that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to
submit the requested information within 30 days would result in a denial of waiver of recovery of
the overpayment. However, no financial information was submitted by appellant.
On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held
on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver
of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as
OWCP had vacated the initial preliminary overpayment determination, admitted error, but had
thereafter issued a new preliminary overpayment determination. He also indicated that he had
alerted OWCP that premiums were not being withheld properly from his FECA compensation.
By decision dated November 16, 2020, an OWCP hearing representative finalized the
May 11, 2020 preliminary overpayment determination that appellant had received an overpayment
of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29,
2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he
reached age 65 from his compensation payments. He found that issuance of a corrected decision,
reducing the amount of the overpayment, did not constitute double jeopardy. The hearing
representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per
$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded
final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The
hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and
multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the May 11, 2020
preliminary overpayment determination, as requested. Because OWCP did not have the necessary
financial information to determine an equitable monthly repayment amount, the hearing
representative ordered recovery of the overpayment in full within 30 days. Appellant was directed
to contact OWCP if he wished to enter into a monthly repayment agreement.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options. 2 The coverage for BLI is effective unless
waived,3 and premiums for basic and optional life coverage are withheld from the employee’s
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

3

pay.4 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to
an employee who retired or began receiving compensation on or before December 31, 1989;6
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing n o life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium). 8 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.9
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty. 10 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled. 11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued
March 26, 2018).
8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019); James J.
Conway, Docket No. 04-2047 (issued May 20, 2005).
9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10

Id. at § 8102(a).

11

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of OLI premiums from his FECA compensation.
OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his
Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid
OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that
deductions for these premiums began on March 1, 2020, but that it did not deduct the proper
amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period
May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment
as $5,022.00. The record contains compensation payment records, as well as an overpayment
worksheet explaining the overpayment calculation and how the overpayment occurred. While in
compensationer status, appellant remained responsible for all insurance benefits, including the
premiums for OLI at whatever option he or she had selected. 12 Moreover, as noted, when an
underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment
of compensation because OWCP must pay the full premium to OPM upon discovery of the error. 13
The Board thus finds that OWCP properly determined the fact and amount of the
overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019
through February 29, 2020, appellant received an overpayment of $5,022.00 during this period. 14
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
recovery would defeat the purpose of FECA or would be against equity and good conscience. 15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an
12

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

13

5 U.S.C. § 8102.

14

See J.H., supra note 7; I.J., supra note 8; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No.
19-0451 (issued August 7, 2019).
15

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).
16

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 6.400.4a(2) (September 2020).

5

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. 17
OWCP’s 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. 18 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. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 20 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. 21 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.22
In its preliminary overpayment determination dated May 11, 2020, OWCP explained the
importance of providing the completed Form OWCP-20 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 appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.23

17

Id. at § 10.437(a)(b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

21

20 C.F.R. § 10.436.

22

Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
23

J.H., supra note 7; D.H., supra note 14.

6

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of life insurance premiums. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

24

Id.

7