United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, SPRINGFIELD BULK
MAIL CENTER, Springfield, MA, Employer
__________________________________________

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

Docket No. 08-1267
Issued: April 16, 2009

Case Submitted on the Record

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

JURISDICTION
On April 1, 2008 appellant filed a timely appeal of a January 28, 2008 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative, finding an overpayment
in the amount of $75,934.02 for which he was at fault and directing recovery in full. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of compensation in the amount of $75,934.02 based on his forfeiture of
compensation for the period November 10, 2003 to October 11, 2005; and (2) whether the Office
properly determined that appellant was at fault in the creation of the overpayment, thereby,
precluding waiver of the recovery.
FACTUAL HISTORY
On February 5, 1995 appellant, then a 31-year-old parcel sorting machine clerk, filed a
traumatic injury claim alleging that on February 3, 1995 he sustained a lumbar strain while

performing his work duties. On August 23, 1996 the Office accepted his claim for a herniated
disc at L4-5 and authorized surgery which was performed on August 22, 1996 by Dr. Augusto G.
Asinas, an attending neurosurgeon.
Appellant returned to limited-duty work on
October 14, 1998. By letter dated June 7, 1999, the Office accepted that he sustained a
recurrence of disability on January 2, 1999.
Appellant underwent lumbar surgery on
January 13, 2000. The Office paid compensation for temporary total disability.
On February 8, 2003, February 10, 2004, February 10 and October 11, 2005 appellant
completed and signed EN1032 forms reporting that he had no employment or self-employment
during the past 15 months. On the October 11, 2005 Form EN1032 he stated that he volunteered
as a softball umpire on an emergency basis. Appellant related that this work fell within his
restrictions.
In a May 3, 2006 investigative report, Joel P. Barry, a special agent with the employing
establishment’s office of inspector general, determined that appellant umpired multiple softball
games in 2004 and 2005. In this capacity, he was observed running, bending at the waist,
squatting, throwing, and lifting for hours at a time. Special Agent Barry stated that Dr. Asinas
was not aware that appellant was engaged in such activities. The evidence revealed that
appellant umpired in 2004 and May and June 2005 and video surveillance tapes recorded him
working as an umpire during softball games on July 29 and August 1 and 11, 2005 that each
lasted approximately one hour. Appellant was observed running forwards and backwards, sidestepping, bending at the waist, lifting objects, squatting, throwing bats and balls, and catching
balls with his bare hands. On August 2, 2005 he was observed driving his sport utility vehicle
(SUV) to a liquor store. Appellant left the store carrying a case of beer with no apparent
difficulty. He placed it in his vehicle, drove to a baseball field, and walked to the bleachers.
Appellant sat on the bleachers for over two hours and watched softball games during which he
tossed cans of beer to other spectators and players near the bleachers. On September 14, 2005 he
was observed driving his SUV to a post office where he lifted a large package weighing 13.9
pounds out of the vehicle and carried it inside with no apparent difficulty. Special Agent Barry
noted an accompanying narrative statement of Joseph F. Cuddy, Jr., a head umpire and scheduler
of softball umpires for a sports association, and copies of checks indicated that appellant
received earnings from his work as an umpire from 2004 through 2005. He further related that
an accompanying letter from Dr. Asinas stated that appellant could return to light-duty work
based on his review of the surveillance videotape. The accompanying copy of an April 10, 2006
interview of appellant contained his admission to umpiring softball games.
In a January 30, 2006 statement, Mr. Cuddy related that appellant started working as an
umpire in 2004 and continued through 2005. His 2004 and 2005 umpire lists contained
appellant’s name and telephone number. Appellant was paid $18.00 per game if two umpires
worked together and $36.00 per game if an umpire worked alone due to increased difficulty.
Mr. Cuddy noted that umpires were paid cash for most games and only received checks for
games that were forfeited or played on a military base. He stated that there were no checks
payable to appellant in 2004. The checks payable to appellant revealed that he received $86.00
on June 1, 2005, $54.00 on July 4, 2005, $121.00 on August 1, 2005 and $28.00 on
August 26, 2005.

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In a February 9, 2006 letter, Dr. Asinas reviewed the surveillance video which
demonstrated appellant’s ability to run and umpiring baseball or softball games and was able to
carry a package weighing approximately 14 pounds. He stated that, prior to watching the video,
he was not aware of appellant’s activities. Dr. Asinas opined that appellant was not totally
disabled and could return to light-duty work.
On April 10, 2006 appellant stated that he did not make any money selling sporting
products as he passed on the savings to his customers. He just wanted to get the company name
out there. Appellant acknowledged that he umpired a tripleheader that lasted over three hours
and was involved running, throwing and squatting was recorded on the surveillance video. He
asked whether it was expected that he stay at home and get fat. In response to Dr. Asinas’ lack
of awareness of appellant’s activities, appellant stated that he was permitted to go to a gym. He
compared his umpire activities to squatting when using a toilet. Appellant stated that he made a
minimal amount of money directing softball tournaments. The most he made for a tournament
was approximately $47.00. The most appellant made for all the tournaments he umpired in 2005
was approximately $250.00.
On August 21, 2006 the employing establishment offered appellant a permanent limitedduty position. Appellant accepted the job offer and returned to work on September 2, 2006.
By decision dated March 8, 2007, the Office found that appellant had forfeited his
entitlement to compensation for the period November 8, 2001 through October 11, 2005 based
on his failure to report earnings while receiving compensation for total disability. Also, on
March 8, 2007 it made a preliminary determination that he received an overpayment of
compensation in the amount of $149,630.64 during the stated period. The Office explained that
it had evidence of cancelled checks which it had issued to appellant for that period totaling the
said amount. It found that appellant was at fault in the creation of the overpayment. The Office
found that he knowingly failed to report earnings. Appellant was advised that he could request a
telephone conference, a final decision based on the written evidence only or a hearing within 30
days if he disagreed that the overpayment occurred, with the amount of the overpayment or if he
believed that recovery of the overpayment should be waived. The Office requested that
appellant complete an accompanying overpayment recovery questionnaire (Form OWCP-20) and
submit financial documents within 30 days.
On March 29, 2007 appellant requested a prerecoupment hearing. At the October 17,
2007 hearing, he testified that he was paid $18.00 per game if he worked with another umpire
and $24.00 per game if he worked alone. Appellant further testified that, during the summer of
2004, he was paid approximately $250.00 for working as a softball umpire. However, he lost
money due to his expenses which included a registration fee, uniform, coats and cleats. In 2005
appellant was paid approximately $400.00 for umpiring softball games. After paying a $100.00
registration fee, he earned about $300.00 which he reported on a Form EN1032. During the
winter of 2004, appellant accepted an offer to work as a salesperson for a company that sold
sports apparel and equipment. He sold these items out of his truck at softball tournaments held
in Massachusetts, New Hampshire and Connecticut. Appellant was supposed to receive 30
percent from his sales but never made any money because he deducted 30 percent from the full
price of the merchandise. He did not remember the amount of his total sales. Appellant stated
that he did not make any profits from selling sports apparel and equipment from April to

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September 2005. He did not report his earnings from working as an umpire or salesperson on the
EN1032 forms he completed because he believed that he was to report any profits or sales
commissions he received. Appellant did not consider the sales job as self-employment because
he did not make any money. The hearing representative advised appellant to complete an
OWCP-20 form within 30 days. Appellant did not respond within the allotted time period.
In a November 15, 2007 brief, appellant’s attorney contended that appellant did not
forfeit his compensation under the provision of section 8106(b) of the Federal Employees’
Compensation Act because he did not knowingly fail to report his earnings. Counsel argued that
he did not understand the purpose and intent of the questions regarding his work activities.
By decision dated January 28, 2008, an Office hearing representative modified the
Office’s overpayment determination to reflect that appellant received an overpayment in the
amount of $75,934.02 from November 10, 2003 to October 11, 2005.1 He found that the
February 10, 2005 EN1032 form covered the 15-month period beginning on November 10, 2003
and that the October 11, 2005 EN1032 form covered the 15-month period ending on that date.
He directed appellant to repay the overpaid amount in full as he failed to submit a Form OWCP20 as requested.2
LEGAL PRECEDENT -- ISSUE 1
Pursuant to 20 C.F.R. § 10.525, an employee who is receiving compensation for partial or
total disability will periodically be required to submit a report of earnings from employment or
self-employment, either part time or full time.3 Failure to report income may result in forfeiture
of all benefits paid during the reporting period.4 The regulations further provide that, if an
employee knowingly omits or understates earnings or work activity in making a report, he or she
shall forfeit the right to compensation with respect to any period for which the report was
required.5 Where the right to compensation is forfeited, the Office shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129.6
Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee
who fails to make an affidavit or report when required or knowingly omits or understates any
1

The worksheet of the recalculation of the overpayment revealed that from November 2 to 29, 2003 the Office
paid appellant $2,869.00 over a 28-day period or $102.46 per day. During the period November 10 to 29, 2003 the
Office paid appellant $2,049.20 over a 20-day period. For the period November 30, 2003 to October 15, 2005 the
Office paid appellant $73,884.82. The total amount of compensation the Office paid to appellant for the period
November 10, 2003 to October 15, 2005 was $75,934.02.
2

On appeal, appellant has submitted additional evidence. The Board may not consider evidence for the first time
on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c).
3

20 C.F.R. § 10.525.

4

5 U.S.C. § 8106(b); 20 C.F.R. § 10.525(b).

5

20 C.F.R. § 10.529(a).

6

Id. at § 10.529(b).

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part of his earnings, forfeits his right to compensation with respect to any period for which the
affidavit or report was required.7
It is not enough for the Office to merely establish that a claimant had employment or
earnings. A claimant can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b)(2) if
he knowingly failed to report employment or earnings.8 The term knowingly as defined in the
Office’s implementing regulations, means with knowledge, consciously, willfully or
intentionally.9
The Office has the burden of proof to establish that appellant did, either with knowledge,
consciously, willfully or intentionally, fail to report earnings from self-employment. To meet
this burden of proof, it is required to closely examine appellant’s activities and statements in
reporting employment earnings.10 The Office may meet this burden by appellant’s own
subsequent admission to the Office that he failed to report employment or earnings which he
knew he should report. It may meet this standard without an admission by appellant, if he failed
to fully and truthfully complete the EN1032 forms and the circumstances of the case establish
that he failed to fully and truthfully reveal the full extent of his employment activities and
earnings. The Office may also meet this burden if it establishes through the totality of the factual
circumstances that appellant’s certification in the EN1032 form that he was not employed or selfemployed, was false.11
ANALYSIS -- ISSUE 1
In order to determine whether an overpayment of compensation occurred in this case, the
Board must initially determine whether appellant forfeited his right to monetary compensation
from November 10, 2003 to October 11, 2005.
On February 10 and October 11, 2005 appellant signed EN1032 forms, attesting that he
was unemployed, had not engaged in any self-employment activities and had no earnings from
November 10, 2003 through October 11, 2005. However, the record reflects that appellant failed
to report his earnings as an umpire, director of tournaments and salesperson for the stated period.
Appellant contended that he did not report his earnings on the EN1032 form because he did not
have any profits from his employment or sales activities during the stated period. The Board
notes that the EN1032 form specifically required appellant to report earnings from employment
activities for which he received a salary, wages, income, sales commissions, piecework or
payment of any kind even if operated at a loss. It is well established that the lack of profits from

7

5 U.S.C. § 8106(b).

8

Barbara L. Kanter, 46 ECAB 165 (1994).

9

20 C.F.R. § 10.5(n); see Donald L. Overstreet, 54 ECAB 678 (2003).

10

See Michael D. Mathews, 51 ECAB 247 (1999).

11

See Donald L. Overstreet, supra note 9; see also Terryl A. Geer, 51 ECAB 168 (1999).

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employment activities does not remove the employee’s obligation to report earnings to the Office
as required.12
The next issue to be resolved is whether appellant knowingly omitted or understated any
part of his earnings for the period November 10, 2003 to October 11, 2005.13
Mr. Cuddy, a head umpire and scheduler of softball umpires, stated that appellant worked
as an umpire from 2004 to 2005. Copies of his 2004 and 2005 umpire lists, contained
appellant’s name and telephone number. He related that an umpire was paid $18.00 per game if
two umpires worked together and $36.00 per game if an umpire worked alone. Mr. Cuddy
further related that umpires were paid cash for most games and only received checks for games
that were forfeited or played on a military base. He stated that appellant did not receive any
checks in 2004. Four checks payable to appellant reveal that he received $86.00 on June 1,
2005, $54.00 on July 4, 2005, $121.00 on August 1, 2005 and $28.00 on August 26, 2005.
During an April 10, 2006 interview with employing establishment investigators, appellant
admitted to working as a softball umpire for which he was paid $47.00 and director for which he
was paid approximately $250.00.
Appellant acknowledged to investigators and testified at the prerecoupment hearing that
he worked as an umpire, director of tournaments and salesperson beginning in 2004 through
2005. He contended that the most money he made as a director of softball tournaments was
approximately $47.00. For all the tournaments appellant directed in 2005, he made
approximately $250.00. As an umpire he earned approximately $250.00 in 2004 and $400.00 in
2005. Appellant contended that he actually earned less due to expenses associated with softball
which included a registration fee, uniform, coats and cleats. He also contended that he did not
receive a 30 percent sales commission because he discounted the products he sold by this amount
for his customers. Appellant contended that he was not required to report these earnings because
they were de minimus. The evidence, however, does not support his contentions. The abovenoted checks and appellant’s admission establish that he received at least $586.00 in earnings as
an umpire and a director. The Board finds that appellant’s earnings were not de minimus.14 As
appellant did not report the full extent of his earnings when he completed the February 10 and
October 11, 2005 EN1032 forms, the Board finds that he knowingly understated his earnings.15
Accordingly, appellant forfeited his right to compensation during the period covered by the
forms, November 10, 2003 to October 11, 2005, which created an overpayment of compensation
in the amount of $75,934.02.

12

See Melvin E. Gibbs, 54 ECAB 473 (2003).

13

5 U.S.C. § 8106(b)(2).

14

See Albert A. Garcia, 54 ECAB 206 (2002) (earnings of $400.00 were not considered de minimus where
appellant did not report the full extent of earnings when he completed Form EN1032). See also Antonio J. Giunta,
53 ECAB 370 (2002); Barbara L. Kanter, supra note 8.
15

Roger Seay, 39 ECAB 441, 445 (1988).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act16 provides that an
overpayment of compensation shall be recovered by the Office unless incorrect payment has
been made to an individual who is without fault and when adjustment or recovery would defeat
the purpose of the Federal Employees’ Compensation Act or would be against equity and good
conscience.17 Thus, the Office may not waive the overpayment of compensation unless appellant
was without fault.18 Adjustment or recovery must, therefore, be made when an incorrect
payment has been made to an individual who is with fault.19
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect;
“(2) failed to provide information which he or she knew or should have known to
be material; or
“(3) accepted a payment which he or she knew or should have known was
incorrect.20”
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”21
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in creating the overpayment. As noted, he
knowingly failed to report earnings from self-employment to the Office resulting in a forfeiture
for the period in question. Accurate earnings information is material to the question of
appellant’s entitlement to continuing wage-loss compensation. Because he made incorrect
16

5 U.S.C. § 8129(b).

17

Michael H. Wacks, 45 ECAB 791, 795 (1994).

18

Norman F. Bligh, 41 ECAB 230 (1989).

19

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

20

20 C.F.R. § 10.433(a).

21

Id. at § 10.433(b).

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statements as to material facts which he knew or should have known to be incorrect, appellant is
at fault in creating the overpayment and is not entitled to waiver.22
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Federal Employee’ Compensation Act.23 As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to
recovery of the overpayment under the Debt Collection Act.24
CONCLUSION
The Board finds that appellant forfeited his entitlement to compensation from
November 10, 2003 through October 11, 2005 because he knowingly failed to report earnings
from his self-employment during this period, thereby, creating an overpayment in the amount of
$75,934.02. The Board further finds that the Office properly found that appellant was at fault in
the creation of the overpayment, thereby, precluding waiver.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

22

Id. at § 10.433(a).

23

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

24

Cheryl Thomas, supra note 23.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kent, CT, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1955
Issued: July 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On September 24, 2012 appellant, through counsel, filed a timely appeal of a July 20,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying modification
of a May 5, 1999 loss of wage-earning capacity decision. The Board docketed the appeal as
No. 12-1955.
The record reveals that on March 14, 1996 appellant, then a 41-year-old full-time rural
carrier, filed an occupational disease claim alleging that on December 29, 1995 she first became
aware that the two cervical slipped discs were caused by her processing and delivery of mail and
the added exertion of inclement winter weather on her delivery of mail. OWCP accepted the
claim for cervical strain and aggravation of preexisting fibromyalgia. On August 15, 1997
appellant accepted the employing establishment’s August 6, 1997 modified job offer working
four hours per day. The employing establishment noted that the modified job assignment was
based upon claim numbers xxxxxx967 and xxxxxx579.1 By decision dated May 5, 1999, OWCP
1

The duties of the position included answering the telephone, filing case mail no higher than shoulder level and
renumbering approximately 500 post office boxes. The position was for the duration of her limited-duty period and
could be modified as her medical restrictions changed. Physical requirements of the position included: up to 10
percent carrying/lifting; reaching above the shoulder; driving a vehicle; walking, bending/stooping, twisting and
pulling/pushing; sitting and standing based on appellant’s comfort; no kneeling; and up to 50 percent fine
manipulation and simple grasping.

issued a loss of wage-earning capacity decision, effective September 3, 1997, based upon a
modified rural letter carrier job working 20 hours per week with wages of $19.70 per hour. It
found that the position fairly and reasonably represented appellant’s loss of wage-earning
capacity.
OWCP procedures provide that cases should be doubled when a new injury is reported
for an employee who previously filed an injury claim for a similar condition and further indicates
that the cases should be doubled as soon as the need to do so becomes apparent.2
The Board, having reviewed the case record submitted by OWCP, finds that the record is
incomplete as it appears that the modified job duty, upon which the May 5, 1999 loss of wageearning capacity decision was based, considered injuries sustained in both claim number
xxxxxx967 and claim number xxxxxx579. The record before the Board contains no evidence
from claim number xxxxxx967.
The record is also missing evidence from claim number xxxxxx579 including the initial
claim form, the medical evidence upon which the modified job was based and the initial
acceptance of the claim. As the record before the Board does not contain evidence from claim
number xxxxxx967 referenced by the employing establishment in the August 6, 1997 modified
job offer, the Board is unable to properly address and adjudicate whether the May 5, 1999 loss of
wage-earning capacity decision was proper or should be modified.
The Board, therefore, finds that the appeal docketed as No. 12-1955 is not currently in
posture for a decision as the missing evidence would not allow for an informed adjudication on
the part of this Board. The case is remanded for OWCP to combine the present case record,
claim number xxxxxx579 with claim number xxxxxx967. After such further development as
deemed necessary, OWCP shall issue a de novo decision.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

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IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 20, 2012 be set aside and the case remanded for further action in
conformance with this order of the Board to be followed by an appropriate decision.
Issued: July 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Y., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Milford, MA, Employer
__________________________________________

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

Docket No. 10-1416
Issued: January 14, 2011

Case Submitted on the Record

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

JURISDICTION
On April 28, 2010 appellant filed a timely appeal from an April 8, 2010 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration as untimely
filed and failing to demonstrate clear evidence of error. Because more than one year elapsed
from the last merit decision of September 21, 2006 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

1

For final adverse decisions of the Office issued prior to November 19, 2008, a claimant had up to one year to
file a Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse decisions of the Office issued on and after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On December 29, 2004 appellant, then a 25-year-old budget technician, filed an
occupational disease claim alleging that she was sexually harassed in the performance of her
federal job duties. Her supervisor, Lieutenant Cornel Thomas W. Desmond, submitted a
January 10, 2005 statement advising that she was terminated on January 9, 2004 due to tardiness
and poor performance. He noted that appellant was restored to duty on May 30, 2004 as the
result of an internal investigation. Lt. Col. Desmond stated that she attributed her difficulties to
the death of a friend. Appellant thereafter submitted medical evidence diagnosing anxiety and
mentioning sexual harassment while at the employing establishment.
By decision dated June 13, 2005, the Office denied appellant’s claim for an emotional
condition on the grounds that she failed to provide sufficient evidence to support her allegations.
Appellant requested an oral hearing on November 29, 2005. The Branch of Hearings and
Review denied this request as untimely by decision dated January 5, 2006.
In a letter dated January 5, 2006, appellant reiterated alleged that she was the victim of
sexual harassment by a male senior ranking officer who was her supervisor. She contended that
she filed a sexual harassment claim and was unlawfully terminated within a week. Following an
investigation, appellant was offered her position again, but declined.
She attributed
post-traumatic stress disorder, eating disorder and depression as well as multiple panic attacks, to
her former employment. Appellant detailed the events that she considered as sexual harassment,
including an order to transfer locations so as to report to the alleged perpetrator, orders to stay in
a hotel room while attending a financial review conference held 10 miles from her home and a
request for a single room to share with the alleged perpetrator as well as other sexual advances.
She alleged that her time cards were altered to reflect absences during time which she worked.
Appellant requested reconsideration on February 28, 2006. She submitted an April 18,
2006 factual statement alleging that her supervisor asked her out to dinner and when she refused
he called her fat. The supervisor stated that he wanted to “nail her” and based on this appellant
requested that a female provide a promotion pin, but she was not promoted for two months.
Appellant alleged that her supervisor made offensive sexual jokes and comments in front of other
employees.
By decision dated September 21, 2006, the Office denied modification of the June 13,
2005 decision, finding that the evidence of the record did not establish a compensable work
factor.
Appellant requested reconsideration on March 2, 2009 and submitted a document
entitled, “Findings.” She alleged that her time and attendance had been inappropriately
annotated retroactively, her termination was not within sound personnel procedures and an
undisciplined, unhealthy and unprofessional workplace environment in general. A memorandum
dated September 21, 2004, stated that the investigation had been completed and that the
allegations of sexual harassment were unsubstantiated although appellant’s termination was not
done in accordance with sound personnel procedures. On August 2, 2009 appellant reiterated

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that she was writing in connection with her appeal and resubmitted the findings and
memorandum.
Appellant disagreed with the findings of the investigation and on March 1, 2010 again
alleged sexual harassment. In a report dated January 26, 2006, R. Elizabeth Roebuck Ph.D., a
clinical psychologist, diagnosed post-traumatic stress disorder as a result of sexual harassment.
In a letter dated March 11, 2010, the Office asked that appellant specify the appeal she
wished to pursue. Appellant indicated with a checkmark that she sought reconsideration and
resubmitted the above documentation.
By decision dated April 8, 2010, the Office denied reconsideration on the grounds that
appellant’s request was not timely nor established clear evidence of error.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act2 the Office has the
discretion to reopen a case for review on the merits, on its own motion or on application by the
claimant. It must exercise this discretion in accordance with section 10.607 of the implementing
federal regulations. Section 10.607 provides that “An application for reconsideration must be sent
within one year of the date of the [Office] decision for which review is sought.”3 In Leon D.
Faidley, Jr.,4 the Board held that the imposition of the one-year time limitation for filing an
application for review was not an abuse of the discretionary authority granted the Office under
section 8128(a) of the Act. The one-year time limitation period set forth in 20 C.F.R. § 10.607
does not restrict the Office from performing a limited review of any evidence submitted by a
claimant with an untimely application for reconsideration. The Office is required to perform a
limited review of the evidence submitted with an untimely application for review to determine
whether a claimant has submitted clear evidence of error on the part of the Office thereby requiring
merit review of the claimant’s case.
Thus, if the request for reconsideration is made after more than one year has elapsed from
the issuance of the decision, the claimant may only obtain a merit review if the application for
review demonstrates “clear evidence of error” on the part of the Office.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.6 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.7 Evidence which does not raise a
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607.

4

41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

6

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

7

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

3

substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create a
conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative
value to shift the weight of the evidence in favor of the claimant and raise a fundamental question
as to the correctness of the Office decision.11 The Board makes an independent determination of
whether a claimant has submitted clear evidence of error on the part of the Office such that the
Office abused its discretion in denying merit review in the face of such evidence.12
ANALYSIS
On appeal, appellant alleged that there was substantial evidence to support her claim of
sexual harassment and that she developed post-traumatic stress disorder.
The only decision before the Board on this appeal is the Office April 8, 2010 decision that
found appellant’s request was not timely filed and did not show clear evidence of error. Since
more than one year elapsed from issuance of the Office’s September 21, 2006 merit decision to the
date of her March 2, 2009 and March 15, 2010 requests for reconsideration, the Board lacks
jurisdiction to review that decision.13
The Board finds that the April 8, 2010 denial by the Office to reopen appellant’s claim for
further reconsideration on the merits was proper as it was untimely and did not establish clear
evidence of error.
Appellant submitted additional documentation concerning the employing establishment’s
investigation into her complaint of sexual harassment and termination. This evidence does not
support a finding of sexual harassment. As this evidence does not support appellant’s allegations,
it does not raise a substantial question concerning the correctness of the Office’s decision
denying her claim. It is not sufficient to require the Office to reopen her claim for
reconsideration of the merits, as it does not establish that the Office clearly erred in finding no
compensable employment factors pertaining to her allegations of harassment.
Appellant also submitted a report dated January 26, 2006 from Dr. Roebuck. The Board
notes that, in emotional condition cases, when a claimant has not established a compensable
8

See Jesus D. Sanchez, supra note 5.

9

See Leona N. Travis, supra note 7.

10

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

11

Supra note 4.

12

Gregory Griffin, 41 ECAB 186 (1986), petition for recon., denied, 41 ECAB 458, 466 (1990).

13

See 20 C.F.R. § 501.3(d)(2).

4

employment factor, the Office need not consider the medical evidence of record.14 As noted, the
Office denied the claim as appellant failed to establish a compensable factor of employment.
The additional medical evidence is not relevant to this factual finding or sufficient to establish
clear evidence of error on the part of the Office.
On appeal, appellant disagreed with the Office’s decision and reiterated that she was
sexually harassed. In order to establish a compensable factor of employment appellant must
substantiate her allegation of harassment with probative and reliable evidence.15 The evidence
submitted does raise a substantial question as to the correctness of the Office’s 2006 decision
denying her claim.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s claim for
consideration of the merits on the grounds that her request for reconsideration was not timely and
did not establish clear evidence of error.
ORDER
IT S HEREBY ORDERED THAT the April 8, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
14

C.S., 58 ECAB 137 (2006).

15

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFFICE,
Springfield, MA, Employer
__________________________________________

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

Docket No. 18-0351
Issued: October 1, 2018

Case Submitted on the Record

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

JURISDICTION
On August 29, 2017 appellant filed a timely appeal from a March 3, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decisions, dated October 26, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
a hearing.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its March 3, 2017 merit decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On January 30, 2015 appellant, then a 37-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she injured her hands and knees on January 27, 2015 when she
slipped and fell on ice while in the performance of duty. She stopped work the next day on
January 28, 2015, and received continuation of pay. On April 15, 2015 OWCP accepted
appellant’s claim for bilateral knee abrasion, left wrist sprain, left shoulder sprain, and low back
sprain. For the period March 14 through May 23, 2015, it paid compensation for temporary total
disability. Thereafter, OWCP compensated appellant for periods of intermittent wage loss through
September 7, 2015.
After September 7, 2015, appellant again stopped work on October 10, 2015 and
subsequently filed a claim for compensation (Form CA-7) for temporary total disability through
November 4, 2015.
Appellant came under the care of Dr. Ashif Jethava, a Board-certified internist, from
October 28, 2015 to January 27, 2016, for chronic low back pain. Dr. Jethava diagnosed low back
pain radiating to the right lower extremity, and left hip and left knee pain secondary to chronic
degenerative joint disease versus a work-related injury. In notes dated October 28 to November 9,
2015, he indicated that appellant was disabled from work from October 9 to 29, 2015; October 31
to November 3, 2015; and November 7 to 8, 2015. On January 13, 2016 appellant presented with
chronic low back pain and reported being off work from January 9 to 12, 2016.
Appellant also submitted a claim for compensation (Form CA-7) for the period January 9
to 12, 2016.
In correspondence dated March 28 and July 1, 2016, OWCP advised appellant of the need
to submit additional medical evidence to establish her claim for compensation for the periods
October 10 to November 4, 2015 and January 9 to 12, 2016.
Dr. Jethava continued to treat appellant for complaints of chronic neck and radicular low
back pain. In a May 24, 2016 letter, he advised that she was currently under his care due to a
January 27, 2015 work-related injury. Dr. Jethava further advised that appellant was unable to
work due to back pain from October 9 to 29, 2015; October 31 to November 3, 2015; November 7
to 8, 2015; and January 9 to 12, 2016.
In two separate decisions of even date, October 26, 2016, OWCP denied appellant’s claims
for compensation for the periods October 10 to November 4, 2015 and January 9 to 12, 2016.
On November 23, 2016 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.3

3

Appellant indicated her preference for a telephone hearing.

2

By letter dated November 30, 2016, OWCP acknowledged appellant’s request for an oral
hearing. The letter also advised appellant of her rights and responsibilities with respect to informal
hearings under FECA.
On January 18, 2017 OWCP’s hearing representative notified appellant that a telephone
hearing would be held on February 22, 2017 at 1:45 p .m., Eastern Standard Time. He instructed
her to call the provided toll-free number shortly before the hearing time and enter the pass code
to gain access to the conference call. OWCP’s hearing representative mailed the January 18,
2017 notice of hearing to her address of record.4
By decision dated March 3, 2017, OWCP’s hearing representative found that appellant
had abandoned her request for a hearing. He determined that appellant received 30 days advanced
written notice of the scheduled February 22, 2017 hearing, but failed to appear. The hearing
representative further noted that there was no indication in the record that appellant contacted
OWCP either prior or subsequent to the scheduled hearing to explain her failure to appear. Under
the circumstances, he deemed that appellant abandoned her request for a hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.5 Unless
otherwise directed in writing by the claimant, the representative of OWCP’s Branch of Hearings
and Review will mail a notice of the time, place, and method of the hearing to the claimant and
any representative at least 30 days before the scheduled date.6 OWCP has the burden of proving
that it mailed notice of a scheduled hearing to the claimant and any representative.7 Absent
evidence to the contrary, a letter properly addressed and mailed in the ordinary course of
business is presumed to have been received. This is known as the mailbox rule.8
A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing.9 With the exception of overpayment prerecoupment
4

On January 23, 2017 appellant submitted another request for an oral hearing with respect to OWCP decision(s)
dated October 26, 2016.
5

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

6

20 C.F.R. § 10.617(b).

7

T.P., Docket No. 15-0806 (issued September 11, 2015).

8

See James A. Gray, 54 ECAB 277, 280 (2002).

9
20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.6g (October 2011).

3

hearings, where it has been determined that a claimant has abandoned his or her right to a
hearing, OWCP’s Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned the request for a hearing.10
ANALYSIS
In two separate decisions dated October 26, 2016, OWCP denied appellant’s claims for
compensation for the periods October 10 to November 4, 2015 and January 9 to 12, 2016.
Appellant timely requested an oral hearing. OWCP acknowledged her request on November 30,
2016, and in a January 18, 2017 letter, the hearing representative notified her that a telephone
hearing was scheduled for February 22, 2017 at 1:45 p.m. Eastern Standard Time. However,
the hearing did not occur as scheduled.
Both, the November 30, 2016 acknowledgment letter and the January 18, 2017 30-day
prehearing notification, were mailed to appellant’s address of record, and neither
correspondence was returned to OWCP as undeliverable. Absent evidence to the contrary, a
letter properly addressed and mailed in the ordinary course of business is presumed to have been
received.11 Appellant has not submitted any evidence indicating that she did not receive the
January 18, 2017 hearing notification. As such, a letter properly addressed and mailed in the
ordinary course of business is presumed to have been received. The presumption arising under
the mailbox rule, has not been rebutted.
The January 18, 2017 hearing notification included a toll-free number and a pass code
that appellant was to use in order to access the scheduled February 22, 2017 telephone hearing.
The hearing did not occur as scheduled. Appellant argued that she was unable to get through to
call. While she may have experienced difficulty calling in at the appointed time, there is no
evidence in the record that she timely advised OWCP of her calling difficulties. Also, appellant
did not submit a written request within 10 days after the February 22, 2017 scheduled hearing
requesting that another hearing be scheduled. Under the above-noted circumstances, OWCP’s
hearing representative properly determined that appellant abandoned her request for an oral
hearing.12
CONCLUSION
The Board finds that appellant abandoned her request for an oral hearing.

10

Id. at Chapter 2.1601.6(g).

11

See James A. Gray, supra note 8.

12

See 20 C.F.R. § 10.622(f).

4

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 1, 2018
Washington, DC

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

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

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

5


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

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

Docket No. 09-121
Issued: August 13, 2009

Case Submitted on the Record

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

JURISDICTION
On October 15, 2008 appellant, through her representative, filed a timely appeal from the
July 2, 2008 merit decision of the Office of Workers’ Compensation Programs, which denied her
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case. The Board also has jurisdiction to review the
Office’s September 29, 2008 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of temporary total disability
on June 10, 2008 when limited duty was no longer available; and if so, (2) whether the Office
properly denied her July 10, 2008 request for reconsideration.
FACTUAL HISTORY
On or about November 16, 2004, appellant, then a 60-year-old mail processor, filed a
claim alleging that she developed carpal tunnel syndrome in the performance of her duties. She
stopped work that day. The Office accepted appellant’s claim for bilateral carpal tunnel

syndrome.1 It paid compensation for temporary total disability through December 18, 2004.
Appellant returned to full-time limited duty on December 21, 2004. On November 6, 2006 the
Office issued a schedule award for a 26 percent permanent impairment of both upper extremities.
The period of the award ran from September 5, 2006 to October 14, 2009.
On June 13, 2008 appellant filed a claim for compensation for six and a half hours’ wage
loss on June 10, 2008. Her supervisor indicated on a time analysis form that there was no work
available within her limitations.
In a decision dated July 2, 2008, the Office denied appellant’s claim for wage-loss
compensation. It noted that while schedule awards may be paid after an employee returns to
work, an employee may not receive wage-loss compensation and schedule award benefits
concurrently for the same injury. Because the period of the November 6, 2006 schedule award
overlapped with the claimed date of wage loss, the Office found that appellant was not entitled to
any wage-loss compensation for June 10, 2008.
On July 10, 2008 appellant, through her representative, requested reconsideration. She
noted that the only basis given for denying her claim was that she was currently receiving
schedule award benefits. Appellant argued that the Office should interrupt the award and pay
wage-loss compensation for the various periods triggered by the withdrawal of modified work.
In a decision dated September 29, 2008, the Office denied appellant’s request for
reconsideration. It found that appellant’s argument -- that the schedule award should be
interrupted to pay wage-loss compensation for the claimed recurrence -- lacked a reasonable
color of validity and did not warrant a merit review of the case. Although Office procedures
allowed for the interruption of a schedule award “to be paid” when a recurrence of disability is
accepted, the Office noted no provision to retroactively interrupt a schedule award.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 If there is permanent physical
impairment involving the loss or loss of use of a member or function of the body or involving
disfigurement, the employee is entitled to a schedule award.3
An employee cannot concurrently receive compensation under a schedule award and
compensation for disability for work, on the theory that these are parallel remedies for the same
injury.4 But Office procedures state that if a recurrence is accepted for a period which overlaps a
schedule award, it will be necessary to interrupt the schedule in order to pay for the period of
recurrence. And if a recurrent pay rate is established, the claimant will be entitled to that rate for
1

The Office later expanded its acceptance to include acceleration of degenerative arthritis in both hands.

2

5 U.S.C. § 8102(a).

3

Id. at § 8107.

4

Marie J. Born, 27 ECAB 623, 628-29 (1976).

2

the balance of the schedule award after the period of disability attributable to the recurrence has
ceased.5
ANALYSIS -- ISSUE 1
The Office denied appellant’s claim for wage-loss compensation on the grounds that an
employee may not receive wage-loss compensation and schedule award benefits concurrently for
the same injury. However, Office procedures provide that if a recurrence of disability is
accepted for a period that overlaps a schedule award, as might be the case if no work was
available within appellant’s limitations on June 10, 2008, then it will be necessary for the Office
to interrupt the schedule award in order to pay wage loss for a recurrence. In this way, Office
procedures allow a claimant to receive compensation for wage loss and compensation under a
schedule award without violating the prohibition on concurrent receipt.
So the basis upon which the Office denied appellant’s June 13, 2008 claim for wage loss
is not sufficient. The Board will set aside its July 2, 2008 decision and remand the case for such
further development as may be necessary and for findings to support an appropriate merit
decision on appellant’s claim of wage loss. Because the Board is remanding the case to the
Office for a merit review, the issue presented by the Office’s September 29, 2008 decision
denying reconsideration is moot.
CONCLUSION
The Board finds that this case is not in posture for decision. The Office denied
appellant’s claim of wage loss without sufficient findings.6 Further action is therefore warranted.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.0808.7.a(3) (November 1998).
6

See e.g., Ernesto L. Montoya, 35 ECAB 205 (1983); see also 20 C.F.R. § 10.126; Federal (FECA) Procedure
Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.2c (March 1997).

3

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2008 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
opinion.
Issued: August 13, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 07-1520
Issued: October 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 14, 2007 appellant filed a timely appeal from the merit decision of the Office of
Workers’ Compensation Programs dated April 11, 2007 finding that appellant received an
overpayment in the amount of $2,495.96 and that he was at fault in the creation of that
overpayment, thus precluding waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the overpayment decision in this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,495.96; and (2) whether the Office properly found that appellant was at fault in the
creation of this overpayment thus precluding waiver of the overpayment.
FACTUAL HISTORY
On June 9, 2005 appellant, then a 62-year-old mail handler equipment operator, filed a
traumatic injury claim alleging that he sustained trauma to his left shoulder and left arm when he

jumped off a truck that had started moving forward. His claim was accepted for sprain/strain of
the left shoulder/arm and sprain/strain of the lumbar region. Appropriate compensation and
medical benefits were paid.
In a report of termination of disability and/or payment form submitted on May 22, 2006,
the employing establishment noted that appellant had returned to full duty on April 4, 2006.
On January 24, 2007 the Office issued a preliminary determination that appellant
received an overpayment in the amount of $2,495.96 because he continued to receive
compensation payments for the period April 4 through May 13, 2006 although he had returned to
work. Appellant filed no timely response.
By decision dated April 11, 2007, the Office finalized its decision that an overpayment in
the amount of $2,495.96 was created. It further found that appellant was at fault in the creation
of the overpayment and that he was therefore not entitled to waiver.
LEGAL PRECEDENT
Section 8116(a) of the Federal Employees’ Compensation Act provides that, while an
employee is receiving compensation under the Act, the employee may not receive salary, pay or
remuneration of any type from the United States, except in limited circumstances.1
ANALYSIS
The Office determined that an overpayment of $2,495.96 was created because appellant
returned to work and received wages while he continued to receive compensation payments
under the Act. In order to confirm the continuing compensation payments, the record should
establish the specific payments that were made, the date issued and the compensation period
covered by the specific payments. The Board finds that the record is devoid of any evidence that
compensation was paid for the relevant period and in what amount. The Office’s statements and
calculations are not enough; proof of payment must be in the record. Otherwise, the Board does
not have sufficient evidence to review whether the Office properly determined the amount of the
overpayment. There is no evidence such as a computer printout establishing the payment of
compensation for the period from April 4 to May 13, 2006.2 Therefore, the Office has failed to
establish that an overpayment occurred in this case.3
1

5 U.S.C. § 8116(a); see Danny E. Haley, 56 ECAB __ (Docket No. 04-853, issued March 18, 2005) (Office
procedures provide that an overpayment of compensation is created when a claimant returns to work but continues
to receive wage-loss compensation).
2

See J.C., Docket No. 06-1229 (issued September 14, 2006) (the Board found that the Office failed to establish
an overpayment when there was no evidence with respect to individual payments issued during the relevant time
period); Salvator A. Schembari, Docket No. 05-1309 (issued December 6, 2005) (the Board found that the Office
failed to establish that an overpayment existed as the record was devoid of any evidence that specific payments were
made, the date issued and the period covered by the specific payments); William P. Tippets, Docket No. 03-1755
(issued July 29, 2004) (the Board found that the Office failed to establish an overpayment existed as the record
contained no evidence of the specific amount he was entitled to receive at the correct rate).
3

In light of the resolution of the first issue, the remaining issue is moot.

2

CONCLUSION
The Board finds that the Office failed to establish that an overpayment in the amount of
$2,495.96 has been created.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 11, 2007 is reversed.
Issued: October 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-543
Issued: June 24, 2008

Case Submitted on the Record

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

JURISDICTION
On November 2, 2007 appellant filed a timely appeal from the October 2, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty, as alleged.
FACTUAL HISTORY
On June 29, 2007 appellant, then a 60-year-old supervisory inventory manager, filed a
claim for an occupational disease alleging that he had disc degeneration due to his federal
employment. He stated, “The injury I sustained in 1996 has caused acceleration of arthritis in
lower and upper back.”

By letter dated July 13, 2007, the Office requested that appellant submit further
information.
By letter dated July 28, 2007, appellant indicated that his alleged back injury was caused
by long periods of sitting to complete computer and paperwork as well as making and cleaning
beds, replenishing linen closets and restocking linen shelves. These activities required repetitive
motion bending, stooping, leaning and lifting and aggravated his prior injury.
On September 27, 2006 the Office received a September 6, 2007 medical report from
Dr. Kenneth I. Light, a Board-certified orthopedic surgeon, who stated:
“[Appellant] has been troubled by increasing neck pain with increasing numbness
and weakness in his right upper extremity. If the problem is ignored, I am fearful
that he would not be able to use his right arm and continue on with work. I am
sure you can understand that when he was initially injured the back condition took
precedent. He did not recognize that the neck condition was so severe that it
might require surgery. Initially, he had something called cauda equine syndrome
which would take precedent over any other condition. As a result of working at
the [employing establishment] lifting beds and lifting heavy boxes actually up
until now, gradually the initial injury worsened as a result of again an initial twist
of the neck during the “horse play accident” and cumulative trauma suffered as a
result of repetitive lifting since.
“I would appreciate your attention to this matter since [appellant] is in need for
surgery, and without surgery will potentially lose the use of his right arm.”
By decision dated October 2, 2007, the Office denied appellant’s claim, finding that he
did not establish an injury under the Act. The Office noted that appellant did not submit any
medical evidence in response to its July 13, 2007 letter.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.1

1

Solomon Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

2

ANALYSIS
The Office accepted that appellant was exposed to the alleged employment factors.
However, it denied appellant’s claim on the grounds that he failed to submit medical evidence to
establish that the accepted employment activities caused a personal injury. In making this
determination, the Office failed to consider the September 6, 2007 medical report of Dr. Light
which was submitted prior to its October 2, 2007 decision denying appellant’s claim. It is well
established that the Office must consider all evidence of record. Since the Board’s jurisdiction of
a case is limited to reviewing the evidence which was before the Office at the time of its final
decision and the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to that subject matter which was properly submitted to the Office prior to the
time of issuance of its final decision be addressed by the Office.2 Dr. Light’s report addresses
the issue of whether appellant’s work activities resulted in a compensable medical condition.
There is no indication that the Office ever reviewed this evidence. Accordingly, the case will be
remanded to the Office for a review of the evidence submitted and an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2007 is set aside and remanded for further proceedings
consistent with this opinion.
Issued: June 24, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2

20 C.F.R. § 501.6(c); Yvette N. Davis, 55 ECAB 475 (2004); William A. Couch, 41 ECAB 548 (1990).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, SPRING GARDEN
STATION, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1381
Issued: November 23, 2016

Case Submitted on the Record

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

JURISDICTION
On June 20, 2016 appellant, through counsel, filed a timely appeal of a March 18, 2016
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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
traumatic injury causally related to a November 3, 2014 employment incident.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel contended that appellant had submitted prima facie factual and
medical evidence to establish his claim for right lower extremity lumbar radiculopathy and that
his physician’s report should be read in the light most favorable to appellant.
FACTUAL HISTORY
On November 4, 2014 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2014 he slipped on wet leaves that he could not
see in the dark and injured his right hip. On the reverse side of the claim form, the employing
establishment disagreed with appellant’s description of his employment incident, noting that he
asserted that he stepped onto the sidewalk which was covered with wet leaves. The employing
establishment found no wet leaves present when investigating the site of the incident.
Appellant signed a statement on November 3, 2014 alleging that while delivering mail he
slipped on some wet leaves that he could not see in the dark. He alleged that he slightly injured
his right hip. Appellant refused medical treatment.
The employing establishment challenged appellant’s claim on November 6, 2014 noting
again that on-site investigation did not reveal wet leaves. Appellant’s supervisor alleged that
appellant did not want to complete his assignment because it was dark. He further noted that
appellant initially refused medical treatment and reported his right hip was sore the following
day after driving to work.
Appellant completed a statement on November 4, 2014 noting that on November 3, 2014
he was delivering mail and walking down steps while holding the railing with his left hand. As
he descended the last step, he slipped injuring his right hip. Appellant alleged that he noticed
wet leaves that he was unable to see in the dark. He did not initially believe that he had
sustained a serious injury or that he needed medical attention. On November 4, 2014 appellant’s
hip was painful and pain was shooting down his leg to his knee.
The employing establishment provided appellant with an authorization for examination
(Form CA-16) on November 4, 2014.
In a letter dated November 12, 2014, OWCP requested that appellant provide additional
factual and medical evidence in support of his claim. It allowed 30 days for a response.
Dr. Craig H. Rosen, a Board-certified orthopedic surgeon, examined appellant on
November 11, 2014. He noted that appellant was descending stairs while delivering mail when
he slipped on some wet leaves. Dr. Rosen indicated that appellant’s legs went out from under
him and he fell onto his right hip and lower back. He diagnosed lumbar radiculopathy or
lumbosacral neuritis. Appellant returned to full-duty work at the employing establishment on
November 12, 2014.
On December 9, 2014 Dr. Rosen reported that appellant was performing full work duties
and experienced continued low back pain with increased pain and tingling in the right lower
extremity. He diagnosed lumbar spondylosis and lumbar radiculopathy at L4 and L5 on the
right.

2

By decision dated December 18, 2014, OWCP denied appellant’s traumatic injury claim
finding that he had not established that the employment event occurred as alleged. It noted that
he did not explain the discrepancy between his statement that he slipped on wet leaves and the
employing establishment’s assertion that there were no wet leaves present at the location of his
alleged employment incident.
Appellant submitted a request for reconsideration dated December 30, 2014, received
January 6, 2015. He described his employment incident and noted that on November 3, 2014 at
5:15 pm, it was dark and the pavement was wet from the previous day’s rain. Appellant slipped
as he came off the bottom step, but was holding the railing which prevented him from falling to
the ground. He felt pain in his hip and lower back. Appellant looked to see what caused him to
slip and saw wet leaves. He disagreed that the employing establishment performed an on-site
inspection. Appellant asserted that there was a tree in front of the house where he slipped and
definitely leaves at the bottom of the steps.
Appellant submitted his emergency records dated November 4, 2014. The records
indicated that he tripped and almost fell to the ground. Appellant held on to a railing and twisted
his right hip. Dr. Paul H. Reyes, a Board-certified internist, diagnosed a muscle strain.
By decision dated March 24, 2016, OWCP modified its prior decision finding that
appellant had submitted sufficient factual evidence to establish that the employment incident
occurred as alleged. However, it found that neither Dr. Reyes nor Dr. Rosen provided medical
reasoning explaining how appellant’s slip on November 3, 2014 resulted in right-sided
radiculopathy.
Appellant requested reconsideration on June 1, 2015. He submitted a note from
Dr. Rosen dated December 9, 2014 and amended December 30, 2014. Dr. Rosen added that the
diagnosed conditions were causally related to the workers’ compensation injury sustained on
November 3, 2014. He also amended his November 11, 2014 note on December 30, 2014 to
include that appellant’s diagnosed lumbar radiculopathy was causally related to his November 3,
2014 work incident.
By decision dated August 18, 2015, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that Dr. Rosen’s reports were repetitious and did not
warrant consideration of the merits of appellant’s claim.
Counsel requested reconsideration on December 22, 2015. He submitted a report from
Dr. Rosen dated November 23, 2015. Counsel contended that Dr. Rosen provided “abundant
reasons” for his conclusion that appellant sustained injury on November 3, 2014. Dr. Rosen
provided a history of treatment beginning on November 11, 2014 and diagnosed lumbar
radiculopathy. He described the November 3, 2014 employment incident noting that appellant
was descending stairs and slipped on some wet leaves, “[h]is legs went out from under him and
he fell on his right hip and lower back.” Appellant reported lower back pain with radiculopathy
to the right lower extremity. Dr. Rosen opined that there was a causal relationship between
appellant’s ongoing complaints of low back pain with radicular symptoms into his right lower
extremity and his November 3, 2014 injury sustained while delivering mail. He again noted that
appellant was descending steps and slipped on wet leaves. Dr. Rosen found that appellant was

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able to “hold onto a railing at that point preventing his fall to the ground, but he felt pain in his
low back and to his right hip and right lower extremity.” He concluded that appellant “wrenched
his lower back and created the irritation of the nerve roots in the lower back causing the radicular
symptoms in his right lower extremity.”
By decision dated March 18, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification. It found that Dr. Rosen’s report was not sufficient to meet appellant’s
burden of proof to establish his traumatic injury claim as it provided two different descriptions of
the employment incident. OWCP found that, due to the factual discrepancies, Dr. Rosen’s report
was not based on an accurate factual history.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place, and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8 A medical report is of limited probative value
on a given medical question if it is unsupported by medical rationale.9 Medical rationale
includes a physician’s detailed opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment activity. The
3

Id.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

7

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

8

J.Z., 58 ECAB 529 (2007).

9

T.F., 58 ECAB 128 (2006).

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opinion of the physician must be based on a complete factual and medical background of the
claim, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and specific
employment activity or factors identified by the claimant.10
ANALYSIS
The Board finds that appellant has not submitted the necessary medical evidence to
establish that he sustained a traumatic injury on November 3, 2014.
Appellant has submitted a clear description of the events of November 3, 2014 indicating
that he slipped, but did not fall, on wet leaves sustaining injury to his right hip. The emergency
room notes signed by Dr. Reyes the next day included this history of injury. Dr. Reyes
diagnosed a muscle strain, but did not provide any medical reasoning in describing how
appellant’s employment incident caused this condition. Due to this deficiency, this report is not
sufficient to meet appellant’s burden of proof and establish his traumatic injury claim.11
In support of his traumatic injury claim, appellant has also submitted a series of medical
reports from Dr. Rosen beginning on November 11, 2014. The initial report provided a history
of injury that did not comport with appellant’s statements. Dr. Rosen indicated that appellant fell
injuring his right hip and back on November 3, 2014. While Dr. Rosen provided additional
opinions and noted in an amended report on December 30, 2014 that the fall on November 3,
2014 resulted in appellant’s diagnosed lumbar radiculopathy, these reports were not based on an
accurate factual background and could not contain the necessary medical reasoning to establish
appellant’s traumatic injury claim.
In the November 23, 2015 report, Dr. Rosen provides two different descriptions of
appellant’s November 3, 2014 employment incident. He reiterates his earlier description of a
slip and fall, but at the end of his report indicates that appellant was able to prevent a fall to the
ground by holding onto a railing. Due to the variations of the descriptions of the employment
incident, the Board is unable to find that Dr. Rosen’s report is based on a proper history of
injury. Without a proper factual background, his opinions on causal relationship and his medical
reasoning lack probative value and contrary to counsel’s arguments on appeal are not sufficient
to meet appellant’s burden of proof or to require additional development of the medical evidence
by OWCP.12
10

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

11

See T.P., Docket No. 14-1946 (issued February 13, 2015).

12

As noted, the employing establishment executed a Form CA-16 on November 4, 2014 authorizing medical
treatment. The Board has held that where an employing establishment properly executes a Form CA-16, which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a
contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment
regardless of the action taken on the claim. See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R.
§§ 10.300, 10.304. Although OWCP denied appellant’s claim for an injury, it did not address whether he is entitled
to reimbursement of medical expenses pursuant to the Form CA-16. Upon return of the case, OWCP should further
address this matter.

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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 that he
sustained a traumatic injury causally related to a November 3, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2016
Washington, DC

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

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

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

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