United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, MANDARIN POST
OFFICE, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 09-1738
Issued: April 15, 2010

Case Submitted on the Record

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

JURISDICTION
On June 24, 2009 appellant filed a timely appeal from the April 17 and June 11, 2009
merit decisions of the Office of Workers’ Compensation Programs finding a forfeiture of
compensation, an overpayment and denying waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant forfeited her right to compensation on March 31,
2009 for knowingly and willingly making a false statement in connection with an application for
compensation; (2) whether appellant received an overpayment of compensation in the amount of
$1,456.83 for the period April 5, 1999 through June 7, 2008 when no deductions were made for
basic life insurance premiums; and (3) whether the Office abused its discretion under section
8129(a) of the Federal Employees’ Compensation Act by denying waiver of the recovery of the
overpayment.

FACTUAL HISTORY
On February 25, 1998 appellant, then a 44-year-old city carrier, filed a traumatic injury
claim alleging that on February 12, 1998 she injured her low back while moving a tub of flats.
The Office accepted the claim for lumbosacral strain, a herniated nucleus pulposus at L4-5 and
authorized a percutaneous discectomy, which was performed on August 16, 1999. Appellant
filed a claim for wage-loss compensation beginning April 5, 1999, which the Office accepted.
She was placed on the periodic rolls for temporary total disability effective May 23, 1999 and
paid compensation with no deduction for basic life insurance.
Appellant submitted Office EN1032 forms dated April 3, 2001, March 30, 2002,
March 29, 2003, April 7, 2004, July 11, 2005 and March 20, 2007 which reported no change in
the dependency status for her son. The record contains a copy of a death certificate for
appellant’s son confirming his death on April 6, 2000.
On June 18, 2008 the Office informed appellant that an audit revealed that deductions for
basic life insurance had not been made. Appellant was advised that $12.00 would be deducted
from future compensation checks for her basic life insurance and that she would receive a
separate letter informing her as to the amount of the overpayment in her case.
On April 14, 2009 the Office of the Inspector General (OIG) of the Department of Labor
notified the Office that appellant pled guilty on March 31, 2009 in U.S. District Court for the
Middle District of Florida, Jacksonville Division, to violating 18 U.S.C. § 1920 and requested
that her benefits be terminated. The OIG attached an indictment, a copy of the clerk’s March 31,
2009 minutes and a copy of the guilty plea agreement filed on the same date. In the plea
agreement, appellant pled guilty to Count Five of the indictment which charged her with making
a false statement on approximately April 25, 2008 when she stated there were no changes
regarding whether her dependent son was still living with her or employed when he in fact died
on April 6, 2000.
In a decision dated April 17, 2009, the Office found that appellant forfeited her right to
further compensation because she was convicted of fraud in the application for or receipt of
benefits under the Act. It terminated compensation effective March 31, 2009, including
authorization for medical treatment.
The record contains a computer worksheet and printouts dated April 20, 2009 regarding
the calculation of the overpayment due to basic life insurance, as it had not been deducted from
appellant’s compensation payments.
In an April 29, 2009 preliminary determination, the Office found that an overpayment of
compensation in the amount of $1,456.83 had occurred, as basic life insurance had not been
deducted from compensation payments for the period April 5, 1999 through June 7, 2008, for
which appellant was without fault. It advised appellant of actions available to her if she believed
that she should receive a waiver, including the ability to request a prerecoupment hearing and to
submit a completed overpayment recovery questionnaire and financial evidence. The record
does not contain information or evidence submitted by appellant in response to the preliminary
determination of the overpayment.

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By decision dated June 11, 2009, the Office finalized its preliminary overpayment
determination and found that waiver of the recovery of the overpayment was not warranted. It
requested repayment of the $1,456.83 in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8148 of the Act provides that any individual convicted of a violation of 18 U.S.C.
§ 1920, or any other federal or state criminal statute relating to fraud in the application for or
receipt of any benefit under the Act, shall forfeit, as of the date of such conviction, any
entitlement to any benefit such individual would otherwise be entitled to under the Act for any
injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to
any action the Secretary may take under section 8106 or 8129 of the Act.1
ANALYSIS -- ISSUE 1
The U.S. District Court for the Middle District of Florida found appellant guilty of
violating 18 U.S.C. § 1920. Specifically, the court found her guilty of making a false statement
in the application for and to obtain compensation under the Act. Appellant pled guilty and
entered into a plea agreement on March 31, 2009. Under section 8148 of the Act, she thus
forfeited any entitlement to benefits she would otherwise be entitled to under the Act for any
injury occurring on or before the date of such conviction.2 The Board therefore finds that
appellant forfeited the right to compensation effective March 31, 2009, the date of her
conviction.
LEGAL PRECEDENT -- ISSUE 2
The Act 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.3
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.4
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one

1

5 U.S.C. § 8148(a); see F.C., 59 ECAB ____ (Docket No. 07-1541, issued November 16, 2007); Elaine M.
Borghini, 57 ECAB 549 (2006).
2

Id.

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a). Keith H. Mapes, 56 ECAB 130 (2004).

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or more of the options.5 The coverage for basic life insurance is effective unless waived6 and the
premiums for basic and optional life coverage are withheld from the employee’s pay.7
The Act8 and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue his or her basic life insurance coverage without cost under
certain circumstances9 and may also retain the optional life insurance.10 At separation from the
employing establishment, the FEGLI insurance will either terminate or be continued under
compensationer status.11 If the compensationer chooses to continue basic and optional life
insurance coverage, the schedule of deductions made while the compensationer was an employee
will be used to withhold premiums from his or her compensation payments.12 Thus, while
receiving disability compensation in lieu of retirement benefits, the former employee is
responsible for all insurance premiums.13
ANALYSIS -- ISSUE 2
The record supports that for the period April 5, 1999 through June 7, 2008 the Office did
not make deductions for basic life insurance. In the absence of a specific waiver of coverage, it
should have deducted the premiums. This created an overpayment of compensation.
An Office computation worksheet noted that deductions for appellant’s basic life
insurance premiums for the period beginning April 5, 1999 through June 7, 2008 totaled
$1,456.83 but were not taken from her compensation. Appellant has not disputed this amount.
The Board finds that the Office properly determined that an overpayment in compensation in the
amount of $1,456.83 had been created for the period April 5, 1999 through June 7, 2008.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of the Act14 provides that an overpayment must be recovered unless
incorrect payment has been made to an individual who is without fault and when adjustment or
5

5 U.S.C. § 8702(a); 5 C.F.R. § 870.201.

6

Id. at § 8702(b); Id. at § 870.204(a).

7

Id. at § 8707.

8

5 U.S.C. §§ 8101-8193

9

5 C.F.R. § 870.701, subpart G.

10

Id. at § 871.201, subpart B; id. at § 870.201, subpart B; id. at § 873.203, subpart B.

11

Id. at § 870.501.

12

Id.

13

T.S., 60 ECAB ___ (Docket No. 08-1604, issued March 13, 2009); Keith H. Mapes, supra note 4; Scherri L.
Stanley, 53 ECAB 433 (2002).
14

5 U.S.C. § 8129.

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recovery would defeat the purpose of the Act or would be against equity and good conscience.15
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.16
Section 10.436 of the implementing federal regulations17 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.18
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.19
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by the
Office, as this information is needed to determine whether recovery of an overpayment would
defeat the purpose of the Act or be against equity and good conscience.20 This information
would also be used to determine the repayment schedule, if necessary. Section 10.438(b)
provides that failure to submit the requested information within 30 days of the request shall
result in denial of waiver.21
ANALYSIS -- ISSUE 3
In its April 29, 2009 preliminary overpayment determination, the Office informed
appellant of actions available to her if she believed that she should receive a waiver. It advised
her to submit a completed overpayment recovery questionnaire, as well as submit information
and evidence regarding her income and expenses, within 30 days.
Appellant did not respond. She did not submit a completed overpayment recovery
questionnaire form prior to the issuance of the Office’s final decision or any other financial
15

W.P., 59 ECAB ___ (Docket No. 08-202, issued May 8, 2008); Karen K. Dixon, 56 ECAB 145 (2004).

16

R.M., 60 ECAB ___ (Docket No. 07-1066, issued February 6, 2009); Wade Baker, 54 ECAB 198 (2002).

17

20 C.F.R. § 10.436.

18

M.B., 60 ECAB ___ (Docket No. 09-176, issued September 23, 2009); Keith H. Mapes, supra note 4.

19

20 C.F.R. § 10.437; see Madelyn Y. Grant, 57 ECAB 533 (2006).

20

Id. at § 10.438(a); see M.B., supra note 18.

21

Id. at § 10.438(b); see T.S., 60 ECAB ___ (Docket No. 08-1604, issued March 13, 2009).

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information outlining her income and expenses. As a result, there was no evidence before the
Office establishing that recovery of the overpayment would defeat the purpose of the Act or
would be against equity and good conscience.22 As appellant failed to submit the requested
information, as required by section 10.438 of the Office’s regulations, she was not entitled to a
waiver.23 The Board finds that the Office properly denied waiver of recovery of the
overpayment of compensation.
On appeal, appellant asserts that she should not be required to make repayment because
the overpayment was not her fault. The fact that appellant was without fault does not preclude
the Office from recovering all or part of the overpayment.24 Because she failed to submit the
requested financial information, appellant left the Office with no choice but to deny waiver.25
CONCLUSION
The Board finds that appellant forfeited her right to compensation effective March 31,
2009 for knowingly and willingly making a false statement in connection with an application for
and to receive compensation. The Board further finds that the Office properly determined that
appellant received an overpayment of compensation in the amount of $1,456.83, for which she
was without fault, because there were no deductions for basic life insurance premiums. The
Board also finds that the Office properly denied waiver of recovery of the overpayment.

22

20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
23

See T.S., supra note 21 (the failure to submit the requested financial information within 30 days of the request
shall result in denial of waiver); Keith H. Mapes, supra note 4.
24

See George A. Rodriguez, 57 ECAB 224 (2005); see also J.O., 60 ECAB ___ (Docket No. 09-264, issued
August 10, 2009) (Office regulations provide that an error by a government entity, including the Office, which
resulted in an overpayment does not relieve a claimant from liability for repayment); L.S., 59 ECAB ___ (Docket
No. 07-1961, issued February 14, 2008) (a finding that a claimant was without fault does not automatically result in
waiver of the overpayment).
25

See R.W. (A.T.), 59 ECAB ___ (Docket No. 07-1845, issued December 7, 2007); Madelyn Y. Grant, supra
note 19.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 11 and April 17, 2009 are affirmed.
Issued: April 15, 2010
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

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

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

Docket No. 16-0734
Issued: October 19, 2016

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 February 29, 2016 appellant filed a timely appeal from a January 6, 2016 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.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits as of January 6, 2016 because she no longer had residuals or
disability causally related to her accepted employment-related injury.
FACTUAL HISTORY
On October 24, 1997 appellant, then a 42-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed chronic plantar fascia inflammation as a
1

5 U.S.C. § 8101 et seq.

result of her federal employment duties, which required standing for long periods of time on
cement floors for 8 to 12 hours a day. She first became aware of her condition and of its
relationship to her employment on April 14, 1997. OWCP accepted the claim for bilateral
plantar fibromatosis.
Appellant did not stop work following the filing of her claim and continued working as a
mail handler with restrictions in a semi-modified position. Following her date of injury, she
worked eight hours maximum per day, with a break between each four hours of standing or
walking, with limited standing, walking, lifting, pushing, pulling, and no overtime.
By decision dated March 12, 1999, OWCP reduced appellant’s compensation to zero
based on its determination that the full-time limited-duty position of mail handler fairly and
reasonably represented her wage-earning capacity as she was earning wages at a “saved pay
rate,” equal to the current grade and step of her date-of-injury job as a mail handler. It
determined that appellant had work residuals which required permanent work restrictions, but
this did not prevent her from performing her date-of-injury job as a mail handler. As appellant
continued to work as a mail handler for eight-hour work shifts since July 1, 1998, she
demonstrated her ability to perform her date-of-injury job, resulting in no loss of wages due to
the accepted employment injury.
Appellant requested reconsideration on April 26, 1999. OWCP denied modification by
its July 29, 1999 decision.
On June 4, 2009 appellant accepted an offer for a modified mail handler position based
on her medically-defined work limitations. Her limitations were noted as lifting up to five
pounds intermittently; sitting seven hours per day intermittently; standing/walking one hour per
day intermittently; and no climbing, kneeling, bending, stooping, twisting, pulling, pushing,
simple grasping, fine manipulation, reaching above shoulder, driving a vehicle, and operating
machinery.
Appellant continued treatment for her condition. She began treatment with Dr. Aaron J.
Fritzhand, a doctor of podiatric medicine, on July 26, 2010.
In an October 31, 2014 report, Dr. Fritzhand reported that he first began treating
appellant on July 26, 2010 for pain in her heels. He noted that appellant tried to sit as much as
possible at work. Dr. Fritzhand explained that appellant had been seen nine times in his office
over the past four years. It had been approximately 1.5 years since she had last been evaluated.
Dr. Fritzhand noted that most of appellant’s pain was below both heels and that she had been
diagnosed with plantar fasciitis of both heels. He further noted that tarsal tunnel syndrome had
also been diagnosed based on magnetic resonance imaging (MRI) scan, x-rays, and physical
examination. Despite treatment, appellant complained of continued daily discomfort and pain
with any increased activity and standing. Dr. Fritzhand opined that her job at the employing
establishment contributed to her plantar fasciitis and was aggravating her medical condition.
In a July 6, 2015 report, Dr. Fritzhand reported that appellant complained of persistent
heel pain. Physical examination revealed continued pain at the plantar aspect of both heels.
Dr. Fritzhand diagnosed chronic plantar fasciitis of both feet, diabetes with possible neuropathy,

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bunions on both feet, hammertoes on both feet, possible calcaneal spurs, and pain in limb. He
discussed the need for surgery and appellant agreed to undergo the endoscopic plantar
fasciotomy procedure. In a July 20, 2015 duty status report (Form CA-17), Dr. Fritzhand
provided appellant her ongoing work restrictions for pain in both heels. On July 22, 2015
Dr. Fritzhand requested authorization for an endoscopic plantar fasciotomy.
On July 30, 2015 OWCP referred appellant, a series of questions, a statement of accepted
facts (SOAF), and the medical record to Dr. Gerard Papp, a doctor of osteopathic medicine and
Board-certified orthopedic surgeon, for a second opinion examination.
In his August 17, 2015 report, Dr. Papp provided findings on physical examination, a
history of injury, review of past medical records, and appellant’s work limitations. With regard
to any residuals of, or any disability from work stemming from the work-related injury, he
determined that appellant’s current complaints were due to nonwork-related factors and that
surgery was not warranted as her work injury had resolved. Dr. Papp explained that her bilateral
plantar fibromatosis had resolved, noting that the condition was usually present between 1.5 to 2
years and with symptoms resolving in 6 to 12 months. He noted that her chronic pain was due to
nonwork-related factors associated with diabetes mellitus type 2 and neuropathic changes, as
well as morbid obesity. Dr. Papp further reported that appellant had been performing modified
work duties since 2007 which entailed taking care of damaged mail in a seated position.
However, as appellant’s condition had resolved and she experienced no residuals of her accepted
work condition, he opined that she was capable of performing her usual job without restrictions.
Dr. Papp concluded that he did not find injections and endoscopic fasciotomy of the feet to be
appropriate treatment.
On November 4, 2015 OWCP notified appellant of a proposal to terminate her medical
and wage-loss compensation benefits based on Dr. Papp’s report that she was not experiencing
any residuals or disability connected to her employment injury as her accepted condition had
ceased. Appellant was afforded 30 days to submit additional medical evidence that she still had
residuals of the accepted condition.
In support of her claim, appellant submitted an October 16, 2015 narrative report from
Dr. Fritzhand. Dr. Fritzhand reported that he began treating appellant on July 26, 2010 for
bilateral heel pain for which she had received prior treatment stemming back to April 14, 1997.
At the time of his initial July 26, 2016 examination, he diagnosed plantar fasciitis. Dr. Fritzhand
explained that he treated appellant for plantar fasciitis over the past five years. While he did not
see her consistently over the years, appellant’s heel pain continued and restrictions were made at
her work to accommodate her pain level. Dr. Fritzhand further noted that appellant was also
diagnosed with diabetes and complaints of occasional numbness. He noted that part of her
chronic pain could be from diabetic neuropathy. Dr. Fritzhand opined that the original April 14,
1997 date of injury was the start of a long, progressive, chronic heel pain condition. He noted
that despite intermittent periods of pain relief, appellant continued to have pain with any
increased activity and standing. Dr. Fritzhand concluded that there was a direct correlation
between the original injury date and the current pain in her heels, and as such she required work
restrictions to accommodate her pain level.

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By decision dated January 6, 2016, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective that same date finding that the weight of the medical evidence
rested with Dr. Papp who found that appellant no longer had any residuals related to the accepted
work-related medical condition or continued disability as a result of the work injury or illness.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP has accepted a
claim and pays compensation, it bears the burden to justify modification or termination of
benefits.3 Having determined that an employee has a disability causally related to his or her
federal employment, OWCP may not terminate compensation without establishing either that the
disability has ceased or that it is no longer related to the employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 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.6 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
ANALYSIS
OWCP accepted appellant’s claim for bilateral plantar fibromatosis as a result of her
occupational disease injury on or about April 14, 1997. The issue is whether OWCP properly
terminated her medical and wage-loss compensation benefits effective January 6, 2016 as she
was not experiencing any residuals or disability of the accepted employment injury. The Board
finds that OWCP did not meet its burden of proof to terminate appellant’s medical and wage-loss
compensation benefits.
In its termination decision, OWCP determined that the weight of the medical evidence
rested with Dr. Papp, a Board-certified orthopedic surgeon serving as the second opinion
physician. The Board finds that the opinion of Dr. Papp is not well rationalized and fails to
represent the weight of the medical evidence.8

2

5 U.S.C. § 8102(a).

3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Edwin Lester, 34 ECAB 1807 (1983).

5

Roger G. Payne, 55 ECAB 535 (2004).

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

8

C.f. Y.M., Docket No. 14-1050, 14-1193 (issued December 24, 2014).

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In his August 17, 2015 medical report, Dr. Papp opined that appellant’s bilateral plantar
fibromatosis had resolved and she no longer required treatment. His opinion is insufficient to
establish that appellant’s condition had ceased and she was no longer experiencing residuals or
disability related to the April 14, 1997 employment injury. Dr. Papp’s assertion that plantar
fasciitis is typically present between 1.5 to 2 years with symptoms resolving in 6 to 12 months
lacks sound medical rationale for the stated conclusions. He based his opinion on speculation
and not on appellant’s individual circumstance as determined through her physical examination
and medical history. Dr. Papp’s report is insufficiently rationalized to establish that appellant
ceased to have residuals of her employment injuries.9 As such, his opinion is speculative and of
diminished probative value.10
With regard to any residuals of, or any disability from work stemming from the accepted
work injury, Dr. Papp determined that appellant’s current complaints were due to nonworkrelated factors associated with diabetes mellitus type 2 and neuropathic changes, as well as
morbid obesity. He explained that the neuropathic changes of both lower extremities were likely
due to high blood sugars and diabetes mellitus, which were causing her chronic pain. While
Dr. Papp generally opined that appellant’s complaints were due to nonwork-related factors, he
failed to provide a fully-rationalized explanation as to why appellant’s accepted plantar
fibromatosis apparently had no effect on her condition. The Board notes that it is not necessary
to prove a significant contribution of factors of employment to a condition for the purpose of
establishing causal relationship.11 An employee is not required to prove that occupational factors
are the sole cause of his or her claimed condition. If work-related exposures caused, aggravated,
or accelerated appellant’s condition, it is compensable.12 OWCP did not seek clarification from
Dr. Papp with regard to whether appellant’s nonoccupational conditions aggravated her plantar
fibromatosis.13 Dr. Papp’s brief opinion that appellant was capable of performing her job
without restrictions was vague and speculative and failed to establish that the work-related
condition had resolved.14
The Board notes that the reports of Dr. Fritzhand, serving as appellant’s treating
physician, provided support that appellant had continued residuals of the accepted condition.
Dr. Fritzhand opined that her job at the employing establishment contributed to her plantar
9

V.C., Docket No. 11-1561 (issued February 15, 2012).

10

See Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
11

H.C., Docket No. 16-0740 (issued June 22, 2016).

12

See Beth P. Chaput, 37 ECAB 158, 161 (1985); see also S.S., Docket No. 08-2386 (issued June 5, 2008).

13

When it refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, OWCP should secure an appropriate report on the relevant issues. See Ayanle A. Hashi, 56 ECAB
234 (2004) (when OWCP refers a claimant for a second opinion evaluation and the report does not adequately
address the relevant issues, it should secure an appropriate report on the relevant issues); Mae Z. Hackett, 34 ECAB
1421 (1983) (where OWCP referred appellant to a second opinion physician, it has the responsibility to obtain an
evaluation which will resolve the issue involved in the case).
14

N.C., Docket No. 15-1855 (issued June 3, 2016).

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fasciitis and was aggravating her medical condition. He recommended an endoscopic plantar
fasciotomy explaining that appellant’s heel pain continued despite work restrictions provided to
accommodate her pain level. Dr. Fritzhand concluded that appellant required work restrictions
as there was a direct correlation between the original injury date and the current pain in
appellant’s heels.
The evidence upon which OWCP terminated compensation benefits for the accepted
condition of plantar fibromatosis does not establish that the condition has resolved or is unrelated
to the accepted work injury.15
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in terminating appellant’s
medical and wage-loss compensation benefits effective January 6, 2016.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 19, 2016
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

15

P.T., Docket No. 09-68 (issued September 2, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belmont, MA, Employer
__________________________________________

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

Docket No. 10-2154
Issued: July 1, 2011

Case Submitted on the Record

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

JURISDICTION
On August 26, 2010 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated March 1, 2010 that denied modification of a wageearning capacity decision and an August 9, 2010 decision that denied his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 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 met his burden of proof to establish that a June 19,
2009 wage-earning capacity decision should be modified; and (2) whether the Office properly
refused to reopen his claim for further review of the merits pursuant to section 8128(a) of the
Act.
On appeal, appellant generally asserts that his job was makeshift and that he is entitled to
total disability compensation.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 3, 2003 appellant, then a 48-year-old letter carrier, injured his left shoulder
and arm when he protected himself from a rolling mail cart. The claim was initially accepted for
left shoulder and left rhomboid strain. The Office subsequently accepted herniated discs at C5-6
and C6-7 and a consequential fracture of the right proximal humerus. On December 30, 2003
appellant underwent cervical decompression laminectomies and fusion. He was placed on the
periodic compensation rolls. Appellant returned to modified duty on January 12, 2005. He filed
a recurrence claim on November 16, 2005, stating that he sustained disability commencing
October 6, 2005. By decision dated February 22, 2006, the Office denied the recurrence claim.
This was affirmed by an Office hearing representative in a February 21, 2007 decision.2
By report dated February 21, 2007, Dr. Janet Limke, a Board-certified physiatrist,
advised that appellant could not return to his date-of-injury position as a letter carrier but could
perform work with sitting restricted to four to six hours daily; simple grasping and lifting two
pounds continuously restricted to four hours daily; standing, walking with an assistive device,
pulling and pushing limited to one-half hour daily; and no climbing, kneeling, bending, stooping,
twisting or reaching above the shoulder. On April 17, 2007 the employing establishment offered
appellant a modified position of answering telephone calls for four hours daily. The physical
requirements included using hands to answer the telephone. Appellant returned to modified
work answering the telephone for four hours a day on April 20, 2007.
On January 29, 2008 the Office reduced appellant’s wage-loss compensation to reflect a
55 percent wage-earning capacity.
In a February 6, 2009 report, Dr. Eugenia Blank, a Board-certified neurologist, advised
that appellant’s neurological condition remained unchanged from a previous examination on
December 17, 2008, noting that his cervical spine range of motion remained limited. She
advised that he had longstanding mild weakness in the right upper and lower extremities and
ambulated with a cane. In a duty status report dated April 7, 2009, Dr. Blank advised that
appellant could work four hours a day and provided restrictions of one hour sitting, standing,
stooping and reaching above the shoulder; one to two hours walking; less than one hour pulling
and pushing; no climbing or kneeling; and five to six hours of simple grasping, with a weight
restriction of less than five pounds continuous.
By decision dated June 19, 2009, the Office found that appellant had been reemployed as
a modified carrier working 20 hours a week, effective April 20, 2007. It determined that his
actual part-time earnings represented his wage-earning capacity and reduced his compensation
accordingly.
On November 13, 2009 the employing establishment notified appellant that, following
guidelines set forth by the National Reassessment Process, it did not have limited duty within his
medical restrictions, and that he would be placed in leave-without-pay status effective
November 28, 2009. On November 13, 2009 appellant filed a claim alleging a recurrence of
disability that day when his limited duty was withdrawn. In letters dated December 21 and 30,
2

The Office hearing representative also affirmed a February 15, 2006 decision denying appellant’s request for
additional cervical surgery.

2

2009, the Office informed him of the requirements for modifying the loss of wage-earning
capacity determination. Appellant resubmitted Dr. Blank’s February 6, 2009 report.
By decision dated March 1, 2010, the Office found that appellant submitted insufficient
evidence to modify the June 19, 2009 wage-earning capacity decision and denied his claim for
total disability compensation beginning November 13, 2009.3
On June 22, 2010 appellant requested reconsideration, and submitted a work capacity
evaluation dated June 15, 2010 from Dr. Blank who advised that appellant had post-traumatic
cervical myelopathy from a work injury. He experienced chronic pain since the accident with
leg weakness as a result of unsuccessful surgery. Dr. Blank reported that appellant could not
walk for long distances due to poor balance and that his chronic condition was progressive in
nature. She stated that he had developed peripheral neuropathies as a result of diabetes and had
restless leg syndrome. Dr. Blank restricted sitting and repetitive movements of the wrists to less
than one to two hours; walking, standing, reaching, twisting, bending, stooping and pushing to
less than one hour and reaching above the shoulder to two hours.
In a nonmerit decision dated August 9, 2010, the Office denied appellant’s
reconsideration request on the grounds that he submitted no new arguments and that the evidence
submitted did not address the issue of whether he sustained a material worsening of the accepted
work-related conditions.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury, it has the burden of justifying a subsequent reduction of compensation
benefits.5 Section 8115(a) of the Act provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent his wage-earning capacity.6 Generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity,
must be accepted as such a measure.7 The formula for determining loss of wage-earning
capacity based on actual earnings, developed in the Albert C. Shadrick decision,8 has been
3

Appellant continued to receive compensation based on the June 19, 2009 wage-earning capacity decision.

4

Katherine T. Kreger, 55 ECAB 633 (2004).

5

Gregory A. Compton, 45 ECAB 154 (1993).

6

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

7

Lottie M. Williams, 56 ECAB 320 (20050.

8

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

3

codified at section 10.403 of the Office’s regulations. The Office calculates an employee’s
wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current
pay rate for the date-of-injury job.9
Office procedures provide that the Office can make a retroactive wage-earning capacity
determination if the claimant worked in the position for at least 60 days, the position fairly and
reasonably represented his or her wage-earning capacity and the work stoppage did not occur
because of any change in his injury-related condition affecting the ability to work.10 The
Office’s procedure manual provides guidelines for determining wage-earning capacity based on
actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonably represents his or her WEC [wage-earning capacity], the CE [claims
examiner] should consider whether the kind of appointment and tour of duty (see
FECA PM 2.900.3) are at least equivalent to those of the job held on date of
injury. Unless they are, the CE may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days, and reemployment of a term or transitional (USPS) worker in another term
or transitional position is likewise acceptable. However, the reemployment may
not be considered suitable when:
(1) The job is part time (unless the claimant was a part-time worker at the
time of injury) or sporadic in nature;
(2) The job is seasonal in an area where year-round employment is
available….
(3) The job is temporary where the claimant’s previous job was
permanent.”11
The procedures further provide: “[i]f a formal loss of wage-earning capacity decision has
been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance the [claims examiner] will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.”12
Chapter 2.814.11 of the procedure manual contains provisions regarding the modification
of a formal loss of wage-earning capacity. The relevant part provides that a formal loss of wageearning capacity will be modified when: (1) the original rating was in error; (2) the claimant’s
9

20 C.F.R. § 10.403(c).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (October 2009); Selden H. Swartz, 55 ECAB 272 (2004).
11

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

12

Id. at Chapter 2.814.9(a) (December 1995).

4

medical condition has changed; or (3) the claimant has been vocationally rehabilitated. Office
procedures further provide that the party seeking modification of a formal loss of wage-earning
capacity decision has the burden to prove that one of these criteria has been met. If the Office is
seeking modification, it must establish that the original rating was in error, that the injury-related
condition has improved or that the claimant has been vocationally rehabilitated.13
ANALYSIS -- ISSUE 1
On appeal appellant contends that the June 19, 2009 wage-earning capacity determination
was erroneous. The Office accepted that appellant sustained a left shoulder and left rhomboid
strain, herniated discs at C5-6 and C6-7 and a consequential fracture of the right humerus. At the
time of his injury, appellant worked full time as a letter carrier. The Office paid total disability
compensation beginning in November 2003.
On February 21, 2007 Dr. Limke advised that appellant could work four to six hours a
day, sitting, with simple grasping and lifting two pounds continuously for four hours daily, and
standing, walking with an assistive device, and pulling and pushing limited to one-half hour
daily, and no climbing, kneeling, bending, stooping, twisting or reaching above the shoulder. On
April 17, 2007 the employing establishment offered appellant a modified assignment answering
telephone calls for four hours daily, with physical requirements of using the hands to answer the
telephone. Appellant accepted the position and returned to work on April 20, 2007. By decision
dated June 19, 2009, the Office reduced his compensation based on its findings that his actual
part-time earnings fairly and reasonably represented his wage-earning capacity.
At the time of the June 19, 2009 decision, appellant had worked well over 60 days but
earnings used to make the wage-earning capacity determination were based on a part-time
position of four hours a day. The Office procedure manual provides that a formal wage-earning
capacity determination is generally not appropriate where an employee works full time when
injured but is reemployed in a part-time position14 In the case of Connie L. Potratz-Watson, the
Board found that the Office must address the issue and explain why a part-time position is
suitable for a wage-earning capacity determination, based on the specific circumstances of the
case.15 A review of the June 19, 2009 decision shows that the Office found that appellant’s
actual earnings in the modified position represented his wage-earning capacity without
addressing that the actual earnings were based on a part-time position when he was not a parttime employee when injured or the suitability of the part-time position.
Under the facts of this case, the modified work upon which the June 19, 2009 wageearning capacity determination was based did not fairly and reasonably represent appellant’s
wage-earning capacity and was erroneous. Appellant has established that modification of the
Office’s June 19, 2009 wage-earning capacity determination is warranted. Accordingly, the
Office decision dated March 16, 2010 will be reversed.

13

Id. at Chapter 2.814.11 (October 2009).

14

Supra note 11.

15

Connie L. Potratz-Watson, 56 ECAB 316 (2005). Compare L.M., Docket No. 07-1791 (issued July 22, 2008).

5

In light of the Board’s findings regarding the wage-earning capacity, the second issue on
appeal is rendered moot.
CONCLUSION
The Board finds that the June 16, 2009 wage-earning capacity determination was
erroneous, as the modified position on which it was based was part time in nature and the Office
failed to explain why it was appropriate to use actual earnings in a part-time position when the
evidence indicated that appellant was a full-time employee when injured. Thus, the Office
improperly denied modification by its March 1, 2010 decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 9 and March 1, 2010 be reversed.
Issued: July 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, West Sacramento, CA, )
Employer
)
____________________________________________ )
M.L., Appellant

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

Docket No. 15-1683
Issued: June 20, 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 August 3, 2015 appellant filed a timely appeal from a May 26, 2015 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.3

1

On August 3, 2015 appellant submitted a timely request for oral argument in connection with OWCP’s May 26,
2015 decision. By order issued on February 10, 2016, the Board denied appellant’s request for oral argument
because he offered no reason in support of his request. Order Denying Request For Oral Argument, Docket No. 151683 (issued February 10, 2016).
2
3

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with his appeal. The Board, however, has no jurisdiction to review evidence
on appeal which was not before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant received a $3,482.53 overpayment of compensation
for the period January 8 to February 7, 2015; and (2) whether OWCP properly found appellant at
fault in the creation of the overpayment and, therefore, not entitled to waiver of recovery.
On appeal appellant contends that his scheduled return to work was delayed and his leave
was extended because he had undergone another surgery.
FACTUAL HISTORY
On September 17, 2013 appellant, then a 46-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a left shoulder rotator cuff injury when his
shoulder popped on that day as he was picking up a package. He stopped work on the date of
injury.
OWCP initially denied the claim, but on January 7, 2014 it accepted appellant’s claim for
a left shoulder strain. It advised him that, to avoid an overpayment of compensation, he was to
immediately notify it of his return to work. OWCP further advised appellant that he was
required to return any check to OWCP which included a period during which he worked.
On June 2, 2014 appellant underwent authorized left shoulder arthroscopy superior
glenoid labral posterior section repair, acromioplasty, Mumford procedure, debridement of an
articular-sided cuff tear, and open biceps tenodesis for a superior and posterior glenoid labral
tears, partial thickness cuff tear, perilabral cyst impingement, and acromioclavicular arthritis.
Appellant received wage-loss compensation beginning June 2, 2014. On June 12, 2014
appellant elected to receive his compensation payments through direct deposit.4
On December 5, 2014 appellant underwent authorized left shoulder arthroscopic lysis of
subacromial and subdeltoid adhesions.
In a January 5, 2015 report, Dr. Richard D. Tortosa, a Board-certified orthopedic
surgeon, advised that appellant was unable to return to work until approximately
January 8, 2015. On February 5, 2015 he released appellant to return to work with no
restrictions on that date.
OWCP issued an electronic compensation payment on January 10, 2015 in the net
amount of $3,055.65, covering the period December 14, 2014 to January 10, 2015. It issued
another electronic compensation payment on February 7, 2015 in the net amount of $3,009.51,
covering the period January 11 to February 7, 2015.
On February 26, 2015 the employing establishment informed OWCP that appellant had
returned to work on January 7, 2015. On March 3, 2015 it confirmed that he had returned to full4

The record reflects that appellant began receiving wage-loss compensation beginning June 2, 2014 and that he
was placed on the periodic compensation rolls beginning June 29, 2014.

2

time light-duty work with no wage loss on January 8, 2015. The employing establishment noted
that appellant had been released to full-time full-duty work on February 5, 2015.
By letter dated March 4, 2015, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $3,482.53 from January 8 to
February 5, 2015 because he continued to receive disability compensation after his return to
work. It calculated the overpayment by noting that during the 31-day period from January 8 to
February 7, 2015 appellant received gross compensation in the amount of $3,810.77 based on a
daily gross compensation rate of $122.93. OWCP then subtracted $254.77 for health benefits,
$19.60 for basic life insurance, and $53.87 for optional life insurance for the same period to
calculate a total net overpayment of $3,482.53. It found that appellant was with fault in the
creation of the overpayment because he was aware or should have been reasonably aware that he
was not entitled to receive wage-loss compensation benefits after returning to full-time work.
OWCP requested that he complete an overpayment recovery questionnaire (Form OWCP-20)
and submit supporting financial documents. Additionally, it notified appellant 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. An overpayment worksheet dated March 4,
2015 determined that appellant was overpaid during the period January 8 to February 7, 2015 for
a total of $3,482.53.
Appellant did not respond to the preliminary overpayment determination. In a May 26,
2015 decision, OWCP finalized the preliminary overpayment determination, finding that
appellant had received an overpayment of compensation in the amount of $3,482.53 from
January 8 through February 5, 2015. It further found that he was at fault because he knowingly
accepted wage-loss compensation to which he was not entitled. OWCP directed that appellant
forward payment for the full amount or to contact it to make other repayment arrangements.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”6
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.7 OWCP regulations provide that compensation for wage loss due to

5

Supra note 2 at § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a); R.H., Docket No. 09-1981 (issued June 11, 2010).

3

disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.8
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.9 OWCP procedures provide that an overpayment in compensation is created when
a claimant returns to work, but continues to receive wage-loss compensation.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $3,482.53 for the period January 8 to February 7, 2015. OWCP accepted appellant’s claim
and paid appropriate wage-loss compensation benefits. Appellant returned to full-time light-duty
work on January 8, 2015. As of that date, he was no longer entitled to wage-loss compensation
benefits.11 After appellant returned to work, OWCP made automatic payments of compensation
in the net amount of $3,055.65 on January 10, 2015 and $3,009.51 on February 7, 2015. The
payments were made by direct deposit covering the period December 14, 2014 to
February 7, 2015.
OWCP calculated that for the 31-day period from January 8 to February 7, 2015,
appellant received an overpayment of compensation in the amount of $3,810.77, based on a daily
gross compensation rate of $122.93 less deductions for health benefits of $254.77, basic life
insurance of $19.60, and optional life insurance of $53.87, for a net compensation of $3,482.53.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received an overpayment of compensation in the amount of $3,482.53.
The Board notes that OWCP’s March 4, 2015 preliminary determination and May 26,
2015 decision revealed that the overpayment period ended on February 5, 2015. The
calculations provided, however, used February 7, 2015, in accordance with appellant’s
compensation history. Accordingly, the Board will affirm OWCP’s May 26, 2015 decision on
the issues of fact and amount of overpayment, but will modify the period of the overpayment to
January 8 to February 7, 2015.
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.12 The fact that the overpayment was the result of error by OWCP or another
8

20 C.F.R. § 10.500.

9

See R.W., Docket No. 13-1285 (issued November 13, 2013).

10

See Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2a (May 2004).
11

Supra notes 9 and 10.

12

Supra note 8 at § 10.433(a).

4

government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.13 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to creating an overpayment: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).14
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit involving a series of payments over several months
with clear knowledge that the payments were incorrect.15 It is not appropriate, however, to make
a finding that a claimant has accepted an overpayment via direct deposit until such time as a
reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentation such as a bank statement or notification from
OWCP or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.16
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
he accepted payments that he knew or reasonably should have known were incorrect. The Board
finds that he was without fault with regard to OWCP’s first direct deposit following his return to
work, but he was at fault in creating the overpayment resulting from the second such deposit.
OWCP records indicate that on January 10, 2015 appellant received a net direct deposit
payment of $3,055.65 for the period December 14, 2014 to January 10, 2015, and that on
February 7, 2015 he received a net direct deposit payment of $3,009.51 for the period January 11
to February 7, 2015. As explained, since appellant returned to work without wage loss on
January 8, 2015, he was not entitled to all of these payments. OWCP calculated that these
payments resulted in an overpayment of $3,482.53 for the period January 8 to February 7, 2015.
It found appellant at fault in creating the overpayment as he was aware or should have been
aware that he was not entitled to wage-loss compensation after his return to full-time work.
The Board has held that an employee who receives payments from OWCP in the form of
direct deposit is not at fault the first time incorrect funds are deposited into his or her account, as

13

Id. at § 10.435(a).

14

Supra note 12; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

15

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

16

Tammy Craven, 57 ECAB 689 (2006).

5

the acceptance of the resulting overpayment lacks the requisite knowledge.17 Previous cases
have held that receiving an erroneous direct deposit payment immediately following the
employee’s return to work does not necessarily create the requisite knowledge to find that a
claimant was at fault in the creation of the overpayment.18 However, the Board has found fault
in cases where incorrect payments were made over longer periods of time or for substantially
greater amounts than previously received.19 The Board has noted that an employee’s failure to
return an overpayment is immaterial to the issue of whether he was at fault in its creation.20
The Board finds that appellant was without fault regarding the first direct deposit
payment which he received on January 10, 2015 in the amount of $3,055.65, covering the period
December 14, 2014 to January 10, 2015. While appellant accepted the overpayment by gaining
control of the funds deposited into his account pursuant to his authorization, he did not know that
he would receive an incorrect payment on that day. Unlike the situation in which a claimant
receives a physical check and is aware of the amount of the payment before depositing it into his
account, he was not on notice of the amount of the payment until after it was deposited
electronically into his account.21 OWCP has not presented sufficient evidence to establish that
appellant accepted a payment at the time of deposit which he knew or should have known to be
incorrect.22 Appellant had no reason to suspect at the time of the January 10, 2015 deposit that
OWCP had issued an incorrect payment since this was the first payment made. Thus, the Board
finds that he was not at fault in creating that portion of the overpayment received on
January 10, 2015. A finding that appellant was not at fault with respect to the January 10, 2015
direct deposit payment does not establish that he was entitled to waiver of recovery of that
portion of the overpayment and therefore the case shall be returned to OWCP. On return of the
case record, OWCP should properly consider the issue of waiver of this portion of the
overpayment.23
The Board finds, however, that appellant was at fault in the creation of the overpayment
resulting from the February 7, 2015 direct deposit. In a January 7, 2014 letter, appellant was
notified that, to avoid an overpayment of compensation, he must immediately notify OWCP of
his return to work. Appellant was required to return any check to OWCP which included a
period during which he worked. After his receipt of the first direct deposit following his return
to work, he was on notice that OWCP was making payments to him in error. Appellant knew or
should have known that he was not entitled to the benefit of subsequent direct deposits. When he
17

Id.

18

V.S., Docket No. 13-1278 (issued October 23, 2013); W.P., 59 ECAB 514 (2008).

19

W.P., id.

20

Id. (that appellant spent the money or had more than ample opportunity to return it before the preliminary
finding of fault is immaterial to whether he was at fault in creating the overpayment).
21

W.P., supra note 18.

22

V.A., Docket No. 12-637 (issued August 27, 2012).

23

See D.B., Docket No. 14-397 (issued June 3, 2014); M.F., Docket No. 12-456 (issued November 13, 2012);
supra note 16.

6

received the second deposit on February 7, 2015 in the amount of $3,009.51 for the period
January 11 to February 7, 2015, he had been back at work since January 8, 2015 and would have
had no expectation of that compensation. In light of OWCP’s clear mandate to provide
notification of a return to work and to return any payment received, which included a period
during which appellant worked, a reasonable person would have known that an overpayment had
occurred. Appellant had the benefit of reviewing bank statements reflecting his receipt of this
additional compensation payment. The Board finds that he knew or should have known that the
February 7, 2015 deposit covering the period January 11 to February 7, 2015 was in error.24
Appellant had an obligation to return payments that he knew or should have known were
incorrect.25 Therefore, he was at fault in creating this portion of the overpayment and is not
entitled to waiver of recovery of the overpayment.26
CONCLUSION
The Board finds appellant received a $3,482.53 overpayment of compensation for the
period January 8 to February 7, 2015. The Board finds that OWCP’s finding of fault for the
portion of the $3,482.53 overpayment for the period December 14, 2014 to January 10, 2015 is
reversed and the case is remanded to OWCP to determine whether waiver of the recovery of the
overpayment is warranted. The Board finds, however, that OWCP properly found that appellant
was at fault for the remaining portion of the $3,482.53 overpayment for the period January 11 to
February 7, 2015 and, therefore, ineligible for waiver of the recovery.

24

Neill D. Dewald, 57 ECAB 451 (2006).

25

Id.

26

The Board does not have jurisdiction to review the recovery of the overpayment. The Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation under FECA. See 20
C.F.R. § 10.441(a); L.D., 59 ECAB 673 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed as modified in part and reversed in part, and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: June 20, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BAY PINES VETERANS MEDICAL CENTER,
Bay Pines, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 14-893
Issued: February 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 10, 2014 appellant filed a timely appeal from a January 13, 2014 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 merits of this case.
ISSUES
The issues are: (1) whether appellant received a $4,376.36 overpayment of compensation
for the period July 28, 2011 through October 13, 2013, for which he was not at fault; (2) whether
1

Included with appellant’s appeal was a timely request for oral argument. By order dated November 10, 2014,
the Board denied appellant’s request on the grounds that his arguments could be adequately addressed in a decision
based on review of the case record. Order Denying Request for Oral Argument, Docket No. 14-893 (issued
November 10, 2014).
2

5 U.S.C. § 8101 et seq.

the overpayment is subject to waiver of recovery; and (3) whether OWCP properly withheld
$95.00 from appellant’s continuing compensation payments beginning December 15, 2013.
On appeal, appellant contends that his spouse was put on his health insurance plan on
November 26, 2012, not July 28, 2011. Thus, he argues the period of overpayment is erroneous.
FACTUAL HISTORY
On December 10, 2010 appellant, then a 57-year-old health aid, filed an occupational
disease claim alleging that he sustained injuries as a result of doing his regular duties, which
included picking up garbage, moving and flipping mattresses, and wiping down beds with
chemicals, which he inhaled. OWCP accepted the claim for Teitze’s Disease (costochondritis)
and bilateral rotator cuff syndrome and paid appropriate benefits. Appellant stopped work on
July 28, 2011 and was eventually placed on the periodic compensation rolls. Effective
October 14, 2013, he was employed as a laundry worker for the employing establishment.3
On October 26, 2012 appellant elected to change from code number 111 (single
coverage) to code 112 (family coverage) because his spouse was to lose her nonfederal plan
effective November 4, 2012.
On June 17, 2013 the Federal Employees Health Benefits (FEHB) program issued a
Notice of Change in Health Benefits Enrollment code number 111 from the employing
establishment to OWCP effective July 28, 2011. In a June 17, 2013 letter, OWCP notified the
employing establishment to transfer the enrollment code 111 effective July 28, 2011 as that was
the first date of continuous total disability. A copy of the letter was sent to appellant and his
attorney of record.
On October 25, 2013 OWCP made the preliminary determination that appellant was
overpaid benefits in the amount of $4,376.36 because it had deducted health premium code 111
and due to a change in his spouse’s coverage, he should have had premiums deducted for code
112 during the period July 28, 2011 through October 13, 2013. A calculation of the original
payment for health benefits premium code 111 for the period July 28, 2011 through October 13,
2013 and the corrected entitlement for health benefits premium code 112 for the same period was
provided. OWCP further determined that appellant was not at fault in the creation of the
overpayment. It instructed him of his right to disagree with the amount of the overpayment or to
request waiver of the overpayment and instructed him of the procedures for doing so. OWCP
noted that appellant had 30 days to submit the requested information and notified him that under
20 C.F.R. § 10.438 failure to submit the requested information within 30 days would result in the
denial of waiver. No response to the preliminary decision or additional financial documents
were received.

3

By decision dated January 6, 2014, OWCP determined that the position of laundry worker fairly and reasonably
represented appellant’s wage-earning capacity. By decision dated January 23, 2014, it found that he was overpaid
$275.26 for the period October 14 through 19, 2013 for which he was without fault. As appellant has not appealed
these decisions or set forth arguments pertaining to the issues in these decisions, the Board will not address these
issues on appeal.

2

By decision dated January 13, 2014, OWCP finalized the determination that appellant
received an overpayment of compensation in the amount of $4,376.36 for the period July 28,
2011 through October 13, 2013; that he was not at fault in the creation of the overpayment; that
waiver was denied; and that the debt could be collected by deducting $95.00 from his continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.4 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.5
An employee entitled to disability compensation may continue his or her health benefits
under the FEHB program. The regulation of the Office of Personnel Management (OPM), which
administers the FEHB program, provides guidelines for registration, enrollment, and
continuation of enrollment for federal employees.
In this connection, 5 C.F.R.
§ 890.502(a)(1) provides that an employee or annuitant is responsible for payment of the
employee or annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs indebtedness due the United States in the
amount of the proper employee or annuitant withholding required for each pay period that health
benefit withholdings or direct premium payments are not made but during which the enrollment
continues.6
In addition 5 C.F.R. § 890.502(c) provides that an agency that withholds less than or
none of the proper health benefits contributions from an individual’s pay, annuity, or
compensation must submit an amount equal to the sum of the uncollected deductions and any
applicable agency contributions required under section 8906 of Title 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.7
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.8 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.9 The Board has recognized that, when an under withholding of health insurance

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

5 C.F.R. § 890.502(a)(1).

7

Id. at § 890.502(c).

8

Id. at § 890.502(a)(1).

9

Id.

3

premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.10
ANALYSIS -- ISSUE 1
The Board finds that this case not in posture for decision. Effective July 28, 2011,
appellant’s health benefits were transferred from the employing establishment’s to OWCP’s
payroll office. Appellant was under single coverage (code 111) until he elected family coverage
(code 112) effective November 4, 2012. However, deductions were not made from his monetary
compensation until October 13, 2013. Once OWCP learned that appellant had health insurance,
but no deductions had been made for the premiums for family coverage, it advised him that he
had been paid an incorrect rate and that an overpayment was created.
Appellant does not dispute that he received an overpayment. However, he disputes the
amount of the overpayment noting family coverage was added in November 2012, not on
July 28, 2011. OWCP’s calculation of overpayment correctly notes he was paid health benefits
premiums code 111 for the period July 28, 2011 through October 13, 2013. However, it
incorrectly finds that appellant was entitled to health benefits premiums code 112 for the period
July 28, 2011 through October 13, 2013. The record establishes that he was entitled to health
benefits premiums code 112 on or after November 4, 2012. Accordingly, OWCP did not provide
a proper calculation of the overpayment amount for the period July 28, 2011 through
October 13, 2013. A recalculation on the period and amount of compensation appellant was
entitled to code 112 family health benefits is required to determine the proper amount of
overpayment.11
CONCLUSION
The Board finds that the case is not in posture for decision as OWCP improperly
determined the period and amount of compensation appellant was entitled to code 112 family
health benefits. Accordingly, the amount of overpayment cannot be determined and the issues
pertaining to waiver and recovery from continuing compensation benefits are premature.

10

See James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39
ECAB 1377 (1988); 5 C.F.R. § 890.502.
11

In light of the fact the amount of overpayment cannot be determined, the issues pertaining to waiver and
repayment of compensation is premature.

4

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2014 decision of the Office of
Workers’ Compensation Programs is vacated and remanded for further instructions consistent
with this decision.
Issued: February 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1015
Issued: January 10, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal from the January 12, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty, causally related to his employment.
FACTUAL HISTORY
On July 2, 2008 appellant, a 62-year-old electronics technician, filed an occupational
disease claim (Form CA-2) for carpal tunnel syndrome, which he attributed to his employment
duties. He first became aware of his condition on July 1, 2005. Appellant realized his carpal
tunnel was caused by his federal employment on May 30, 2008. On June 13, 2008 he attributed
his carpal tunnel condition to repetitive hand and wrist motions required while repairing
electronic equipment and using a vacuum cleaner to clean equipment.

By letter dated July 25, 2008, the employing establishment controverted appellant’s
claim, noting that the duties he performed were not for extended periods of time.
By decision dated September 29, 2008, the Office denied appellant’s claim. It accepted
the employment factors he deemed responsible for his condition but found the evidence of record
insufficient to establish causal relation.
On October 8, 2008 appellant requested reconsideration.
Appellant submitted diagnostic tests and a June 30, 2008 report from Dr. Suresh G.
Kumar, a Board-certified internist, who advised that a nerve conduction study revealed bilateral
carpal tunnel syndrome and bilateral ulnar neuropathy.
On September 5, 2008 Dr. David Weinsweig, a Board-certified neurosurgeon, listed
findings on examination, reviewed appellant’s history of injury and diagnosed peripheral
entrapment syndrome. Dr. Weinsweig noted that appellant used his hands quite a bit at work and
attributed the diagnoses to appellant’s job duties caused by chronic repetitive use of his arms and
hands.
By decision dated October 30, 2008, the Office denied the claim finding that the medical
evidence did not establish that his hand or wrist condition was caused by the accepted
employment factors.
On October 19, 2009 appellant, through his attorney, requested reconsideration.
In a September 24, 2009 report, Dr. Luis Bolano, a Board-certified orthopedic surgeon,
presented findings on examination and diagnosed carpal tunnel and cubital tunnel syndromes.
He opined that appellant’s condition was clearly occupationally related because the work
environment and work-related symptoms met the criteria for an occupationally-related disease
process.
By decision dated January 12, 2010, the Office denied modification of its October 30,
2008 decision finding that the medical evidence did not establish that the accepted employment
factors caused appellant’s diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

2

based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
The Office accepted that appellant performed employment duties such as repairing and
cleaning electronic equipment. It denied his carpal tunnel condition claim as causally related to
the accepted employment factors. Causal relationship is a medical issue that can only be
established by probative medical opinion evidence. The Board finds that appellant has not
submitted sufficient medical evidence to establish causal relationship.
The treating physicians of record did not provide a comprehensive history of the
employment factors alleged or how the accepted factors would cause or contribute to carpal
tunnel syndrome or entrapment neuropathy. While Dr. Weinsweig noted that appellant used his
hands quite a bit at work, he did not describe appellant’s specific employment duties or tasks.
He did not address the periods of time such duties were performed or how they were competent
to cause entrapment syndrome. Dr. Weinsweig’s conclusion that the conditions he diagnosed
were caused by appellant’s use of his arms and hands, is not sufficiently rationalized as it is
unsupported by medical rational or based on a complete and accurate factual background.
Dr. Bolano stated that appellant’s condition was clearly occupationally related given the
work environment and work-related symptoms that met the criteria for an occupationally-related
4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

disease process. He did not define the “criteria for an occupationally-related disease process” or
explain how specific aspects of appellant’s duties would cause cubital or carpal tunnel syndrome.
Dr. Bolano did not discuss or describe the accepted employment factors or how the conditions he
diagnosed related to repairing electronic equipment. His opinion is not sufficiently rationalized
to support appellant’s claim.
Dr. Kumar addressed the results of diagnostic studies but offered no opinion regarding
causal relationship. For these reasons, her reports are not sufficient to establish causal
relationship.
An award of compensation may not be based on surmise, conjecture or speculation.8
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.9 The Board has held that the fact that a condition manifests itself or
worsens during a period of employment10 or that work activities produce symptoms revelatory of
an underlying condition11 does not raise an inference of causal relationship between a claimed
condition and employment factors.
Because the medical evidence contains no reasoned discussion of causal relationship, one
that, soundly explains how the accepted employment factors caused or aggravated a diagnosed
medical condition, the Board finds that appellant has not established the essential elements of
causal relationship.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty, causally related to his employment.

8

Edgar G. Maiscott, 4 ECAB 558 (1952).

9

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

10

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

11

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 10, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Capitol Heights, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2148
Issued: February 17, 2009

Oral Argument January 7, 2009

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

JURISDICTION
On July 31, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 30, 2008. 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 an overpayment of $24,017.83 was
created; (2) whether the Office properly denied waiver of the overpayment and (3) whether the
Office properly determined the overpayment should be recovered by deducting $100.00 from
continuing compensation payments.
FACTUAL HISTORY
The Office accepted that appellant sustained an injury in the performance of duty on
September 25, 1990. Appellant filed a notice of recurrence of disability and began receiving
compensation for temporary total disability as of January 12, 1998. The Office did not deduct
premiums for health benefit insurance. On February 18, 1999 appellant returned to work in a

full-time light-duty position. The employing establishment requested the Office transfer health
benefits back to the agency. Appellant underwent surgery on March 21, 2000 and filed a claim
for compensation commencing March 13, 2000. She began receiving compensation for
temporary total disability and again no deductions for health benefit insurance premiums were
made.
In a December 10, 2007 memorandum of telephone call, the Office indicated that
appellant stated that she was notified that her health benefit coverage had been cancelled
December 1, 2007. It determined that she had been enrolled for health benefit insurance under
code 105.
By letter dated March 7, 2008, the Office advised appellant that it preliminarily
determined an overpayment of $24,017.83 was created from January 12, 1998 to January 19,
2008 based on the failure to deduct health benefit premiums. Appellant was found not to be at
fault in creating the overpayment and the Office enclosed an overpayment recovery
questionnaire (OWCP-20).
Appellant submitted the OWCP-20 on April 30, 2008. She indicated that her income was
$2,056.00 per month based on her compensation payment and she had expenses of $1,440.00 per
month. With respect to assets, appellant indicated that she did not have stocks, bonds or real
estate and she reported $2.00 in a savings account.
By decision dated April 30, 2008, the Office finalized its preliminary determination of a
$24,017.83 overpayment of compensation. It denied waiver on the grounds that recovery would
defeat the purpose of the Act or be against equity and good conscience. In addition, the Office
found the overpayment would be recovered by deducting $100.00 from continuing
compensation.
LEGAL PRECEDENT -- ISSUE 1
The regulation of the Office of Personnel Management (OPM), which administers the
Federal Employee Health Benefits (FEHB) Program, provides guidelines for the registration,
enrollment and continuation of enrollment for federal employees. In this connection, 5 C.F.R.
§ 890.502(b)(1) provides: “An employee or annuitant is responsible for payment of the
employee’s share of the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct premium
payments are not made but during which the enrollment of an employee or annuitant continues,
he or she incurs an indebtedness due to the United States in the amount of the proper employee
withholding required for that pay period.”
In addition, 5 C.F.R. § 890.502(d) provides: “An agency that withholds less than or none
of the proper health benefits contributions from an individual’s pay, annuity or compensation
must submit an amount equal to the sum of the uncollected deductions and any applicable
agency contributions required under section 8906 of the title, 5 United States Code, to OPM for

2

deposit in the Employees’ Health Benefits Fund.” When the Office deducts less than the proper
health benefit premium for the coverage selected, an overpayment of compensation is created.1
ANALYSIS -- ISSUE 1
The overpayment in this case is based on the failure to deduct health benefit insurance
(HBI) premiums. Appellant does not dispute that she was enrolled under code 105 of the FEHB
program for the period commencing January 12, 1998 and no evidence was provided of a written
cancellation of coverage by her. Since HBI deductions were not made from compensation
payments commencing January 12, 1998, an overpayment of compensation was created.
As to the amount of the overpayment, the case requires further clarification from the
Office. The record indicated that appellant did return to work in February 1999 and stopped
working in March 2000.2 The preliminary determination and the final Office decision do not
acknowledge that she had returned to work during this period and did not receive continuing
compensation. It is not clear whether the worksheet calculating the amount of the overpayment
properly accounted for the period February 1999 to March 2000, as it reports the compensation
period covered as January 12, 1998 to January 19, 2008. If appellant was not entitled to
compensation for a period after January 12, 1998, then no HBI deductions would be appropriate
and the period should not be included in calculating the overpayment amount. On remand the
Office should make proper findings as to any periods that appellant worked after January 12,
1998 and clearly explain how the amount of the overpayment was calculated. After such further
development as it deems necessary, the Office should issue an appropriate decision on the
amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.3 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
[the Act] or would be against equity and good conscience.”4 Since the Office found appellant to
be without fault in the creation of the overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.

1

See John Skarbek, 53 ECAB 630 (2002).

2

Appellant alleged that she worked during periods covered by the overpayment, but it is not clear whether she
returned to work after March 2000.
3

Robert Atchison, 41 ECAB 83 (1989).

4

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361 (1994).

3

Section 10.436 of the implementing regulations5 provides that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause hardship to a currently
or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined (by the Office) from data furnished by the Bureau of
Labor Statistics.6 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.7
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.8
ANALYSIS -- ISSUE 2
The financial information submitted by appellant on the OWCP-20 indicated that she had
$2,056.00 in monthly income and $1,440.00 in monthly expenses. Based on this evidence,
appellant did not need substantially all of her current income to meet current living expenses.
Her monthly income exceeded her expenses by more than $50.00 and therefore she did not need
substantially all her current income to meet ordinary and necessary living expenses. On appeal,
appellant indicated that she had additional expenses. The Board’s jurisdiction is limited to
evidence that was before the Office at the time of the final decision.9 The evidence before the
Office at the time of the April 30, 2008 decision does not establish that recovery of the
overpayment would defeat the purpose of the Act. In addition, the evidence does not establish
that recovery would be against equity and good conscience, since it did not show appellant
would experience severe financial hardship in attempting to repay the debt.
The Board accordingly finds the evidence of record does not show recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience. In
accord with the Act and its regulations, the Office properly denied waiver of the overpayment.

5

20 C.F.R. § 10.436 (1999).

6

An individual’s assets must exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual
with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment; see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6 (October 2004).
7

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

8

20 C.F.R. § 10.437 (1999).

9

20 C.F.R. § 501.2(c) (2008).

4

LEGAL PRECEDENT -- ISSUE 3
The Office’s regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize hardship.”10
ANALYSIS – ISSUE 3
In this case the Office noted that appellant had additional income over expenses as
outlined in the OWCP-20. Based on this evidence, it found she could repay the overpayment by
deducting $100.00 from continuing compensation. While appellant contends that recovery of the
overpayment at this rate causes financial hardship, the Office based its decision on the relevant
evidence of record. The Office took into account the financial circumstances as reported on the
OWCP-20. The evidence showed approximately $600.00 in excess monthly income over
expenses and it set the recovery at $100.00 from continuing compensation payments. There is
no evidence the Office failed to follow its regulations in this case.
CONCLUSION
The evidence established an overpayment of compensation based on the failure to deduct
HBI premiums. Appellant was not entitled to waiver of the overpayment based on the relevant
financial information and the Office properly recovered the overpayment by deducting $100.00
from continuing compensation payments. The case will be remanded for further development as
to the amount of the overpayment.

10

20 C.F.R. § 10. 441.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2008 is affirmed with respect to fact of overpayment,
denial of waiver and recovery from continuing compensation. The decision is set aside and the
case remanded for further development as to the amount of the overpayment.
Issued: February 17, 2009
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

6