United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Nogales, AZ, Employer

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

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Docket No. 17-1689
Issued: December 4, 2018

Case Submitted on the Record

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

JURISDICTION
On August 2, 2017 appellant filed a timely appeal from a February 21, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 21, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury on
August 16, 2016 in the performance of duty, as alleged.
FACTUAL HISTORY
On August 17, 2016 appellant, then a 32-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on August 16, 2016 he fainted due to loss of consciousness
and sustained an abrasion on the left side of his face as a result of hitting the floor while in the
performance of duty. He did not stop work.
An authorization for examination and/or treatment (Form CA-16), was issued by the
employing establishment on August 16, 2016, which authorized appellant to obtain medical
treatment at Holy Cross Hospital in Tucson, Arizona. In a report dated August 16, 2016,
Dr. Matthew Lopez, an attending emergency medicine physician, diagnosed atrial fibrillation and
syncope. He released appellant to regular work effective August 19, 2016 and advised him to
follow-up with his primary care provider and return to the hospital if his symptoms returned.
An emergency services report dated August 16, 2016 indicated that appellant had fainted
and was found lying on the floor.
In a hospital report dated August 16, 2016, Sarah E. Everhart, a registered nurse, noted that
appellant presented to the emergency department after a syncopal episode at work which had
occurred at approximately 7:15 a.m. that day. Appellant had abrasions on the left side of his face
and stated that he was sitting down when he felt bradycardic, lightheaded, and “blacked out.”
On August 16, 2016 Dr. Melanie S. Kuhlman, an emergency medicine specialist, reviewed
a chest x-ray and found no acute cardiopulmonary disease. The cardio mediastinal silhouette was
unremarkable and the lungs were clear with no focal areas of consolidation, pleural effusion, or
pulmonary edema.
In a September 6, 2016 letter, OWCP notified appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries. Appellant did not
respond.
By decision dated October 7, 2016, OWCP accepted that the August 16, 2016 incident
occurred as alleged, but denied appellant’s claim, finding that he failed to submit evidence
containing a medical diagnosis in connection with the injury or events. Thus, it concluded that he
had not established fact of injury.
On October 28, 2016 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
Appellant submitted an August 18, 2016 report from Dr. Rajen Desai, a Board-certified
cardiologist, who diagnosed vasovagal attack and paroxysmal atrial fibrillation. Dr. Desai
indicated that appellant presented for follow-up after he was seen in the Holy Cross Hospital for
an episode of syncope. Appellant stated that he was talking to coworkers, started to get
2

lightheaded, felt like everything was “closing in,” and then fell face first to the ground and this
resulted in an abrasion. Dr. Desai noted that appellant was taken to Holy Cross Hospital where
his workup was essentially negative.
On August 18, 2016 Dr. Katie Grund, a Board-certified family practitioner, diagnosed
syncopal episodes, acute stress reaction, and low back pain. She noted that appellant was
reportedly trying to stop a human trafficker while at work when he was injured. The assailant was
in a car and appellant was on foot in front of the car when the assailant tried to escape and drove
towards appellant. Appellant jumped to get out of the way and slipped on loose gravel and ended
up falling on his right low back and buttocks area. He related that he was able to get up right after
the injury and took two days off of work. Appellant then reported that he passed out the following
day at work. He stated that he was standing and talking to coworkers and then started to feel hot
and fuzzy-headed and then developed tunnel vision. Appellant sat down and then slumped
forward, striking his head on the floor. He stated that he hit his head and was unconscious for
approximately 30 to 60 seconds. Dr. Grund indicated that appellant had an abrasion on his face
from hitting the floor over the left eye/temple area. She noted that appellant’s cardiologist agreed
with the diagnosis of vasovagal episode and cleared him back to work from a cardiac standpoint.
Dr. Grund also released appellant to return to work that day.
In an October 26, 2016 report, Dr. Desai noted that appellant was evaluated on August 18,
2016 after he had a syncopal episode at work, which resulted in a fall and an abrasion. He opined
that appellant’s diagnosis of vasovagal syncope was “likely as a result of a traumatic experience
he suffered prior to the episode” and “was not caused by a preexisting condition or a medication
interaction.”
On October 26, 2016 Dr. Grund noted that she saw appellant on August 18, 2016 for a
follow-up from a syncopal episode that occurred while he was at work on August 16, 2016. She
reiterated that he passed out from a seated position for approximately 30 to 60 seconds. Dr. Grund
noted that appellant was taken to Holy Cross Hospital and his heart rate was initially low and in a
normal rhythm, but then due to the stress of the event his paroxysmal atrial fibrillation started.
Appellant took his as-needed medication and the abnormal rhythm stopped immediately.
Dr. Grund opined that appellant’s syncopal episode was not related to his atrial fibrillation. She
further opined that it was caused by vasovagal syncope, which was common and typically benign,
and could be bought on by dehydration, exhaustion, stress reaction like seeing blood or phobias,
head or cold exposure, or standing for long periods of time. Dr. Grund noted that appellant had
classic symptoms of vasovagal syncope, including tunnel vision, sensation of heat, and nausea
prior to passing out. Additionally, there was no witnessed seizure activity and when he came out
of the episode, appellant was not confused. Dr. Grund concluded that his vitals, including low
blood pressure and low heartbeat, were all conclusive of the diagnosis of vasovagal syncope.
By decision dated February 21, 2017, an OWCP hearing representative conducted a review
of the written record and affirmed, as modified, the prior decision finding that appellant had
submitted evidence containing a medical diagnosis in connection with the injury or events, but had
failed to submit sufficient factual evidence to establish that the injury and/or events occurred in
the performance of duty, as alleged, on August 16, 2016.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed, that an injury was
sustained in the performance of duty as alleged, and that any disability or medical condition for
which compensation is claimed is causally related to the employment injury.3 These are the
essential elements of every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.4
It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA.5 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. However, as the Board has made equally clear,
the fact that the cause of a particular fall cannot be ascertained or that the reason it occurred cannot
be explained, does not establish that it was due to an idiopathic condition.6
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general rule.7
OWCP has the burden of proof to submit medical evidence showing the existence of a personal,
nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic in nature.8
If the record does not establish that the particular fall was due to an idiopathic condition, it must
be considered as merely an unexplained fall, one which is distinguishable from a fall in which it
is definitely proved that a physical condition preexisted and caused the fall.9
ANALYSIS
The Board finds that this case is not in posture for decision.
On his claim form, appellant alleged that he was injured as a result of falling and hitting
the floor on August 16, 2016 after he lost consciousness while in the performance of duty. As

3

Steven S. Saleh, 55 ECAB 169 (2003).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Carol A. Lyles, 57 ECAB (2005).

6

M.M., Docket No. 08-1510 (issued November 25, 2008).

7

Dora Ward, 43 ECAB 767 (1992).

8

P.P., Docket No. 15-0522 (issued June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).

9

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

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previously noted, OWCP bears the burden of proof to establish an idiopathic fall.10 In L.J.,11 the
Board found that OWCP failed to prove that a fall was idiopathic in nature because the medical
evidence failed to establish that the employee’s fall was solely the result of a nonoccupational
orthostatic hypotension condition. The Board determined that the medical evidence of record
demonstrated that the claimant’s employment activities of bending over and stooping down, at
least partially, contributed to her falling at work.
Similarly, in this case, the Board finds that the medical evidence of record fails to show
that appellant’s fall was solely the result of a personal, nonoccupational pathology. Various
medical records, including Dr. Desai’s August 18 and October 26, 2016 reports and Dr. Grund’s
August 18 and October 26, 2016 reports, describe how appellant was reportedly trying to stop a
human trafficker while at work when he slipped on loose gravel and fell down. Appellant took
two days off of work and then reported that he “passed out the following day at work.” He was
standing and talking to coworkers when he started to feel hot and fuzzy-headed and developed
tunnel vision. Appellant sat down, slumped forward, and then hit his head on the floor and was
out for about 30 to 60 seconds. None of the physicians opined that the incident resulted from a
preexisting condition. The mere fact that an employee has a preexisting medical condition, without
supporting medical rationale to establish that it was the cause of the employment incident, is
insufficient to establish that a fall is idiopathic.12 The medical evidence of record demonstrates
that appellant was standing at work and sat down after he got tunnel vision when the fall occurred.
Therefore, while the reports are insufficient to meet appellant’s burden of proof to establish his
claim, they raise an uncontroverted inference that employment factors contributed to the work
incident on August 16, 2016.13
Moreover, the Board notes that the factual evidence also supported that employment
conditions contributed to appellant’s fall at work. An emergency services report dated August 16,
2016 indicated that appellant had fainted and was found lying on the floor and a hospital report
dated August 16, 2016 stated that appellant presented to the emergency department after a
syncopal episode at work which had occurred at approximately 7:15 a.m. that day. Appellant had
abrasions on the left side of his face and stated that he was sitting down when he felt bradycardic,
lightheaded, and “blacked out.” Accordingly, the record does support that conditions of
employment did contribute, at least partially, to appellant’s alleged fall on August 16, 2016.14
If the record does not establish that a particular fall was due to an idiopathic condition, it
must be considered as merely an unexplained fall, one which is distinguishable from a fall in which
it is definitely proved that a physical condition was preexisting and caused the fall.15 The Board
finds that OWCP has failed to meet its burden to establish that appellant’s seated fall onto his face
10

See supra notes 6-8.

11

Docket No. 08-1415 (issued December 22, 2008).

12

See supra note 3.

13

See E.C., Docket No. 16-1334 (issued February 8, 2017).

14

Id.

15

Id.

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at work was of an idiopathic nature with no contribution or intervention from employment
factors.16 The evidence of record is sufficient to require OWCP to further develop the medical
evidence and the case record.17
Accordingly, the case will be remanded for OWCP to determine whether appellant
sustained an injury causally related to the August 16, 2016 employment incident, and if so, to also
determine the nature and extent of disability, if any.18
CONCLUSION
The Board finds that this case is not in posture for decision.

16

R.D., Docket No. 13-1854 (issued December 23, 2014).

17

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

18

The record contains a Form CA-16 signed by the employing establishment official on July 10, 2017. When the
employing establishment properly executes a CA-16 form which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a CA-16 form is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of
Workers’ Compensation Programs is reversed in part and set aside in part and the case is remanded
to OWCP for further action consistent with this decision of the Board.
Issued: December 4, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pismo Beach, CA, Employer
__________________________________________

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

Docket No. 09-2143
Issued: May 17, 2010

Case Submitted on the Record

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

JURISDICTION
On August 20, 2009 appellant filed a timely appeal from a June 17, 2009 merit decision
of the Office of Workers’ Compensation Programs granting a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a one percent permanent impairment of the
left upper extremity for which she received a schedule award.
FACTUAL HISTORY
This case was previously before the Board. On June 10, 1998 the Board affirmed the
Office’s termination of appellant’s compensation and entitlement to medical benefits for the

accepted conditions of right and left lateral epicondylitis and left thumb osteoarthtiris.1 The
Board affirmed the Office’s finding that she was not entitled to a schedule award for a permanent
impairment of the left hand. In a decision dated March 22, 2001, the Board affirmed a July 27,
1999 decision denying appellant’s request to reopen her case for further review of the merits
under 5 U.S.C. § 8128.2 The findings of fact and conclusions of law from the prior decisions are
hereby incorporated by reference.
On November 27, 2007 appellant filed a claim for a schedule award.3 In an impairment
evaluation dated January 14, 2008, Dr. Frederick R. Young, an orthopedic surgeon, reviewed her
history of surgeries for a left thumb injury, including a fusion of the carpometacarpal (CMC)
joint, a refusion on January 16, 1998, and the removal of hardware on March 24, 1998 and
June 18, 2003. For the left and right elbows, Dr. Young measured 150 degrees flexion, 0 degrees
extension, 80 degrees pronation and 80 degrees supination, which he found yielded no elbow
impairment.4 For the left thumb, he found that 80 degrees flexion and 10 degrees extension of
the interphalageal (IP) joint yielded no impairment and 70 degrees flexion and 0 degrees
extension of the metacarpophalangeal (MP) joint yielded no impairment.5 For the CMC joint,
Dr. Young determined that 45 degrees abduction and 1 degrees adduction yielded no
impairment.6 He found, however, that left thumb opposition of six centimeters yielded a three
percent impairment of the thumb.7 Dr. Young determined that a three percent impairment of the
thumb yielded a one percent hand impairment.8 He further measured no loss of range of motion
of either the right thumb or the remaining fingers of either hand.9 Citing the A.M.A., Guides,
Dr. Young concluded that appellant had a one percent impairment of the left hand which equaled
a one percent permanent impairment of the left upper extremity. He indicated that she reached
maximum medical improvement on August 27, 2007.

1

Docket No. 96-1883 (issued June 10, 1998). The Office accepted appellant’s June 28, 1994 occupational
disease claim, assigned file number xxxxxx236, for right lateral epicondylitis and left thumb osteoarthritis. It further
accepted that she sustained left lateral epicondylitis under a subsidiary file assigned file number xxxxxx724. The
Office also accepted that appellant sustained right lateral epicondylitis under subsidiary file number xxxxxx230.
Both subsidiary files are closed.
2

Docket No. 00-748 (issued March 22, 2001).

3

By decisions dated March 22, 2004 and April 20, 2005, the Office denied appellant’s claim for compensation
from November 2, 2002 to November 4, 2003 and December 26, 2002 onward on the grounds that the medical
evidence was insufficient to establish disability from employment. In decisions dated August 9, 2005 and
December 29, 2006, the Office denied her claim for compensation after November 14, 2003.
4

American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) at 472, 474,
Figures 16-34, 16-37.
5

Id. at 456, 457, Figures 16-12, 16-15.

6

Id. at 459, Figures 16-18a, 16-18b.

7

Id. at 460, Table 16-9.

8

Id. at 438, Table 16-1.

9

Id. at Figures 16-32 to 16-27 and 16-10 to 16-15 on pages 450-54, 470-74 and 454-66.

2

On December 1, 2008 an Office medical adviser concurred with Dr. Young’s finding of a
three percent impairment of the left thumb due to loss of opposition according to Table 16-9 on
page 460 of the A.M.A., Guides. She found that the three percent left thumb impairment equaled
a one percent left hand impairment and a one percent left upper extremity impairment under
Tables 16-1 and 16-2 on pages 438 and 439 of the A.M.A., Guides.
By decision dated January 29, 2009, the Office granted appellant a schedule award for a
one percent permanent impairment to the left upper extremity. The period of the award ran for
3.12 weeks from November 7 to 28, 2008.
On February 3, 2009 appellant requested a telephone hearing. She resubmitted a
September 7, 2005 impairment evaluation from Dr. Alice M. Martinson, a Board-certified
orthopedic surgeon, who provided a second opinion evaluation. Dr. Martinson diagnosed solid
arthrodesis of the CMC joint of the left thumb. She completed an impairment evaluation of the
left thumb listing range of motion. Dr. Martinson also noted findings of weakness of the affected
side with ankylosis and loss of grip strength.
At the hearing, held on April 22, 2009, appellant related that she had limited use of her
hand and thumb. She discussed her submission of an impairment evaluation from Dr. Martinson
in 2005 and noted that the Office did not take any action after its receipt. Appellant related that
her condition affected her thumb, hand and upper extremity not just one part.
By decision dated June 17, 2009, the hearing representative affirmed the January 29,
2009 schedule award. She found that Dr. Martinson’s opinion was of diminished weight as her
report was dated two and a half years before Dr. Young’s evaluation and as she did not specify
any impairment. The hearing representative also found that the Office properly awarded
appellant a schedule award for a one percent permanent impairment of the upper extremity rather
than a one percent impairment of the hand or three percent impairment of the thumb as it was the
most favorable award.
On appeal appellant notes that the Office referred her for an impairment evaluation in
2005 but that her claims examiner did not take any action. She contended that Dr. Young was
not qualified to provide a rating as he did not have knowledge of her work duties and the only
surgery he performed was the attempted removal of a left thumb screw. Appellant questioned
why Dr. Martinson’s evaluation was not contained in the case record. She also contended that
she only had an impairment of the thumb and thus the Office should not have applied 5 U.S.C.
§ 8107(c)(17).
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,10 and its
implementing federal regulations,11 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

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functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.12 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.13
ANALYSIS
The Office accepted that appellant sustained right lateral epicondylitis and left thumb
osteoarthritis due to factors of her federal employment.14 On November 27, 2007 appellant filed
a claim for a schedule award and submitted a January 14, 2008 impairment evaluation from
Dr. Young who reviewed the history of injury and provided range of motion measurements for
the bilateral elbows, thumbs and fingers. Dr. Young determined that appellant had no
impairment due to loss of range of motion of the elbows, fingers or right thumb.15 For the IP
joint of the left thumb, he measured 80 degrees flexion and 10 degrees extension, which he found
constituted no impairment.16 Dr. Young further found that 70 degrees flexion and 0 degrees
extension of the MP joint and 45 degrees abduction and 1 degree adduction of the CMC joint
yielded no impairment.17 He determined that six centimeters of left thumb opposition constituted
a three percent impairment according to Table 16-1 on page 438. Dr. Young noted that a three
percent impairment of the thumb equaled a one percent impairment of the hand and a one percent
permanent impairment of the upper extremity.
On December 1, 2008 an Office medical adviser agreed with Dr. Young’s finding that
appellant had a three percent impairment of the thumb due to loss of opposition according to
Table 16-9 on page 460 of the A.M.A., Guides. She converted the three percent impairment of
the thumb into a one percent impairment of the upper extremity. The Board finds that there is no
current, probative medical evidence consistent with the A.M.A., Guides to establish that
appellant has more than a one percent impairment of the upper extremity.
On appeal appellant contends that the Office erred in failing to take action when it
received Dr. Martinson’s 2005 report.18 The Board’s jurisdiction, however, is limited to
reviewing final decisions of the Office.19 Further, as found by the hearing representative,
12

Id. at § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2009).
14

The Office further accepted that she sustained left lateral epicondylitis under a subsidiary file number.

15

Dr. Young’s range of motion measurements for the elbows, right thumb and fingers do not yield any
impairment under the A.M.A., Guides. See A.M.A., Guides 472, 474, 456, 457, 459, Figures 16-34, 16-37, 16-12,
16-15, 16-23, 16-25.
16

Id. at 456, Figure 16-12.

17

Id. at 457, 459, Figures 16-15, 16-18.

18

Contrary to appellant’s assertion, Dr. Martinson’s report is contained in the case record.

19

20 C.F.R. § 501.2(c).

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Dr. Martinson’s 2005 report is of limited probative value on the schedule award issue as it did
not provide a current description of any impairment.
Appellant asserts that Dr. Young was not qualified to perform an impairment evaluation
as he did not have knowledge of her work duties and was not her initial treating physician. It is
her burden, however, to submit medical evidence supporting the degree of permanent
impairment.20
Appellant further argues that she only had an impairment of the thumb and thus the
Office erred in applying section 8107(c)(17). Section 8107(c)(17) provides that schedule award
compensation “for the loss of use of two or more digits, or one or more phalanges of each of two
or more digits of a hand or foot, is proportioned to the loss of use of the hand or foot occasioned
thereby.”21 The medical evidence supports that appellant has a three percent impairment of the
left thumb, which under the A.M.A., Guides constitutes a one percent impairment of the hand
and a one percent impairment of the upper extremity.22 The Board has held that where the
residuals of an injury to a scheduled member of the body extend into an adjoining area of a
member also enumerated in the schedule, such as an injury of a finger into a hand, or a hand into
the arm, or of a foot into the leg, the schedule award should be made on the basis of the
percentage loss of use of the larger member.23 The number of weeks of compensation for a
schedule award is determined by the compensation schedule at section 8107(c). According to
the schedule, a three percent impairment of the thumb would yield compensation for 2.25 weeks,
a one percent impairment of the hand would yield compensation for 2.44 weeks and a one
percent impairment of the arm would yield compensation for 3.12 weeks.24 The Office granted
appellant a schedule award for a one percent impairment of the left upper extremity instead of a
one percent impairment of the hand or a three percent impairment of the thumb, the greatest
award.
CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment of
the left upper extremity for which she received a schedule award.

20

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

21

5 U.S.C. § 8107(c)(17).

22

A.M.A., Guides 438, 439, Tables 16-1, 16-2.

23

Charles B. Carey, 49 ECAB 528 (1998).

24

Id. at § 8107(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 17, 2009 is affirmed.
Issued: May 17, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE NAVY,
CAMP SMEDLEY D. BUTLER,
Okinawa, Japan, Employer
__________________________________________

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

Docket No. 16-1718
Issued: August 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 24, 2016 appellant filed a timely appeal from a June 23, 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,605.65 because he received compensation for the period August 9, 2007 through
May 9, 2009 at the same time he received earnings from other employment; and (2) whether he
was at fault in creating the overpayment, thereby precluding waiver of recovery of the
overpayment.
On appeal appellant contends that the amount deducted from his continuing
compensation was never readdressed or adjusted after the overpayment amount was reduced
1

5 U.S.C. § 8101 et seq.

from $12,074.98 to $3,605.65 and that OWCP continued to make deductions of $150.00 from
each of appellant’s compensation checks after the overpayment had been paid in full.
FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
prior decisions are incorporated herein by reference. The relevant facts are as follows.
On April 14, 2003 OWCP accepted that appellant, then a 46-year-old athletic director,
sustained hypertensive pneumonitis due to poor air circulation in his office. It paid wage-loss
compensation and medical benefits on the periodic rolls commencing May 20, 2003. Appellant
received his compensation benefits by check.
By letter dated June 26, 2003, OWCP explained how the compensation rate was
determined. It also informed appellant in this letter that in order to minimize the possibility of an
overpayment of compensation, he should notify OWCP immediately when he returned to work.
It noted that FECA provides that a partially disabled employee shall be paid compensation based
on the difference between the monthly pay and the employee’s wage-earning capacity, as
determined by the employee’s actual earnings or by OWCP.
While appellant was receiving full-time wage-loss compensation under FECA he was
also working part time at Ritz Camera beginning August 10, 2007 making $7.00 per hour and as
a part-time athletic assistant in the summer of 2017 earning $8.21 per hour, for the Maryland
National Park and Planning Commission. These jobs were noted by the vocational rehabilitation
counselor assigned to appellant’s case at that time.
On May 27, 2009 OWCP issued an informal loss of wage-earning capacity (LWEC)
determination. It found that as appellant had returned to work as an imaging specialist with
wages of $210.00 per week effective August 10, 2007, his monetary compensation would be
reduced based on his actual earnings. Effective June 7, 2009, OWCP reduced appellant’s
compensation payment every 28 days from $2,358.00 to $1,904.00.
On September 30, 2009 OWCP issued a preliminary determination of an overpayment of
compensation. It calculated that, for the period August 9, 2007 through May 29, 2009, appellant
had received a total of $55,008.08 in wage-loss compensation whereas he was only entitled to
$42,933.10. This resulted in an overpayment of compensation in the amount of $12,074.98.
OWCP also made a preliminary determination that appellant was with fault in the creation of the
overpayment as he accepted payments he knew or should have known were incorrect.
In a February 23, 2010 decision, OWCP finalized the preliminary overpayment
determination. It determined that appellant received an overpayment of compensation in the
amount of $12,074.98 because he received compensation for the period August 9, 2007 through
May 9, 2009 at the same time he received earnings from other employment. OWCP also found
that appellant was at fault in the creation of the overpayment as he accepted payments he knew

2

Docket No. 10-2163 (issued March 18, 2011); Docket No. 14-0165 (issued September 25, 2014).

2

or should have known were incorrect. It commenced deductions of $150.00 from each of
appellant’s continuing compensation payments.
On August 24, 2010 appellant filed an appeal with the Board. By decision dated
March 18, 2011, the Board found that OWCP had not followed proper procedures in that it had
not properly served appellant with the preliminary findings of overpayment at his correct
address. The Board noted that OWCP sent the preliminary notice of overpayment to appellant at
his old address, despite the fact that appellant had provided OWCP with proper notice of his new
address. The Board further found that OWCP had not adequately substantiated the amount of
overpayment, $12,074.08. Accordingly, the Board set aside OWCP’s overpayment decision and
remanded the case for further consideration consistent with the decision.3
In a revised preliminary notice of overpayment dated June 24, 2011, OWCP calculated
that appellant had received an overpayment of compensation only in the amount of $3,605.65. It
noted that at the time of its initial overpayment decision, appellant had not submitted evidence of
actual earnings. Accordingly, OWCP recalculated the amount of overpayment based on
appellant’s actual wage and earning statements pursuant to the LWEC decision issued on
May 27, 2009. It determined that for the period August 1, 2007 through January 1, 2009,
appellant received compensation in the amount of $43,587.65. During this period, appellant
actually earned $9,028.00. OWCP determined that averaging appellant’s actual earnings over 17
months resulted in a monthly income of $531.06 (weekly pay rate of $132.77). It determined
that appellant would have been entitled to $39,982.00 of FECA wage-loss benefits, based on his
actual earnings, and that therefore the overpayment was $3,605.65 ($43,587.65 minus
$39,982.00). OWCP noted that his seasonal summer earnings could not be considered. OWCP
also found that appellant was at fault in the creation of the overpayment as he received dual
payments. Appellant was provided appropriate options to dispute the overpayment. He did not
respond to the revised preliminary overpayment determination at that time, although the June 24,
2011 preliminary determination was mailed to his address of record.
By letter to OWCP dated May 3, 2013, appellant contended that the deductions from his
compensation had not stopped despite the Board’s March 18, 2011 decision. He also noted that
OWCP had not contacted him since the Board’s decision and that he had been unable to reach
the claims examiner. Appellant argued that there were still discrepancies in the amount of wageloss compensation he should have received following the appeal, the total amount of
overpayment, and the amount actually paid back to date.
In a decision dated July 19, 2013, OWCP finalized the overpayment of compensation in
the amount of $3,605.65 for the period August 1, 2007 through January 1, 2009 due to
appellant’s receipt of compensation payments concurrently with earnings from other
employment. It also found that he was at fault in the creation of the overpayment and, therefore,
not entitled to waiver of recovery.
By letter dated September 12, 2013, OWCP advised appellant that the entire overpayment
of compensation in the amount of $3,605.65 had been paid in full and that the overpayment
account had been closed.
3

Docket No. 10-2163 (issued March 18, 2011).

3

On October 30, 2013 appellant filed an appeal with the Board from the July 19, 2013
decision. On September 25, 2014 the Board issued an Order Remanding Case. The Board
determined that OWCP had never addressed the specific issue in appellant’s May 3, 2013 letter
wherein he contended, inter alia, that the deductions from his compensation were not proper,
that he had tried unsuccessfully to contact OWCP, and that there were still discrepancies in the
amount of the overpayment compared to what he had already paid.4
By decision dated June 23, 2016, OWCP finalized the overpayment of compensation in
the amount of $3,605.65. It also found appellant was at fault in the creation of the overpayment
because he accepted earnings while also receiving wage-loss compensation under FECA.
OWCP also noted that the overpayment had been paid in full. OWCP acknowledged appellant’s
May 3, 2013 letter and determined that appellant had been properly notified of the overpayment
and that no evidence had been received to dispute the overpayment amount. It also incorporated,
by reference, the June 24, 2011 preliminary decision, which provided an explanation as to how
the overpayment had been calculated.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA5 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.6 A claimant is not entitled to receive temporary total disability benefits and
actual earnings for the same time period.7
An overpayment of compensation occurs when a claimant returns to work and continues
to receive compensation.8 Section 8129(a) of FECA provides that 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.9
ANALYSIS -- ISSUE 1
The Board, having duly considered the matter, finds that OWCP properly determined that
appellant received an overpayment of compensation in the amount of $3,605.65 because
appellant received wages for the period August 9, 2007 through May 9, 2009 while also
receiving total disability compensation.
During the period August 1, 2007 through January 1, 2009, appellant received wages
from part-time employment in the amount of $9,028.00. As previously noted, a claimant is not
4

Docket No. 14-0165 (issued September 25, 2014).

5

Supra note 1.

6

Id. at § 8102(a).

7

L.S., 59 ECAB 350, 352-53 (2008).

8

R.G., Docket No. 16-1129 (issued December 27, 2016).

9

5 U.S.C. § 8129(a).

4

entitled to receive temporary total disability benefits and actual earnings for the same time
period.10 Had proper adjustments been made to his disability compensation to reflect his parttime employment, appellant would have received $39, 982.00 for this time period. However,
appellant received compensation for this period in the amount of $43,587.65. The difference
between these two amounts, $3,605.65, is the amount of the overpayment, as properly calculated
by OWCP. Accordingly, the Board will affirm the fact and the amount of the overpayment.
Appellant contended that his wage-loss compensation payments had never returned to
that which he received before the overpayment case. However, the reduction of his payments
were based on the informal LWEC decision dated June 7, 2009 which reduced his monthly
payment from $2,538.00 to $1,904.00. That decision is not before the Board at this time.11
LEGAL PRECDENT -- ISSUE 2
An individual who is found at fault in either accepting or creating an overpayment is not
eligible for a waiver of recovery of overpayment.12 A benefits recipient will be at fault if the
individual: (1) made an incorrect statement as to a material fact which he knew or should have
known to be incorrect; (2) failed to provide information which he knew or should have known to
be material; or (3) accepted a payment which he knew or should have known to be incorrect.13
ANALYSIS -- 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.14
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payment he receives from OWCP is proper.15 Appellant was informed by
OWCP’s letter dated June 26, 2003 that FECA provided that a partially disabled employee shall
be paid compensation based on the difference between the monthly pay and employee’s wageearning capacity. Thus, appellant should have been aware that he was not entitled to receive full
wage-loss compensation during the time of his part-time employment. The fact that OWCP may
have been negligent in issuing the payments does not mitigate this finding.16
As appellant was at fault in the creation of the overpayment, he is not eligible for waiver
of recovery of the overpayment.
10

K.L., Docket No. 16-1490 (issued May 26, 2017).

11

See 20 C.F.R. §§ 501.2(c) and 501.3.

12

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433(a) and 10.434.

13

Id. at § 10.433(a).

14

Id.

15

K.M., Docket No. 16-0802 (issued November 23, 2016).

16

Id.

5

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,605.65 because he received compensation for the period
August 9, 2007 through May 9, 2009 at the same time he received earnings from other
employment. OWCP also properly determined that appellant was at fault in creating the
overpayment, thereby precluding waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.17
Issued: August 21, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

Although the Board recognizes that the full amount of the overpayment has been repaid, upon return of the case
record, OWCP shall verify that only the amount of the overpayment, i.e., $3,605.65, was recovered from appellant’s
continuing compensation payments.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Wilkes-Barre, PA, Employer
__________________________________________

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

Docket No. 06-2077
Issued: January 26, 2007

Case Submitted on the Record

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

JURISDICTION
On September 12, 2006 appellant filed a timely appeal from an August 3, 2006 merit
decision of the Office of Workers’ Compensation Programs finding that she did not establish a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
or a recurrence of a medical condition on March 16, 2006 causally related to her February 27,
2001 employment injury.
FACTUAL HISTORY
On February 28, 2001 appellant, then a 44-year-old licensed practical nurse, filed a claim
for a traumatic injury to her left shoulder and neck which occurred on February 27, 2001 when

she assisted a patient who had fainted. She worked in a light-duty capacity until April 4, 2001.
The Office accepted appellant’s claim for a sprain of the cervical spine and left shoulder.1
On June 9, 2006 appellant filed a recurrence of disability claim on March 16, 2006
causally related to her February 27, 2001 employment injury.2 She related that since her original
injury she experienced pain in her cervical spine and left shoulder with muscle spasms and
numbness of the left arm and fingers. Appellant did not stop work.
By letter dated July 5, 2006, the Office requested additional factual and medical
information. In a response received on July 31, 2006, appellant related that she worked light
duty following her employment injury until April 4, 2001. She experienced continual pain in her
neck and shoulders. Appellant described her work duties and two subsequent traumatic injuries.
She related, “Increased computer usage and clinical activity along with repetitive motions of my
head and neck have caused increased irritation to the cervical and left shoulder muscles creating
swelling of tissue and pinching of nerves in the area resulting [in] tingling of [the] left hand and
fingers and increase[d] pain, burning and spasms.”
In a report dated April 10, 2006, Dr. Mohan A. Pillai, a Board-certified neurologist,
discussed appellant’s history of a “whiplash injury” while working as a nurse in February 2001
and her recent complaints of tenderness of the left shoulder with numbness. He related,
“[Appellant] … has noticed that, when she works at the computer for any length of time, the
muscles in the neck go into a spasm, which triggers off the pain and tingling and numbness.”
Dr. Pillai diagnosed an “older cervical spine injury, which has been aggravated probably by
position.”
In a progress report dated June 9, 2006, Dr. Pillai noted that an electromyogram (EMG)
showed left C6-7 radiculopathy. He diagnosed cervical radiculopathy and recommended a
magnetic resonance imaging (MRI) scan study.3 In a progress report dated July 14, 2006,
Dr. Pillai diagnosed cervical spondylosis with radiculopathy.
In a report dated July 24, 2006, Dr. Mario Adajar, a Board-certified internist, stated:
“[Appellant] presented to Occupational Health on March 16, 2006 for evaluation
of neck and left shoulder pain that she stated was a recurrence of a work-related
injury, whiplash of the neck and left shoulder impingement, that occurred in
February 2001. She was returned to work initially on March 31, 2001 but had

1

By letter dated August 1, 2002, the Office noted that appellant continued to receive medical treatment but that
the evidence showed no objective findings of any residuals of her employment injury.
2

Appellant previously filed a notice of recurrence of disability on May 6, 2003 due to her February 27, 2001
employment injury. In a decision dated July 28, 2003, the Office found that the evidence was insufficient to
establish that she sustained an employment-related recurrence of disability.
3

An MRI of the cervical spine, obtained on July 19, 2006, showed degeneration and minimal protrusion at C4-5
and C5-6.

2

been placed on limited duty on at least three occasions for recurrent pain and
spasm in the neck and left shoulder and upper back areas.
“[Appellant’s] subjective complaints on March 16, 2006 showed that she reported
persistent pain in the left shoulder/trapezius area that she related to her previous
work-related injury. Further history showed that she noticed an exacerbation of
her muscle pain and spasm while working at her computer station and now she
notes occasional tingling down the left arm to the hand.”
Dr. Adajar listed findings of decreased neck and left shoulder motion due to pain. He
included a physical therapy evaluation. Dr. Adajar diagnosed cervical spondylitis and
radiculopathy at C6-7 “most likely the result of her initial ‘[w]hiplash’-type injury.”
By decision dated August 3, 2006, the Office found that the evidence was insufficient to
show that appellant sustained a recurrence of disability or a recurrence of a medical condition
due to her February 27, 2001 employment injury.
LEGAL PRECEDENT
When an appellant claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports this conclusion with sound medical
reasoning.4
Section 10.5(x) of the Office’s regulations provides in pertinent part:
“Recurrence of disability means an inability to work after an employee has
returned to work caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”5
Section 10.5(y) of the Office regulations states:
“Recurrence of medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when
there is no accompanying work stoppage.”6

4

Ricky S. Storms, 52 ECAB 349 (2001).

5

20 C.F.R. § 10.5(x).

6

20 C.F.R. § 10.5(y).

3

Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured. Office procedures
further state: “If a new work-related injury or exposure occurs, Form CA-1 [notice of traumatic
injury] or Form CA-2 [notice of occupational disease or illness] should be completed
accordingly.”7
ANALYSIS
The Office accepted that appellant sustained a sprain of the cervical spine and left
shoulder due to a February 27, 2001 employment injury. She worked limited duty following her
injury until April 4, 2001, when she resumed her regular employment. Appellant filed a
recurrence of disability claim on March 16, 2006 causally related to her accepted employment
injury. She experienced pain in her neck and shoulders since her employment injury, which
increased with computer use and repetitive head and neck motion. Appellant did not stop work.
In a report dated April 10, 2006, Dr. Pillai discussed appellant’s history of an
employment injury in February 2001. He noted that she experienced neck spasms, pain and
numbness when working extensively at the computer. Dr. Pillai diagnosed a previous cervical
spine injury which he found was “aggravated probably by position.” He did not, however,
explain how appellant’s February 2001 employment injury caused her current neck problems.8
Further, Dr. Pillai attributed an aggravation of a previous injury to her position while working.
A recurrence of disability, however, is a spontaneous change in a medical condition which had
resulted from a previous injury or illness without an intervening injury or new exposure to the
work environment that caused the illness.”9 As Dr. Pillai attributed appellant’s current
complaints to a prior injury aggravated by new work factors, his opinion does not support a
finding that she experienced a recurrence of disability. Additionally, he provided no opinion that
appellant required further medical treatment due to her accepted employment injury.10
In a progress report dated June 9, 2006, Dr. Pillai diagnosed cervical radiculopathy by
EMG. In a progress report dated July 14, 2006, he diagnosed cervical spondylosis with
radiculopathy. Dr. Pillai, however, did not address the cause of appellant’s cervical spondylosis
and radiculopathy. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.11
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2)(e) (May 1997).

8

See Brenda L. DuBuque, 55 ECAB 212 (2004) (a medical opinion not supported by medical rationale is of little
probative value).
9

20 C.F.R. § 10.5(x); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3b (January 1995).
10

20 C.F.R. § 10.5(y).

11

Conrad Hightower, 54 ECAB 796 (2003).

4

In a report dated July 24, 2006, Dr. Adajar noted that he initially treated appellant on
March 16, 2006 at which time she attributed her neck and left shoulder pain to a recurrence of a
whiplash injury to her neck and shoulder sustained at work in February 2001. She experienced
increased pain and muscle spasms when working at the computer. Dr. Adajuar diagnosed
cervical spondylitis and C6-7 radiculopathy which he found was “most likely the result of her
initial ‘[w]hiplash’-type injury.” His opinion, however, that appellant’s cervical spondylitis and
C6-7 radiculopathy were “most likely” due to her employment injury is speculative in nature and
thus of diminished probative value.12
On appeal, appellant contends that she did not experience neck pain, tingling or muscle
spasm prior to her February 27, 2001 employment injury. An award of compensation, however,
may not be based on her own belief that there is causal relationship between her claimed
condition and her employment.13 Appellant has the burden to furnish medical evidence from a
physician who, on the basis of a complete and accurate factual history, concludes that the
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.14 She failed to submit such evidence in this case and, therefore, has failed to
discharge her burden of proof to establish that she sustained a recurrence of disability or a
recurrence of a medical condition due to her February 27, 2001 employment injury.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability or a recurrence of a medical condition on March 16, 2006 causally related to her
February 27, 2001 employment injury.

12

See Ellen L. Noble, 55 ECAB 530 (2004).

13

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

14

Mary A. Ceglia, 55 ECAB 626 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2006 is affirmed.
Issued: January 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Long Beach, CA, Employer
__________________________________________

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

Docket No. 10-881
Issued: February 7, 2011

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from November 19 and
December 4, 2009 and January 5, 2010 merit decisions of the Office of Workers’ Compensation
Programs. Pursuant to 5 U.S.C. § 8149 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 the Office properly terminated appellant’s right to further
compensation effective November 13, 2009; (2) whether the Office properly forfeited his right to
compensation for the periods September 19, 2001 to November 12, 2009; (3) whether appellant
received an overpayment of compensation in the amount of $243,452.61; (4) whether appellant
was at fault in the creation of the overpayment, thus precluding waiver of recovery of the
overpayment; and (5) whether the Office properly determined that repayment was due and
payable in full.
Appellant argues on appeal that the amount of overpayment is too high as he never
received that amount over all the years he received compensation and urged the Board to reduce

the amount of repayment. Further he noted that he never did any physical labor at his wife’s
business and it was impractical for her to hire an employee to do what he did. The business did
not make any profit for many years. Appellant requested that the Board waive all or a portion of
the payment in order to give his family some hope for the future.
FACTUAL HISTORY
This case has previously been before the Board. On August 26, 2008 the Board affirmed
an overpayment in the amount of $12,339.86 due to an underdeduction of health insurance
premiums and found appellant without fault in the overpayment.1 The facts of the case as set
forth in the prior decision are incorporated by reference. The relevant facts of the case are set
forth herein.
On August 21, 1989 appellant, then a 30-year-old maintenance mechanic, filed a claim
(Form CA-1) for injury to his low back and left leg. The Office accepted the claim for
postlaminectomy syndrome. Appellant was placed on the periodic rolls. During the period of
his total disability, he was requested to file periodic EN1032 disclosure forms. The affidavits
required appellant to report earnings from employment or self-employment during the 15-month
period prior to the completion and signing of each affidavit. The affidavits advised signers that
false, evasive or omitted answers might subject them to forfeiture of compensation benefits, civil
liability or criminal prosecution. The affidavits contained the following instructions:
“Report ALL employment for which you received a salary, wages, income,
sales commissions, piece work, or payment of any kind....
“Report ALL self-employment or involvement in business enterprises. These
include but are not limited to: farming; sales work; operating a business,
including a store or restaurant; and providing services in exchange for money,
goods, or other services. The kinds of services which you must report include
such activities as carpentry, mechanical work, painting, contracting, childcare,
odd jobs, etc. Report activities such as keeping books and records, or managing
and/or overseeing a business of any kind, including a family business. Even if
your activities were part time or intermittent, you must report them.
“Report as your ‘rate of pay’ what you were paid. Include the value of such
things as housing, meals, clothing and reimbursed expenses, if they were received
as part of your employment.
“Report ANY work or ownership in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to others. If
you performed any duties in any business enterprise for which you were not paid,
you must show as rate of pay what it would have cost the employer or
organization to hire someone to perform the work or duties you did, even if your
work was for yourself or a family member....” (Emphasis in the original.)

1

Docket No. 07-1613 (issued August 26, 2008); petition for recon. denied (issued April 2, 2009).

2

Appellant submitted these forms on December 19, 2002, November 21, 2003, August 5,
2004, September 11, 2005, July 24, 2006, October 29, 2007, June 4 and July 16, 2008, April 22
and August 3, 2009. On November 13, 2009 he entered a plea of guilty to seven counts of
violations of 18 U.S.C. § 1920 for knowingly and willfully making false statements on
Form EN1032 affidavits between December 19, 2002 and June 4, 2008.
Appellant reported on the affidavits that he was not self-employed, receiving income, or
otherwise involved in any business enterprise despite the fact that he knew he performed work
and received income in connection with his wife’s business, Safe N Sound Storage (SNSS), a
boat and recreational vehicle storage business located in Auburn, California.
The government, as part of the plea agreement, stated that it would have proved that
appellant’s involvement with SNSS included meeting with clients and customers, signing rental
contracts and accepting payment for services and appearing on behalf of SNSS at videotaped
public hearings. Appellant also was engaged in litigation with customers, contractors and
neighbors of SNSS and represented on an official court filing that he and his wife owned SNSS.
In a meeting with appellant and special agents of the Office of Inspector General, Department of
Defense, appellant admitted that he was at the location at all times, that he was the one
responsible for the decisions at the business and that the business was all he did. He claimed it
was his “dream job” and that he had been in the business for eight years.2
As a result of the plea of guilt to violating 18 U.S.C. § 1920, by decision dated
November 19, 2009, the Office terminated appellant’s right to further compensation benefits
effective November 13, 2009.
By decision dated December 4, 2009, the Office also found that appellant had forfeited
all compensation for the period September 19, 2001 to November 12, 2009 because he had failed
to report employment income as required under 5 U.S.C. § 8106(b).
The Office issued a preliminary determination of overpayment of compensation for the
same period in the amount of $243,452.61 and finalized the overpayment in a decision dated
January 5, 2010. It found that, based on the plea agreement, appellant knew or reasonably
should have known that he could not receive compensation for total disability while at the same
time working and earning wages. The Office found appellant at fault in the creation of the
overpayment and requested a check in that amount payable within 30 days to the Office.
LEGAL PRECEDENT -- ISSUE 1
Section 8148(a) of the Federal Employees’ Compensation Act specifically states the
result of a criminal conviction related to fraud in the application for or receipt of compensation
benefits. “Any individual convicted of a violation of section 1920 of Title 18, 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
2

On May 2, 2001 appellant was sentenced to one year and nine months incarceration and three years of
supervised release.

3

before the date of such conviction. Such forfeiture shall be in addition to any action the
Secretary may take under section 8106 [forfeiture] or 8129 [recovery of overpayments].”3
Section 10.17 of the Office’s implementing federal regulations clarify:
“When a beneficiary either pleads guilty to or is found guilty on either Federal or
State criminal charges of defrauding the Federal Government in connection with a
claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial, for any injury occurring on or before the
date of such guilty plea or verdict. Termination of entitlement under this section
is not affected by any subsequent change in or recurrence of the beneficiary’s
medical condition.”4
The Office’s procedure manual states that in support of termination or suspension of
compensation the record must contain copies of the indictment or information, the plea
agreement, if any, the document containing the guilty verdict and/or the court’s docket sheet.
Further, this evidence must establish: (1) the individual was convicted; and (2) the conviction is
related to the claim for, or receipt of, compensation benefits under the Act.5 The termination is
effective on the date of the verdict or on the date the guilty plea is accepted and guilt
adjudicated.6 Because of the criminal basis for the termination, no pretermination notice is
required before a final decision is issued.7
ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s compensation effective
November 13, 2009.
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It relied on 5 U.S.C. § 8148(a) and 20
C.F.R. § 10.17 to terminate future compensation benefits effective on the date of the guilty plea
(November 13, 2009).
On November 13, 2009 appellant entered a plea of guilty to seven counts of violating 18
U.S.C. § 1920 when he knowingly made false statements regarding his employment, selfemployment and income on Office EN1032 forms dated from December 19, 2002 to June 4,
2008 to obtain federal employees’ compensation.
3

5 U.S.C. § 8148(a). Public Law No. 103-333, which amended the Act by adding 5 U.S.C. § 8148, was enacted
on September 30, 1994.
4

20 C.F.R. § 10.17.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12(d) (March 1997).

6

20 C.F.R. § 10.17; see also Paul Hanley, 53 ECAB 424, 426-27 (2002);

7

Supra note 5 at Chapter 2.1400.12(f)(2) (March 1997).

4

As appellant was convicted of an offense under 18 U.S.C. § 1920, the Office properly
terminated his compensation benefits effective November 13, 2009, the date the guilty plea was
accepted and guilt adjudicated.8
LEGAL PRECEDENT -- ISSUE 2
Section 8106(b) of the Act9 provides that an employee who fails to make an affidavit or
report when required; or knowingly omits or understates any part of his earnings forfeits his right
to compensation with respect to any period for which the affidavit or report was required.
Compensation forfeited under this subsection, if already paid, shall be recovered by a deduction
from the compensation payable to the employee or otherwise recovered under section 8129 of
this title, unless recovery is waived under that section.
The Board has held that it is not enough merely to establish that there were unreported
earnings or unemployment. A claimant can be subjected to the forfeiture provisions of 5 U.S.C.
§ 8106(b) only if he knowingly failed to report employment or earnings.10 The term knowingly
as defined in the Office’s implementing regulations, means with knowledge, consciously,
willfully or intentionally.11
Section 10.5(g) of the Office’s regulations further define earnings from employment or
self-employment as gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services received in kind as
remuneration; or a reasonable estimate of the cost to have someone else perform the duties of an
individual who accepts no remuneration. Neither lack or profits, nor the characterization of the
duties as a hobby, removes an unremunerated individual’s responsibility to report the estimated
cost to have someone else perform his or her duties.12
ANALYSIS -- ISSUE 2
The Board finds that the Office properly forfeited appellant’s compensation for the period
September 19, 2001 through August 3, 2009. The Board further finds the record insufficient to
support forfeiture from August 4 through November 12, 2009.
On November 13, 2009 appellant entered a plea of guilty to seven counts of violating 18
U.S.C. § 1920 when he knowingly made false statements regarding his employment, selfemployment and income on Office EN1032 forms dated from December 19, 2002 to June 4,
2008 to obtain federal employees’ compensation benefits.

8

The record contains the appropriate court documents specified by Office procedure.

9

5 U.S.C. § 8106(b).

10

Barbara L. Kanter, 46 ECAB 165, 169 (1994).

11

20 C.F.R. § 10.5(n).

12

20 C.F.R. § 10.5(g); see also J.S., 58 ECAB 515, 519 (2007).

5

Based on the facts presented in the plea agreement, appellant’s involvement with SNSS
clearly equated to “earnings” as defined by 20 C.F.R. § 10.5(g). These duties included meeting
with clients and customers, signing rental contracts and accepting payment for services,
appearing on behalf of SNSS at videotaped public hearings, engaging in litigation with
customers, contractors and neighbors of SNSS and represented in an official court filing that he
and his wife owned SNSS. Appellant further admitted that he was at the location at all times,
that he was the one responsible for the decisions at the business and that the business was all he
did and had been doing for eight years.
This plea of guilt is sufficient to establish that appellant knowingly omitted work
activities from the EN1032 forms for the period covered by the plea agreement (December 19,
2002 through June 4, 2008). As the EN1032 forms signed by appellant cover the previous
15-month period, the Board affirms the forfeiture for the period from September 19, 2001
through June 4, 2008.
Further, appellant submitted three additional EN1032 affidavits that were not
incorporated in the plea agreement. These forms dated July 16, 2008, April 22 and August 3,
2009 incorporated the period April 16, 2007 to August 3, 2009. In the July 16, 2008 report,
appellant reported neither duties nor income associated with working with his wife’s business,
SNSS. In the April 22, 2009 report, he referenced meeting with tenants to sign rental contracts,
appearing at county meetings and court trials and answering telephones and in his August 3,
2009 report, he referenced representing his wife regarding property improvements and signing
rental contracts. In none of these EN1032 forms did appellant report any income associated with
those duties. His involvement with SNSS, though, equates to earnings as defined by 20 C.F.R.
§ 10.5(g). Although appellant claimed he had no earnings from the business and that the
business did not make money for most of its years, he was still required to report “a reasonable
estimate of the cost to have someone else perform the duties of an individual who accepts no
remuneration.”13 Neither lack of profits, nor the characterization of the duties as a hobby,
removes an unremunerated individual’s responsibility to report the estimated cost to have
someone else perform his or her duties.14
The Board finds that the evidence establishes that appellant knowingly underreported
earnings associated with a family business for the period April 16, 2007 through August 3, 2009
and that this period was therefore appropriately subject to forfeiture.
The record does not reflect any additional affidavits in which appellant failed to report his
income from August 4 to November 12, 2009. The forfeiture provision is a penalty provision
and is thus narrowly construed.15 As there are no EN1032 affidavits upon which to base a
forfeiture of compensation payments for the period August 4 through November 13, 2009, the
Board reverses the forfeiture for that period.
13

See B.T., Docket No. 09-2190 (issued August 6, 2010).

14

Supra note 12; see also C.R., 61 ECAB ___ (Docket No. 09-720, issued October 15, 2009); B.S., 61 ECAB ___
(Docket No. 09-741, issued May 14, 2010).
15

Karen Spurling, 56 ECAB 189, 194 fn.9 (2004).

6

Appellant argues that he never did any physical labor or earned any income for the
business, but as noted above, there are other aspects to the definition of earnings under Office
regulations and the Board finds the Office properly forfeited compensation benefits for the
period from September 19, 2001 to August 3, 2009.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of the Act provides that, when an overpayment of compensation has been
made 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.16
Section 10.529 of the Office’s implementing regulations provides where the right to
compensation is forfeited, the Office shall recover any compensation already paid for the period
of forfeiture pursuant to 5 U.S.C. § 8129 (recovery of overpayments) and other relevant statues.17
ANALYSIS -- ISSUE 3
The Board affirms the January 5, 2010 Office decision finding an overpayment of
compensation benefits for the period September 19, 2001 through August 3, 2009. The case is
not in posture, however, for the Board to decide the amount of overpayment. The Office must
recalculate the amount of overpayment to subtract the period August 4 to November 13, 2009
from the forfeiture period.
Appellant argues generally that the amount of overpayment is too high and that he never
received that much compensation, but has provided no evidence to support this allegation. The
Office has provided its records reflecting the payments made to him over the period at issue.
The Board remands the case to the Office for determination of the proper amount of the
overpayment.
LEGAL PREDENT -- ISSUE 4
Section 8129(a) of the Act also provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.18 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”19 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.

16

5 U.S.C. § 8129(a).

17

20 C.F.R. § 10.529.

18

5 U.S.C. § 8129(a).

19

Id. at § 8129(b).

7

In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who -(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(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....”20
ANALYSIS -- ISSUE 4
In this case, the Office applied the first and second standards in determining that
appellant was at fault in creating the overpayment.
Section 10.433(b) of the Office’s regulations further provides that “[w]hether or not [the
Office] determines that an individual was at fault with respect to the creation of an overpayment
depends on the circumstances surrounding the overpayment. The degree of care expected may
vary with the complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”21
Appellant is at fault in the creation of the overpayment. When he pled guilty to violating
18 U.S.C. § 1920, he admitted that he knowingly and willfully made false statements and
omitted self-employment and earnings on each Form EN1032 affidavit signed between
December 19, 2002 and June 4, 2008 and the documents contained in the case record describing
his commercial activities show that he knew he was self-employed and had earnings which he
was required to report on the Form EN1032.
Appellant requests that waiver be allowed for some or the entire amount of overpayment
to give his family some hope for their future. The Board finds him at fault in the creation of the
overpayment, thus precluding waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 5
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. Section
10.441(b) of the regulations provides:
“When an overpayment has been made to an individual who is not entitled to
further payments, the individual shall refund to [the Office] the amount of the
20

20 C.F.R. § 10.433(a).

21

Id. at § 10.433(b).

8

overpayment as soon as the error is discovered or his or her attention is called to
same. The overpayment is subject to the provisions of the Federal Claims
Collection Act of 1966 (as amended) and may be reported to the Internal Revenue
Service as income.”
ANALYSIS -- ISSUE 5
As appellant’s right to future compensation benefits has been terminated under the
forfeiture provision of section 8148(a), he is not entitled to continuing compensation benefits and
the Board does not have jurisdiction over the Office’s recovery of the overpayment.22
CONCLUSION
The Board finds that the Office properly terminated appellant’s right to future
compensation benefits effective November 13, 2009. The Board further finds that the Office
properly determined that appellant forfeited his entitlement to compensation for the period
September 19, 2001 to August 3, 2009 because he knowingly failed to report employment
activities, but reverses the finding of forfeiture for the period August 4 through
November 13, 2009. The Board further affirms the finding of an overpayment of compensation
and that appellant was at fault in the creation of the overpayment, thereby rendering appellant
ineligible for waiver. The Board remands the case to the Office for a recalculation of the amount
of overpayment to deduct the period August 4 to November 13, 2009 from the period of
forfeiture. The Board also finds that it is without jurisdiction over the method of repayment.23

22

Robert Ringo, 53 ECAB 258, 266 fn.1 (2001); Robert S. Luciano, 47 ECAB 793, 799 (1996).

23

Upon remand, the Office should review what effect, if any, the previous overpayment decision has on the
overpayment amount. Supra note 1.

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 5, 2010, December 4 and November 19, 2009 are
affirmed in part, reversed in part and remanded for further action consistent with this decision.
Issued: February 7, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10