United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Fort Worth, TX, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-265
Issued: September 12, 2014

Case Submitted on the Record

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

JURISDICTION
On November 16, 2012 appellant, through his attorney, filed a timely appeal of an
October 15, 2012 forfeiture and overpayment decision of the Office of Workers’ Compensation
Programs. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his
compensation for the period January 17, 1996 to April 15, 2008; (2) whether appellant received a
$321,372.16 overpayment of compensation; and (3) whether he was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.
On appeal, counsel contends that the amount of the overpayment is incorrect and that
OWCP did not adequately explain how the overpayment occurred. She further contends that
appellant was denied due process when he was deprived of his right to submit new evidence or
1

5 U.S.C. § 8101 et seq.

argument at a prerecoupment hearing. Counsel asserts that the subsidies he received from the
United States Department of Agriculture (USDA) for not farming his land were not income and,
thus, he was not required to report them to OWCP. Citing Jack Sipe,2 she contended that
appellant’s farm subsidies constituted passive investment income. Appellant was no more than
an owner of a farm who paid personal attention to it. Citing Christine C. Burgess,3 counsel
contends that he is not subject to forfeiture because he did not knowingly fail to report his
earnings. Appellant relied on information from an OWCP claims examiner who told him that his
farm subsidies did not constitute income for purposes of completing a Form CA-1032.
FACTUAL HISTORY
This case was previously before the Board with respect to appellant’s wage-earning
capacity. In a May 7, 2002 decision, the Board reversed OWCP’s October 2, 2000 and
May 29, 2001 decisions, finding that OWCP failed to meet its burden of proof in determining
that the selected position of information clerk reasonably represented appellant’s wage-earning
capacity.4 The Board found that the record was unclear as to whether appellant had a preexisting
medical condition that continued to limit his wage-earning capacity. The facts as relevant to the
present issue on appeal are set forth.
OWCP accepted that on May 30, 1991 appellant, then a 55-year-old former realty
specialist, sustained a lumbar strain, herniated nucleus pulposus at L4-5 and spinal stenosis. It
authorized decompression laminectomies which were performed on March 8 and
August 14, 1993. Appellant stopped work on March 8, 1993 and received compensation for total
disability on the periodic rolls.
In accordance with established OWCP procedure, appellant was required to complete
Form CA-1032 questionnaire forms regarding his earnings and employment activity for the
previous 15 months. The form explained that a claimant must report all self-employment or
involvement in any business enterprise, including, but not limited to, farming, sales work,
operating a business or providing services in exchange for money, goods or other services. In
addition, Form CA-1032 advised the employee that, if duties were performed in any business
enterprise for which he or she was not paid, he was to report the rate of pay it would have cost to
hire someone to perform such duties. On CA-1032 forms signed on April 19, 1996,
April 17, 1997, April 20, 1998, April 20, 1999, May 1, 2000, April 24, 2001, June 5, 2002,
April 23, 2003, April 27, 2004, May 6, 2005, April 15, 2006, April 18, 2007 and April 15, 2008
appellant stated that he was not employed, self-employed and had not performed volunteer work
for the previous 15 months covered by each form.
In an investigative report dated August 13, 2008 from the employing establishment’s
FECA Fraud Investigation Unit, Johnny M. Kisner, Jr., an investigator, documented the
surveillance of appellant by himself and another investigator from August 1 through 6, 2008. He
2

43 ECAB 773 (1992).

3

43 ECAB 449 (1992).

4

Docket No. 02-35 (issued May 7, 2002).

2

stated that appellant had flyers in his car which advertised Lyndal Carey Farms. An Internet
search revealed that appellant was listed in the top 100 recipients of farm subsidies for a 10-year
period from 1996 to 2006 from the USDA, totaling more than $92,000.00. Appellant was
involved in a pattern of real estate transactions and tenant farming that constituted a for-profit
business. He also leased land to tenant farmers and then sold the land for profit and in some
cases divided the land to sell as residential plots. Appellant managed and sold oil, gas and
mineral rights from the lands he owned.
On August 5, 2008 Malinda Freeman, county executive director for a farm service
agency, advised investigators about two types of subsidies. A crop subsidy program was for the
production of crops. A Conservation Reserve Program (CRP) involved a landowner who let a
portion of his land lay fallow to enhance soil conservation.
In a December 5, 2008 interview, John Segrist, Chief of Real Estate for the Mississippi
Valley/Vicksburg District, advised Investigator Kisner that appellant’s activity was in line with
the duties of a journeyman realtor for the employing establishment. Mr. Segrist expected his
realtors to be on the road three or four days a week conducting title searches, looking for
properties and assisting real estate attorneys in the preparation of documents for land
management. He stated that appellant’s activities constituted land speculation as he purchased
property and quickly turned it over to take advantage of fiscal growth.
In an April 14, 2009 investigative interview, appellant advised Special Agent Jason L.
Reich from the employing establishment’s Fraud Resident agency, that he had not reported
income on his CA-1032 forms or worked or received any income from any business or company
since he began receiving compensation in 1993. He had purchased three farms since 1995 and
leased them to several farmers for profit. Appellant sold a farm in 2000 and another one in 2006
for profit. He still owned a farm of which he currently leased 2,500 acres for $5.00 an acre on a
yearly basis and received yearly subsidies for approximately 800 acres for $35.00 an acre from
the USDA. Appellant was unaware of the amount of money he received from leasing his farms,
profits from the sale of his farms and subsidies he received on the farms. He purchased his first
farm without a real estate agent, but used a real estate agency for the sale of the first farm and
purchase of the other two farms. Appellant rented and leased the farms without the aid of a real
estate agency. He was unaware that the monies he received from renting and leasing his farms
and subsidies were considered income and should have been reported on his CA-1032 forms.
The August 13, 2008 investigative report was accompanied by a list of appellant’s
properties which indicated that from October 7, 1994 to December 3, 2010 he purchased
$1,025,361.51 and sold $1,267,346.31 in real estate. A document dated 2009 from the Internal
Revenue Service provided a definition and the reporting requirements for passive and nonpassive
income regarding real estate.
In memoranda dated November 14, 2008 and January 22, 2009, the employing
establishment reiterated its investigative findings that appellant was involved in a pattern of real
estate transactions and tenant farming which constituted his involvement in a for-profit business
from which he earned income that he did not report to OWCP.

3

In a May 18, 2010 letter, appellant stated that a portion of his property was enrolled in the
USDA’s CRP. He further stated the CRP contract went with the land and he had to assume it
when he purchased the property, entitling him to receive any future payments as long as the
contract was in force and he owned the property. Appellant stated that this enterprise was going
on before or at the time he began receiving OWCP benefits and was allowed under FECA. He
contended that his receipt of rental income never violated any physical restrictions or limitations
set forth by his physician.
In a March 27, 2012 decision, OWCP found that appellant forfeited compensation paid in
the amount of $319,299.64 from January 17, 1996 through April 15, 2008 because he did not
report his USDA subsidies on the CA-1032 forms as required. It also issued a preliminary
determination that he received an overpayment of compensation in the amount of $319,299.64
for the period January 17, 1996 through April 15, 2008 because he failed to provide information
that he should have known was material on the CA-1032 forms. Appellant was informed of his
options if he wished to contest the fact or amount of overpayment or request a waiver of
recovery and was provided with an overpayment recovery questionnaire (Form OWCP-20). An
electronic printout indicated that he received gross compensation in the amount of $321,757.34
from January 17, 1996 to April 15, 2008.
On April 11, 2012 appellant, through his attorney, requested a prerecoupment hearing
before an OWCP hearing representative. Counsel disagreed that the overpayment occurred and
with the amount of the overpayment. He contended that the overpayment occurred through no
fault of appellant and requested waiver of recovery of the overpayment. Appellant did not
submit a completed Form OWCP-20.
During an August 9, 2012 telephone hearing,5 appellant was represented by counsel and
testified that he understood that the farm subsidies he received were not considered income. In
1996, he was advised by a claims examiner that they were not income and that he did not have to
report them. Appellant contended that his farm subsidies were not income because he did not
earn them and, thus, they were not considered to be wages. The government paid him not to
farm the land. Appellant contended that he followed all instructions regarding the reporting
requirements on Form CA-1032 to the best of his knowledge.
In a September 7, 2012 letter, Investigator Kisner stated that, although the sole issue in
the March 2012 overpayment determination was the unreported receipt of farm subsidies from
1996 to 2008 by appellant, the investigation by his office which commenced in 2008 revealed
that appellant, acting on his own behalf, was heavily involved in acquiring land, subdividing that
land and otherwise managing that land between 1994 and 2010. He contended that this activity
proved a pattern of employability and suggested that appellant was self-employed during this
period. Appellant routinely conducted activities that were listed in his federal position
description. He abused the workers’ compensation program by repeatedly failing to report these
activities and the income they produced on his CA-1032 forms. Investigator Kisner related that
his investigation determined that appellant’s real estate transactions were recorded in six Texas
counties and a county in Oklahoma some 300 to 400 miles from his home. Proof of these
5

Appellant was unable to appear in person at the scheduled prerecoupment hearing due to his medical conditions
related to recent knee surgeries and upcoming eye surgery.

4

activities was found in county court documents showing the purchase, management and sale of
real estate and mineral rights and in USDA records showing the management of properties for
the receipt of farm subsidies. Investigator Kisner noted that on June 22, 2008 appellant was
observed driving approximately four hours, about 244 miles. Appellant’s activities were closely
related to his original scope of work. He maintained his Texas real estate broker’s license
through 2005 and submitted continuing education credits earned from 1994 through 2000 to the
state continuing which demonstrated a level of activity and desire to maintain a license for a field
in which he was no longer physically able to work. Investigator Kisner contended that appellant
should have been able to perform his date-of-injury job based on these activities. He submitted
employment records which included a description of appellant’s realty specialist position.
Investigator Kisner also submitted maps of counties where appellant conducted real estate
activities, a list of the farm subsidies he received from 1995 to 2011, a history of his real estate
transactions and licensing and continuing education credits, a flyer for Lyndal Carey Farms and a
description of mobile surveillance of appellant’s route on June 22, 2008.
In an October 15, 2012 decision, an OWCP hearing representative affirmed as modified
OWCP’s decisions regarding the period of the forfeiture and overpayment and the amount of the
overpayment. The correct period of the forfeiture and overpayment was January 17, 1996
through April 15, 2008 as January 17, 1996 was the beginning of the 15-month period covered
by appellant’s April 19, 1996 Form CA-1032. The hearing representative noted that a payment
history submitted after the August 9, 2012 hearing showed that appellant received $321,372.16
from January 17, 1996 to April 15, 2008. She directed repayment of the overpayment in full.
Upon return of the case record, the hearing representative directed OWCP to provide a statement
of accepted facts, which included appellant’s physical activities as documented by the employing
establishment’s investigation and a description of his date-of-injury position to his treating
physician to determine whether he was still totally disabled from performing the duties of this
position due to his accepted May 30, 1991 employment injuries.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his or
her earnings from employment [pre] self-employment, by affidavit or otherwise,
in the manner and at times the Secretary specifies…. An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his or her earnings;
forfeits his or her 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 under section 8129 of this title, unless recovery is
waived under that section.”6

6

5 U.S.C. § 8106(b).

5

Before OWCP can declare a forfeiture of compensation, it must establish that appellant
has received earnings from his own employment, not from passive investment in business
ventures.7 An individual can be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
or she knowingly failed to report employment or earnings. The term knowingly, as defined in
OWCP’s implementing regulations, means with knowledge, consciously, willfully or
intentionally.8 OWCP has the burden of proof to establish that a claimant knowingly omitted or
understated earnings.9 To meet this burden, it is required to examine closely appellant’s
activities and statements. OWCP may meet this burden without an admission by the claimant if
the circumstances of the case establish that he failed to reveal fully and truthfully the full extent
of his employment activities and earnings.10
Section 10.5(g) of OWCP’s regulations define earnings from employment or
self-employment as follows:
“(1) 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
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. 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.”11
In order to establish that compensation should forfeit the compensation received for the
periods covered by completed CA-1032 forms, the evidence must establish that he knowingly
omitted or understated his employment and earnings.12 As forfeiture is a penalty, it is not
enough merely to establish that there were underreported earnings from employment. The
inquiry is whether appellant knowingly omitted or understated his earnings from employment for
the periods covered by the CA-1032 forms. The term knowingly as defined in OWCP’s
implementing regulations and Board precedent means with knowledge; consciously;
intelligently; willfully; intentionally.13 The language on CA-1032 forms is clear and
unambiguous in requiring a claimant to report earnings for the previous 15 months from any
employer, self-employment or a business enterprise in which he or she worked. The forms

7

Anthony V. Knox, 50 ECAB 402 (1999).

8

20 C.F.R. § 10.5(n).

9

See F.H., Docket No. 07-1379 (issued November 24, 2008).

10

Terry A. Geer, 51 ECAB 168 (1999).

11

20 C.F.R. § 10.5(g).

12

Robert R. Holmes, 49 ECAB 161 (1997); supra note 8.

13

Supra note 3.

6

further emphasize that severe penalties may be applied for failure to report all work activities
thoroughly and completely.14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant forfeited his right to
compensation for periods between January 17, 1996 and April 15, 2008. The record establishes
that appellant omitted employment activities and earnings on CA-1032 forms completed for
periods between January 17, 1996 and April 15, 2008. In these forms, OWCP notified him of his
responsibility to complete the forms and provide relevant information concerning his
employment status and earnings during the periods covered by the forms. The record reveals,
however, that appellant had employment and earnings during the periods covered by these forms
in that he was self-employed and running his own real estate and farming businesses and had
earnings from this employment.
An investigation conducted by Investigator Kisner from the employing establishment’s
FECA Fraud Investigation Unit revealed that appellant engaged in employment activities for
which he received earnings from January 17, 1996 to April 15, 2008. In an August 13, 2008
report, he documented that appellant was the owner of Lyndal Carey Farms and that from 1996
to 2006 appellant engaged in real estate transactions and tenant farming, managed and sold oil,
gas and mineral rights on the lands, leased land to tenant farmers and sold the land for profit or
divided it to sell as residential plots. Investigator Kisner also documented that he received over
$92,000.00 in farm subsidies from the USDA under its CRP during this period. His report
showed that appellant engaged in employment activities and had earnings for the periods
January 17, 1996 to April 15, 2008 during the 15-month period covered by each CA-1032 form
he signed. On December 5, 2008 Mr. Seagrist, Chief of Real Estate of the Mississippi
Valley/Vicksburg District, advised Investigator Kisner that appellant’s real estate activities
resembled the duties of an employing establishment journeyman realtor. He stated that
appellant’s activities constituted land speculation since he purchased a property and quickly
turned it over to take advantage of fiscal growth. Investigator Kisner concluded on
September 7, 2012 that appellant was self-employed as he was heavily involved in acquiring
land, subdividing the land and managing the land between 1994 and 2010 and he routinely
performed activities that were the same as those listed in his former realty specialist position. He
stated that proof of appellant’s real estate transactions were found in county court records which
showed the purchase, management and sale of real estate and mineral rights. Investigator Kisner
further stated that USDA records showed management of properties for which appellant received
farm subsidies.
Special Agent Reich, the employing establishment’s FECA Fraud Investigation Unit,
detailed an interview that he conducted with appellant on April 14, 2009. Appellant stated that
since 1995 he had purchased three farms and leased them to farmers for profit. He sold two of
the farms in 2000 and 2006 for profit. Appellant stated that he purchased his first farm without a
real estate agent and rented and leased farms without the aid of a real estate agency. He
acknowledged that he still owned a farm and leased 2,500 acres for $5.00 an acre on a yearly
14

A.C., Docket No. 11-1760 (issued April 13, 2012).

7

basis and received yearly subsidies of $35.00 an acre for approximately 800 acres from the
USDA. Appellant related that he did not know how much money he received from leasing his
farms, profits from the sale of his farms and subsidies he received from the USDA. He admitted
that he did not report these activities on his CA-1032 forms, but contended that he was unaware
that the monies he received from renting and leasing his farms and subsidies were considered
income and should have been reported on his CA-1032 forms.
The Board has distinguished between income received from investment and earnings
received by performing work. The former is not considered to be evidence of a claimant’s
ability to work and earn wages, but rather is considered to be a return on investment. The latter
is considered to be wages if the source of income can be established to be the product of the
claimant’s work.15 The present case is similar to Anthony V. Knox16 where the claimant worked
on his farm, had earnings from rental income from his and his family’s rental properties and was
actively involved in the maintenance and management of these properties. The Board found that
the claimant forfeited his compensation for periods between April 17, 1986 through
April 30, 1992 because the evidence established that he was an investor in real estate transactions
and owned multiple rental properties, but that he was also an active manager of his own and his
family’s properties from which he derived earnings that he knowingly failed to report on
CA-1032 forms submitted to OWCP. The present case is also similar to P.K.,17 where the
claimant was the proprietor and president of a real estate development business. He oversaw
numerous real estate development deals that included the purchase and sale of property which
resulted in aggregate profits of several hundred thousand dollars. The Board found that the
claimant forfeited his compensation for periods between November 12, 2002 and
February 12, 2004 as the evidence established that his real estate activities, including running his
own real estate business, were too extensive to be considered merely a passive business
investment. The Board found there was no question that the claimant had earnings as the
proprietor and owner of a real estate development business during the period in question which
he knowingly failed to report on his CA-1032 forms.
In the present case, appellant collected money from leasing his farms without the aid of a
real estate agent for profit, managed and sold oil, gas and mineral rights on the lands and sold the
land for profit or divided it to sell as residential plots and received over $92,000.00 in farm
subsidies from the USDA based on the above-noted evidence. As in Knox and P.K., appellant
actively participated in the operation of his farming and real estate business enterprises and was
obligated to report as earnings the amount that would have been paid to a person doing the
work.18 The farm subsidies he received were a benefit provided by the government to a work
enterprise.19 As noted above, reimbursed expenses are considered earnings from employment or
15

Supra note 7.

16

Id.

17

Docket No. 09-790 (issued December 3, 2009).

18

Supra note 7.

19

A subsidy is defined as a grant of money usually made by the government to any enterprise whose promotion is
considered to be in the public interest. BLACK’S LAW DICTIONARY (9th ed. 2009); see J.J., 56 ECAB 542 (2009).

8

self-employment. The subsidies are remuneration to appellant and the value of such
remuneration constitutes earnings.20 The Board finds that the evidence of record establishes that
he was more than a passive investor in a farming and real estate business, but was an active
owner running his farming and real estate business for which he had earnings during the period
in question.
The Board further finds that appellant knowingly failed to report earnings and
employment activities during the relevant period. The CA-1032 forms signed by appellant used
such terms as business, enterprise and service to explain the obligation for reporting all forms of
employment, self-employment such as, farming, sales, service or operating a business and
earnings. It also stated that he must show as rate of pay what it would have cost to have hired
someone to perform the work he did. Appellant did not report his self-employment for the
period January 17, 1996 through April 15, 2008 as required. The explicit language of the
CA-1032 forms clearly advised him that the nature of his work running a farming and real estate
business would require him to report such employment activities on the forms. Appellant’s
signing of strongly-worded certification clauses on the CA-1032 forms further shows that he was
aware of materiality of his failure to report his employment. Based on the evidence of record,
the Board finds that he knowingly omitted earnings.21 Accordingly, the Board finds that OWCP
properly determined that appellant forfeited his right to compensation for the period
January 17, 1996 to April 15, 2008. Appellant received $321,372.16 in compensation during the
stated period and, therefore, he forfeited compensation in this amount.
On appeal, counsel cited Jack Sipe22 to support her contention that the farm subsidies
appellant received from USDA for not farming his land constituted passive investment income
which he was not required to report to OWCP. The instant case can be distinguished from Sipe.
In Sipe, the Board found that OWCP improperly determined that the claimant forfeited his right
to compensation benefits for failing to report income derived from the sale of cattle raised on the
farm he owned. The Board stated that the evidence did not show that any income the claimant
received from his cattle operation was the product of his work, rather it represented a return on
his capital. The Board noted that the claimant occasionally used his tractor, sold hay, checked on
the cattle and sometimes fed them, but that these were not the type of activities that would
constitute a job that would generally be available in the open market and that it would be
impractical to place a monetary value on the claimant’s services.23 In the instant case, the record
establishes that appellant was involved in a pattern of farming and real estate transactions and
received income from leasing his land to tenant farmers, dividing the land into residential plots,
20

As the Board explained in Christine P. Burgess, supra note 3, every form of remuneration, including
reimbursed expenses and similar benefits, must be reported as earnings.
21

See generally Lewis George, 45 ECAB 144 (1993).

22

See supra note 2.

23

See also Vernon Booth, 7 ECAB 209 (1954) which involved an injured federal employee who owned a tavern.
The Board stated that income or profits from business are not generally held to be the fruits of wage-earning
capacity but of the investment, the management and the business acumen of the owner; and the return on the
investment of an employee’s capital, even though augmented by his personal attention in looking after the business
in which it is invested, cannot be considered as if it were wages.

9

and selling oil, gas and mineral rights from his lands. The evidence also establishes that from
1996 to 2006 he received more than $92,000.00 in farm subsidies from the USDA which
constitute earnings.24 For the stated reasons, the Board finds that appellant’s farming and real
estate activities were too extensive to be considered merely a passive business investment.
Appellant actively participated in the operation of his business enterprise and was obligated to
report as earnings the amount that would have been paid to a person doing the work.25
Counsel cited to Christine C. Burgess26 and contended that appellant was not subject to
forfeiture because he did not knowingly fail to report his earnings as he relied on information
from an OWCP claims examiner who advised him that his farm subsidies did not constitute
income for purposes of completing a Form CA-1032. Appellant did not submit any evidence to
support this assertion. Further, even if he received such advice, the advice would not be
sufficient, in and of itself, to relieve appellant of his responsibility to report earnings from
self-employment or to show that he did not knowingly fail to report earnings. The present case is
distinguishable from Burgess. In Burgess, the Board found that the claimant did not knowingly
fail to report earnings. The finding was based in part on the claimant’s receipt of advice from
her former boss at the employing establishment that she need not report an arrangement where
she served as an escort for tours. However, in Burgess, the “employment” situation was more
ambiguous than that in the present case, as the claimant there was told she was a volunteer whose
reimbursements were not taxable. As noted above, Form CA-1032 specifically stated that
earnings from self-employment must be reported over the prior 15-month period, as it was in
appellant’s farming and real estate business. Therefore, appellant knowingly omitted his
earnings under section 8106(b)(2) of FECA by failing to report his employment activities and
earnings on the applicable CA-1032 forms for the period January 17, 1996 to April 15, 2008, as
he was on notice that he must report earnings from self-employment. The Board finds, therefore,
that OWCP properly determined that appellant forfeited his compensation for the period in
question.
LEGAL PRECEDENT -- ISSUE 2
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 his duty.27 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.”28

24

See supra note 19.

25

Supra note 7.

26

See supra note 3.

27

5 U.S.C. § 8102(a).

28

Id. at § 8129(a).

10

ANALYSIS -- ISSUE 2
The Board finds that appellant received a $321,372.16 overpayment of compensation.
For the reasons explained above, appellant forfeited his compensation for the period
January 17, 1996 to April 15, 2008. The evidence of record includes payment documents and
printouts which show that he received $321,372.16 in compensation during this period. Due to
the forfeiture of compensation, appellant would not be entitled to this compensation and,
therefore, he received a $321,372.16 overpayment of compensation.
On appeal, counsel contended that the amount of the overpayment is incorrect and that
OWCP did not adequately explain how the overpayment occurred. However, she did not submit
any evidence to support her contention. The Board notes that while OWCP initially determined
an incorrect amount for the overpayment in its preliminary determination, OWCP’s hearing
representative subsequently corrected the overpayment amount and explained the basis for her
calculation. There is no evidence that the overpayment did not occur as found by OWCP. The
Board finds that OWCP properly determined that appellant received an overpayment of
compensation in the amount of $321,372.16 from January 17, 2006 to April 15, 2008 as he
forfeited his compensation for failure to report his self-employment earnings during this period.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA29 provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.30 Thus, OWCP may not waive the overpayment of compensation
unless appellant was without fault.31 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.32
On the issue of fault, section 10.433 of OWCP’s regulations provides that 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

29

5 U.S.C. § 8129(b).

30

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

31

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

32

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

11

“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”33
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide in relevant part:
“Whether or not OWCP 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.”34
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant was at fault in creating
the $321,372.16 overpayment because he failed to provide information which he knew or should
have known to be material on CA-1032 forms covering the period January 17, 1996 to
April 15, 2008. As stated, the record establishes that appellant had unreported earnings from
self-employment and knowingly failed to furnish this material information to OWCP. Appellant
signed certification clauses on the CA-1032 forms which advised him in explicit language that he
might be subject to civil, administrative or criminal penalties if he knowingly made a false
statement or misrepresentation or concealed a fact to obtain compensation. By signing the
forms, he is deemed to have acknowledged his duty to fill out the forms properly, including the
duty to report any employment, self-employment or involvement in a business enterprise.
Appellant failed to furnish information that he knew or should have known to be material to
OWCP. The Board finds, therefore, that he was at fault in the creation of the overpayment in the
amount of $321,372.16 and is precluded from receiving a waiver.35
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.36 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.37
On appeal, counsel contends that appellant was denied due process when he was deprived
of his right to submit new evidence or argument at a prerecoupment hearing. However, she did
not submit any evidence to support her contention. OWCP issued a preliminary determination of
overpayment on March 27, 2012 and provided appellant 30 days to request a prerecoupment
33

20 C.F.R. § 10.433(a).

34

Id. at § 10.433(b); supra note 32.

35

D.F., Docket No. 11-1595 (issued February 1, 2012).

36

Cheryl Thomas, 55 ECAB 610 (2004).

37

See Desiderio Martinez, 55 ECAB 245 (2004).

12

hearing. On April 11, 2012 counsel disagreed with the proposed action and requested a
prerecoupment hearing before an OWCP hearing representative. A telephone prerecoupment
hearing was held on August 9, 2012 because appellant was unable to travel to the hearing
location due to his medical conditions and surgeries. Appellant was represented by counsel and
he testified during the August 9, 2012 telephone hearing about his farm subsidies and failure to
report them to OWCP. In light of the foregoing, the Board finds that OWCP did not deny
appellant due process.
CONCLUSION
The Board finds that appellant forfeited his compensation for the period January 17, 1996
to April 15, 2008, that he received a $321,372.16 overpayment of compensation and that he was
at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.38
Issued: September 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

38

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a
member of the Board after May 16, 2014.

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Fort Myers, FL, Employer
__________________________________________
Appearances:
Martin L. Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1384
Issued: April 8, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On June 11, 2019 appellant, through counsel, filed a timely appeal from a February 28,
2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 19-1384.2
On April 19, 2014 appellant, then a 74-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on that date he strained his shoulder when lifting
a heavy bag from the floor onto a belt while in the performance of duty. His claim was accepted
1

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

The Board notes that, following the February 28, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

for tear of the right shoulder and sprain of the right shoulder. Commencing June 15, 2014 appellant
was compensated on the supplemental rolls and commencing June 26, 2016 he was compensated
on the periodic rolls.
In a January 24, 2019 preliminary notice, OWCP advised appellant of its determination
that he had received an overpayment of compensation in the amount of $33,823.43 because he
received Social Security Administration (SSA) age-related retirement benefits for his federal
service, as well as Federal Employees’ Compensation Act (FECA) benefits for the period from
June 15, 2014 through January 5, 2019 without an appropriate offset. It also informed him of its
preliminary determination that he was at fault in the creation of the overpayment because he
accepted payments, which he knew or should reasonably have known were incorrect.
Appellant contested the preliminary determination as to the fact and amount of the
overpayment and the finding of fault.
By decision dated February 28, 2019, OWCP finalized its determination that appellant
received a $33,823.43 overpayment of compensation for the period from June 15, 2014 through
January 5, 2019 because he received a prohibited dual benefit due to his receipt of FECA benefits,
while also receiving SSA age-related retirement benefits without an appropriate FERS offset. It
found that he was at fault in the creation of the overpayment, thereby precluding waiver of recovery
of the overpayment.
The Board notes that OWCP determined that appellant received an overpayment of
compensation based on information provided by SSA in its December 14, 2018 FERS/SSA offset
calculation worksheet. The worksheet outlined the effective dates pertaining to the offset, noting
that, effective December 2014, SSA rate with FERS was $915.00 and SSA rate without FERS was
$280.40, amounting to a monthly offset of $634.60 and an overpayment of $7,636.12 for the year
beginning December 1, 2014. However, the record reflects that a September 10, 2015 SSA/FERS
dual benefits calculation worksheet documented appellant’s December 2014 SSA rate with FERS
was $915.10 and SSA rate without FERS was $886.30. Therefore, the record does not support
that the overpayment was calculated correctly as previously submitted documentation from SSA
provides differing rates for the same period.
The Board has held that, in overpayment cases, it is essential that OWCP provide the
recipient of compensation with a clear statement showing how the overpayment was calculated. 3
OWCP’s procedures place the responsibility on the claims examiner to carefully review the file in
situations where a dual benefit might possibly occur, including the responsibility of contacting the
Office of Personnel Management.4 With respect to the fact and amount of overpayment, the Board
finds that OWCP has not adequately explained how the amount of the overpayment was
determined in light of the different rates provided by SSA pertaining to SSA age-based retirement
benefits with and without FERS when determining the offset amount.5 On remand OWCP should
3

J.M., Docket No. 18-1505 (issued June 21, 2019); Teresa A. Ripley, 56 ECAB 528 (2005).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.3 (February 1995).

5

K.H., Docket No. 18-0171 (issued August 2, 2018).

2

further clarify the applicable rates with SSA to determine the fact and amount of overpayment. 6
The Board therefore finds that the overpayment determination must be set aside and the case
remanded for further development of the evidence to be followed by a de novo decision.7
IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: April 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6

C.C., Docket No. 18-0079 (issued May 2, 2018).

7

A.S., Docket No. 17-1459 (issued December 22, 2017).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, WILMER
PROCESSING & DISTRIBUTION CENTER,
Edison, NJ, Employer
__________________________________________

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

Docket No. 16-0430
Issued: August 29, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 6, 2016 appellant, through counsel, filed a timely appeal from an October 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits on June 25, 2015 because the accepted conditions
1

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

5 U.S.C. § 8101 et seq.

had resolved with no residuals; and (2) whether appellant established that she had any continuing
employment-related disability or condition after June 25, 2015 due to a July 10, 2013
employment injury.
On appeal counsel asserts that the statement of accepted facts (SOAF) was deficient
because it did not identify appellant’s prior work injuries and diagnostic study reports and,
therefore, the report of the impartial medical examiner is of diminished probative value.3
FACTUAL HISTORY
On July 15, 2013 appellant, then a 43-year-old custodial laborer, filed a traumatic injury
claim (Form CA-1) alleging that she sprained her right knee on July 10, 2013 when she tripped
over a bolt which was fastened to the floor at work. She twisted her right knee, hip, and lower
back. Appellant stopped work on July 26, 2013.
In support of her claim, appellant submitted a July 26, 2013 report in which Dr. Mark
Filippone, a Board-certified physiatrist, noted the history of injury, stating that appellant tripped
over a protruding bolt and rotated to the right, “apparently” badly twisting her right knee, right
hip, and jerking her low back. Dr. Filippone indicated that appellant did not fall to the ground
and continued working in pain. He provided physical examination findings and diagnosed acute
internal derangement of the right knee, right hip, and low back.
By decision dated September 26, 2013, OWCP denied the claim.
October 4, 2013 x-rays of the right knee, right hip, and pelvis demonstrated mild
degenerative changes. An October 30, 2013 magnetic resonance imaging (MRI) scan of the right
knee demonstrated small knee effusion with no meniscal tears, patellofemoral, medial, and
lateral joint compartment osteoarthritic changes, and changes in the distal femur most consistent
with hematopoietic marrow.
Appellant requested reconsideration of the September 26, 2013 decision on
October 23, 2013.
Appellant briefly returned to work on November 5, 2013. She did not return after that
date. Dr. Filippone continued to submit reports describing her condition and care.
On January 16, 2014 OWCP accepted unspecified internal derangement of the right knee
as well as derangement of the right hip, right thigh, and right back. Appellant received wageloss compensation beginning September 10, 2013 on the supplemental rolls.
A February 5, 2014 MRI scan of the lumbar spine demonstrated disc herniations at L2-3
and L4-5 and a disc bulge at L3-4. In February 2014, Dr. Yaser El-Gazzar, an orthopedic
surgeon, began treating appellant. He diagnosed a possible medial meniscus tear and
recommended a repeat MRI scan of the right knee. A February 11, 2014 MRI scan showed a
3

Counsel specifically stated that appellant had a prior right knee injury accepted under OWCP file number
xxxxxx805 and a back injury accepted under file number xxxxxx881. He noted that the SOAF provided to
Drs. Jeffrey F. Lakin and Edward Krisiloff, both Board-certified orthopedic surgeons, did not include MRI scans
that revealed disc herniation and did not review electrodiagnostic testing performed on May 20, 2014.

2

small meniscus tear and a possible mild quadriceps tendon tear. On February 20, 2014
Dr. Filippone noted the lumbar MRI scan findings.
He performed lower extremity
electrodiagnostic studies that day, finding partial denervation in muscles innervated by L2-3 to
L5-S1 nerve roots. On February 28, 2014 Dr. Joseph Ibrahim, Board-certified in physical
medicine and rehabilitation and pain medicine, began pain management.
On March 18, 2014 appellant filed a claim for recurrence of disability effective
November 5, 2013.
Dr. Filippone subsequently referred appellant to Dr. Marc A. Cohen, a Board-certified
orthopedic surgeon, for consultation. In an April 28, 2014 report, Dr. Cohen reported that
appellant had back pain after the July 10, 2013 employment injury, but that it became
significantly worse on July 26, 2013. He described physical examination findings, noted the
lumbar MRI scan findings and diagnosed lumbar discogenic pain with bilateral radiculopathy.
A May 30, 2013 computerized tomography (CT) scan of the lumbar spine,
postdiscogram, was submitted to OWCP on June 25, 2014. The study, which predated the
July 10, 2013 work injury, showed annular tears with disc bulging at L2-3 and L5-S1, a disc
herniation at L3-4, and an annular tear at L4-5. The report was addressed to Dr. Ibrahim.
Dr. Ibrahim performed a diagnostic lumbar discogram on May 30, 2014. On June 23,
2014 Dr. Cohen reviewed the discogram and recommended spinal fusion surgery. He requested
authorization from OWCP on June 25, 2014.
On May 15, 2014 OWCP accepted the November 5, 2013 recurrence. Appellant received
compensation on the supplemental rolls until she was placed on the periodic compensation rolls.
On October 20, 2014 OWCP referred appellant to Dr. Lakin for a second opinion
evaluation as to whether appellant continued to be disabled from the accepted conditions,
whether any additional conditions should be accepted and whether the requested surgeries should
be authorized. The SOAF provided by OWCP described the work injury, the accepted
conditions, and included a list of diagnostic tests performed, including an MRI scan on the
lumbar spine on February 5, 2014 and lower extremity electrodiagnostic testing on
February 20, 2014.
On September 3, 2014 Dr. Filippone reported appellant’s continued complaints of mid
and low back, right knee, right hip, and right shoulder pain. He performed physical examination
and advised that she remained totally disabled.
In a November 3, 2014 report, Dr. Lakin described the July 10, 2013 employment injury,
appellant’s complaints of worsening lower back pain, constant right knee pain, and his review of
the medical record, including diagnostic studies. Following physical examination, he advised
that she had no residuals of the accepted conditions and could return to full-duty, full-time work.
Dr. Lakin indicated that, while appellant had some tenderness of the lumbar spine and decreased
range of motion, this was not due to the accepted conditions, but to preexisting arthritis. He
advised that imaging suggested a preexisting condition to the lumbar spine, and that she had a
temporary aggravation, which had resolved. Dr. Lakin further indicated that the requested
surgery was not due to a condition caused by the July 10, 2013 employment injury. He

3

concluded that appellant had recovered from the employment injuries and needed no further
treatment for them.
Dr. Filippone, Dr. El-Gazzar, and Dr. Ibrahim continued to submit reports describing
appellant’s condition and treatment. A December 2, 2014 MRI scan of the right knee
demonstrated intact anterior cruciate and posterior cruciate ligaments; intact medial, lateral, and
medial collateral ligaments; and intact patellar tendon. A minimal partial tear of the superficial
fibers of the distal quadriceps tendon and chondromalacia patella were reported. On January 13,
2015 Dr. El-Gazzar noted the MRI scan findings.
OWCP determined that a conflict in medical evidence had been created between
Dr. Lakin and Dr. Cohen regarding the need for further medical treatment, including surgery for
the accepted conditions, and whether there was continuing disability due to the accepted
employment injury. It referred appellant to Dr. Krisiloff, a Board-certified orthopedic surgeon,
for an impartial evaluation. Dr. Krisiloff was provided a set of questions and a SOAF. The
SOAF provided to Dr. Krisiloff was identical to that provided Dr. Lakin with the exception that
examination by Dr. Lakin was added.
In a January 20, 2015 report, Dr. Krisiloff described the employment injury, appellant’s
complaints of right knee and lumbar pain radiating to the right hip, and his review of the medical
record, including radiographic studies. He advised that she was five feet five inches tall,
weighed approximately 235 pounds, and was wearing a brace on her right knee, but appeared to
be able to walk, sit, stand, and get up on the examining table without any significant difficulty.
Examination of the lumbar spine revealed stiffness and discomfort, but no tenderness with
percussion over the lumbar spine. Straight-leg rising did not cause any significant discomfort
and there was no pain with hip joint motion. Examination of the right knee revealed no obvious
warmth or swelling with mild patellofemoral joint crepitus and full but painful extension and
excellent quadriceps strength. There was no obvious instability. Lower extremity strength and
sensation were normal, and reflexes were symmetric and physiologic.
Dr. Krisiloff advised that on July 10, 2013 appellant had sprained her lower back and
right knee joint. He opined that the lower back sprain caused her right hip joint discomfort and
that she currently had no residuals or disability due to the July 2013 work injury and was capable
of returning to full duty, without restriction. Dr. Krisiloff noted that the radiographic record
indicated that appellant had a preexisting lumbar spine and right knee condition. He opined that
the findings seen on October 2013 studies, several months after the work injury, could not be
directly caused by the work injury, advising that such changes took place over years, not several
months. As to the diagnosis of either a partial quadriceps tendon tear or perhaps quadriceps
tendinitis, Dr. Krisiloff opined that, if one assumed that appellant had injured her quadriceps in
July 2013, it would make medical sense to see some changes on the initial MRI scan done
several months after the incident, noting that the initial knee MRI scan did not reflect any
significant quadriceps injury, and it was only the second study that showed possible injury or
tendinitis, and the most recent study showed only minimal change. He opined that the MRI
scans did not reflect any significant clinical quadriceps problem and that any knee discomfort
was caused by the underlying conditions and not an injury to her quadriceps tendon, advising
that the July 2013 work injury caused a temporary aggravation of preexisting arthritic changes
that had resolved.

4

Dr. Krisiloff further advised that the July 2013 injury caused a temporary aggravation of
her underlying degenerative changes in the lumbar spine, that had resolved, and that her current
symptoms were due to the underlying degenerative condition. He agreed with Dr. Lakin that she
was able to return to her full-duty, full-time position, based upon his review of the medical
records and physical examination. Dr. Krisiloff further advised that the claim should not be
expanded, finding no other conditions causally related to the employment injury. He reiterated
that appellant had preexisting arthritic changes in the right knee and a degenerative lumbar spine
condition, and that the work injury merely temporarily aggravated these conditions. Dr. Krisiloff
advised that, while surgery could be indicated for a degenerative lumbar condition, her lumbar
condition was not employment related and, since she was capable of full-time, full-duty
employment, there was no need for the extensive surgery recommended. He concluded that
appellant’s prognosis was good and that she was capable of functioning at a high level.
In reports dated January 21 and February 24, 2015, Dr. Filippone advised that appellant’s
physical examination was unchanged, and that she had too much right knee, right hip, and low
back pain to work.
On March 24, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits. It found that Dr. Krisiloff’s opinion, that she no longer had disability or
residuals due to the accepted conditions, constituted the weight of the medical evidence.
Appellant, through counsel, disagreed with the proposed termination. Medical evidence
submitted included an April 16, 2015 x-ray of the lumbar spine that demonstrated degenerative
disc disease and facet arthropathy.
In a December 18, 2014 report, Dr. Robert F. Heary, a Board-certified neurosurgeon,
noted that on July 10, 2013 appellant tripped and fell and developed low back pain. He reported
her complaint of radiating low back pain with numbness, paresthesias, and weakness. Lower
extremity motor examination was 5/5 on the right and slightly 4+/5 to 5/5 on the right. Pinprick
examination was diminished on the right in the L3 and L5 dermatomes and in the L4 and S1
dermatomes on the left. Bilateral straight leg raising was positive for back pain only. Dr. Heary
reviewed the February 5, 2014 lumbar MRI scan and February 20, 2014 electrodiagnostic study.
His impression was low back pain with minimal lower extremity radiating pain and multilevel
lumbar disc disease. Dr. Heary advised that appellant was not a good surgical candidate due to
her morbid obesity and ongoing smoking.
Dr. Heary noted examining appellant again on April 18, 2015. At that time he advised
that, if she quit smoking and lost weight, he would revisit the possibility of lumbar surgery. In a
May 20, 2015 report, Dr. Heary reviewed his two prior examinations and indicated that appellant
had been in her usual state of good health when a work-related accident occurred on July 10,
2013 and that subsequent to this she developed low back pain, which had been persistent and
intractable. He noted that she had undergone a prolonged course of conservative therapy and
that more aggressive treatment, such as a surgical fusion, could be needed at some point in a
foreseeable future if this conservative treatment regimen was not successful.
In reports March 24 and April 9, 2015, Dr. El-Gazzar noted seeing appellant for right
knee pain. Appellant was still in a brace and complaining of pain and occasional numbness.

5

Dr. El-Gazzar diagnosed quadriceps tendon rupture, synovitis/tendinitis, sprain/strain of knee,
and plica/ruptured synovium. He recommended right knee surgery.
On March 31, 2015 Dr. Filippone noted appellant’s complaints of right hip, thigh, and
low back pain that continued despite not working, modifying activities of daily living, and using
medications. He advised that her examination was unchanged, and that she continued to be
totally disabled. Dr. Filippone maintained that neck, right knee, right leg, and low back injuries
were caused by the slip and fall at work. In a May 18, 2015 report, he noted that he was treating
appellant for a work-related upper extremity injury. Dr. Filippone reviewed diagnostic studies,
noted her current complaints, and diagnosed low back derangement and internal derangement of
the right knee, right thigh, and right hip.
On April 7, 2015 Dr. Cohen noted his disagreement with other physicians and advised
that appellant would benefit from surgery due to an aggravation of her preexisting disc condition
that was related to an employment injury.
In a June 25, 2015 decision, OWCP finalized the termination of wage-loss and medical
benefits. It found that the weight of the medical evidence rested with Dr. Krisiloff.
Appellant, through counsel, timely requested a hearing before an OWCP hearing
representative. In a May 23, 2015 report, received by OWCP on June 29, 2015, Dr. Cohen noted
appellant’s report of the history of injury. He reviewed the medical evidence, noting diagnoses
of lumbar degenerative disc disease with radiculopathy on MRI scans and electrodiagnostic
testing. Dr. Cohen described appellant’s examination findings on April 29, 2014 and diagnosed
symptomatic lumbar internal disc disruption disease and lumbar spinal stenosis at L3-4 and L4-5,
and lumbosacral radiculopathy. He disagreed with Dr. Krisiloff that the employment injury
caused a temporary aggravation of underlying degenerative disc disease of the spine, opining
that, although she had a preexisting condition, the employment injury worsened it to the extent
that it had become unmanageable and was significantly worsened such that she now needed
surgery.
In form reports dated June 19 to September 16, 2015, Dr. Filippone reiterated his findings
and conclusions, noting increased low back and right knee pain. He referred to his July 26, 2013
report and continued to advise that appellant could not work. On July 21, 2015 Dr. Filippone
advised that the medical history and review of systems was unchanged, and that there had been
no interval or intercurrent history of trauma or injury. He reviewed medical evidence and
advised that on examination appellant had marked right knee pain and back pain and spasm.4
Dr. Filippone disagreed with Dr. Krisiloff and the termination of benefits, maintaining that the
work injury caused her condition.
At the hearing, held on September 14, 2015 appellant testified that she had injured her
right wrist at work in 2003 and, in a case adjudicated by OWCP under file number xxxxxx805,
OWCP accepted a right knee condition due to an October 2004 injury.5 She stated that she was
4

Dr. Filippone referred to a July 3, 2013 report of his that is not found in the case record.

5

A February 7, 2003 right wrist injury, adjudicated by OWCP under file number xxxxxx862, was a short-term
closure injury. The October 27, 2004 injury, file number xxxxxx805, was accepted for right knee contusion. These
claims are not presently before the Board. OWCP adjudicated the instant case under file number xxxxxx206.

6

on full duty on July 10, 2013 when she tripped on a bolt in the floor. Appellant indicated that
she did not fall, but twisted her lower back, hip, and right knee and began seeing Dr. Filippone
shortly thereafter. She described current activities, stating that she did typical household chores
and that too much walking up and down steps bothered her knee and that sitting for too long
bothered her back. Counsel argued that the SOAF provided OWCP referral physicians was not
clear as it did not include previous back and knee injuries or electrodiagnostic testing done in
May 2014. He maintained that a February 5, 2014 lumbar spine MRI scan showed significant
changes when compared to a May 2013 study, and posited that Dr. Lakin agreed with the
diagnosis of disc herniations. Counsel concluded that Dr. Krisiloff’s report was insufficient
because he did not discuss prior injuries or diagnostic testing and did not state when the
diagnosed temporary aggravations ceased.
By decision dated October 27, 2015, an OWCP hearing representative found that the
weight of the medical evidence rested with the impartial opinion of Dr. Krisiloff and affirmed the
June 25, 2015 termination.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.9 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.10

6

Jaja K. Asaramo, 55 ECAB 200 (2004).

7

Id.

8

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

9

20 C.F.R. § 10.321.

10

V.G., 59 ECAB 635 (2008).

7

ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on June 25, 2015. The accepted conditions are unspecified
internal derangement of the right knee, derangement of the right hip, derangement of the right
thigh, and derangement of the right back. OWCP determined that a conflict in medical evidence
had been created between the opinions of Dr. Cohen, an attending Board-certified orthopedic
surgeon, and Dr. Lakin, an OWCP referral Board-certified orthopedist, regarding whether
appellant had the need for further medical treatment due to the accepted conditions and whether
she had any continuing disability causally related to the July 10, 2013 employment injury. It
then properly referred her to Dr. Krisiloff, also Board-certified in orthopedic surgery, for an
impartial evaluation.
In a January 20, 2015 report, Dr. Krisiloff described the employment injury, appellant’s
complaints of right knee and radiating lumbar pain, and his review of the medical record,
including radiographic studies. He described examination findings and advised that on July 10,
2013 she sprained her lower back and right knee joint. Dr. Krisiloff opined that appellant did not
currently have any residuals or disability due to the July 2013 work injury and was capable of
returning to full duty, without restriction. He explained that the radiographic record indicated
that she had preexisting conditions in her lumbar spine and right knee, noting that the findings
seen on October 2013 studies predated the work injury and demonstrated changes that occurred
over years. Dr. Krisiloff explained that, if one assumed that appellant injured her quadriceps in
July 2013, it would make medical sense to see some changes on the initial MRI scan done
several months after the incident, noting that this study did not reflect any significant quadriceps
injury, and it was only the second study that showed possible injury or tendinitis, and the most
recent study showed only minimal change.11 He related that the July 2013 work injury caused a
temporary aggravation of her underlying degenerative changes in the lumbar spine and right
knee that resolved, and that her current symptoms were due to the underlying degenerative
condition. Dr. Krisiloff found that appellant was able to return to her full-time, full-duty work,
based on his review of the medical record and her physical examination. He further advised that
the claim should not be expanded, finding no other conditions causally related to the
employment injury. Dr. Krisiloff noted that, while surgery could be indicated for a degenerative
lumbar condition, this was not work related and, since appellant was capable of full time full
duty, there was no need for the recommended surgery. He concluded that her prognosis was
good, and that she was capable of functioning at a high level.
The Board finds that Dr. Krisiloff provides a comprehensive, well-rationalized opinion in
which he clearly finds that residuals of appellant’s accepted conditions have resolved and that
she can return to her preinjury job as a custodial laborer. Dr. Krisiloff’s opinion is entitled to the
special weight accorded an impartial examiner and constitutes the weight of the medical
evidence.12

11

The first knee MRI scan in the record was done on October 30, 2013. The later studies were done on
February 11 and December 2, 2014.
12

See Sharyn D. Bannick, 54 ECAB 537 (2003).

8

The medical evidence appellant submitted prior to the termination is insufficient to
overcome the weight accorded Dr. Krisiloff as an impartial medical specialist regarding whether
she had residuals of her accepted conditions.
Dr. Filippone was consistent in his opinion that appellant’s current problems were caused
by the July 10, 2013 employment injury. He, however, did not sufficiently explain why she
continued to be totally disabled solely due to the employment injury when she had significant
preexisting degenerative changes. Moreover, in a March 31, 205 report, Dr. Filippone indicated
that appellant tripped and fell on July 10, 2013 when the record supports that she tripped, but did
not fall. Likewise, both Dr. Heary and Dr. El-Gazzar reported a history that she tripped and fell
on July 10, 2013. The Board has long held that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.13
In his April 7, 2015 report, Dr. Cohen merely noted his disagreement with other
physicians and advised that appellant would benefit from surgery due to an aggravation of her
preexisting disc condition that was related to an employment injury. The Board has long held
that reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved, are generally insufficient to overcome the weight accorded to the report of
the impartial medical examiner, or to create a new conflict.14 Dr. Cohen had been on one side of
the conflict resolved by Dr. Krisiloff.
The Board, therefore, concludes that Dr. Krisiloff’s opinion that appellant had recovered
from the employment injury is entitled to the special weight accorded an impartial medical
examiner15 and the additional medical evidence submitted is insufficient to overcome the weight
accorded him as an impartial medical specialist regarding whether she had residuals of her
accepted conditions. OWCP, therefore, properly terminated her compensation benefits on
June 25, 2015.16
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits on
June 25, 2015, the burden shifted to her to establish that she had any continuing disability
causally related to the accepted conditions.17 Causal relationship is a medical issue. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.18
13

Douglas M. McQuaid, 52 ECAB 382 (2001).

14

I.J., 59 ECAB 408 (2008).

15

See supra note 12.

16

Manuel Gill, 52 ECAB 282 (2001).

17

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

18

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence following the
June 25, 2015 termination to establish that she continued to be disabled after that date due to the
July 10, 2013 employment injury, accepted for unspecified internal derangement of the right
knee, derangement of the right hip, derangement of the right thigh, and derangement of the right
back.
As noted, Dr. Cohen was on one side of the conflict in medical evidence. While he
disagreed with Dr. Krisiloff’s opinion in a May 23, 2015 report, Dr. Cohen diagnosed
symptomatic lumbar internal disc disruption disease at L3-4 and L4-5, lumbar spinal stenosis at
L3-4, and L4-5 which have not been accepted as employment related.
Dr. Filippone submitted a number of additional reports after the June 25, 2015
termination. Most of these were form reports reiterating findings and conclusions. These are of
diminished probative value they do not contain sound medical reasoning establishing that
appellant was totally disabled after June 25, 2015 due to the accepted conditions from the
July 10, 2013 work injury.19 A medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.20 In his July 21, 2015 report, Dr. Filippone did not sufficiently explain the
mechanics of how the July 10, 2013 work injury, when appellant tripped, but did not fall, caused
such severe injuries that she continued to be totally disabled after June 25, 2015. Furthermore,
he referenced a July 3, 2013 report which is not found in the case record. As such,
Dr. Filippone’s opinion is entitled to little probative value and is insufficient to meet appellant’s
burden of proof to establish that she continues to have work-related disability due to the accepted
conditions.21
As to counsel’s assertions on appeal, the Board finds that the SOAF provided to
Drs. Lakin and Krisiloff was not deficient. Counsel asserts that the SOAF did not identify
appellant’s prior work injuries. However, OWCP procedures do not require a SOAF to include
all accepted conditions from other claims.22 The procedures specifically state that listing prior
claims is optional.23 Counsel further asserts that the SOAF did not reference a lumbar MRI scan
that revealed disc herniations. However, the SOAF clearly noted a February 5, 2014 lumbar
MRI scan that demonstrated disc herniations. Lastly, counsel argues that the SOAF did not
reference a May 20, 2014 electrodiagnostic study. However, there is no electrodiagnostic study
of that date found in the case record.

19

Sandra D. Pruitt, 57 ECAB 126 (2005).

20

T.M., Docket No. 08-975 (issued February 6, 2009).

21

S.S., 59 ECAB 315 (2008).

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809
(September 2009); see Richard O’Brien, 53 ECAB 234 (2001).
23

Id., at Chapter 2.809.6.a(1).

10

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on June 25, 2015 and that she has failed to establish
continuing employment-related disability after that date causally related to the July 10, 2013
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 29, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1683
Issued: January 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On August 6, 2012 appellant filed an application for review of an August 1, 2012
decision of the Office of Workers’ Compensation Programs (OWCP), which denied waiver of
overpayments in the amounts of $5,565.55 and $1,279.14.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In a previous appeal, the Board found that OWCP
properly determined that appellant received a $5,565.55 overpayment for the period February 21,
2008 to August 18, 2009; and $1,279.14 for the period September 24, 2009 to January 15, 2011.1
However, the Board found that the case was not in posture for a decision regarding his eligibility
for waiver of the overpayments. The Board found that an OWCP hearing representative did not
consider all of the financial documentation submitted by appellant. The Board found that there
were several discrepancies. For example, the Board noted that it was not clear why the hearing
representative allowed only $100.00 per month for food and nothing for clothing, when appellant
testified at his hearing that he spent $200.00 to $400.00 a month on food and $100.00 to $200.00
a month on clothing. The Board also noted that, beginning July 31, 2011, appellant’s net
compensation was reduced to $2,294.96 every four weeks. The Board found that further
development was needed to determine whether appellant’s monthly income exceeded his
expenses and whether recovery of the overpayment would cause undue hardship. The Board set
1

Docket No. 11-1868 (issued June 5, 2012).

aside OWCP’s August 4, 2011 decision on the issue of waiver and remanded the case for further
development as necessary on the issue of whether appellant was entitled to waiver.
On remand, the hearing representative merely reviewed the previous financial evidence
and hearing testimony in finding that waiver of the overpayment was not warranted. He did not
request updated evidence of appellant’s financial status to address the discrepancies noted in the
Board’s prior decision. The hearing representative should have provided appellant with a new
overpayment recovery questionnaire and allowed him an opportunity to complete this and
provide appropriate supporting evidence documenting his current financial status. The Board
has held that OWCP must rely on current financial evidence when determining eligibility for
waiver of an overpayment.2 For this reason, the case will be remanded to OWCP to further
consider appellant’s eligibility for waiver. Following such further development as OWCP deems
necessary, it shall issue an appropriate merit decision on the matter.
IT IS HEREBY ORDERED THAT the August 1, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: January 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

2

See C.S., Docket No. 12-313 (issued October 23, 2012).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sayre, PA, Employer
__________________________________________

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

Docket No. 14-1990
Issued: January 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 15, 2014 appellant, through her attorney, filed a timely appeal from an
April 18, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On July 12, 2012 appellant, then a 56-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained depression and anxiety as a result of her federal

1

5 U.S.C. § 8101 et seq.

employment.
May 9, 2012.

The reverse of the claim form indicated that she had stopped working on

In a May 9, 2012 statement accompanying her claim form, appellant reported that, since
her last “recurrence” in 2009, she had continued to seek psychiatric treatment.2 She stated that
she was moved to the Binghamton, NY worksite for three months, and it was nerve racking to
wait without knowing what would happen next as to the location of her work. According to
appellant, she was moved to the Sayre, PA facility as a carrier in October 2011, but was only
given training on driving an employing establishment vehicle, as upper management denied her
carrier academy training. She stated it was stressful to not “know the job” as well as she should
due to the lack of training, and it was not her choice to be placed as a carrier after spending 23
years as a postal clerk. Appellant reported that on May 8, 2012 she was treated in the emergency
room with complaints of a severe headache. She also indicated that she had been diagnosed with
a bone spur.
In a report dated May 9, 2012, Dr. Matthew D’Ortona, a psychologist, stated that
appellant had a recurrence of depression and anxiety due to job stress. In a May 17, 2012, he
opined that she was disabled for work.
In a letter dated August 16, 2012, an employing establishment human resources manager
controverted appellant’s allegations. He noted that she had filed numerous compensation claims
and indicated that she was a 24-year career employee who understood the programs and
procedures of the employing establishment. The manager stated that appellant was not required
to do more than her eight hours of work in a normal day. The employing establishment provided
a January 3, 2012 letter of warning issued to her which advised that on December 30, 2011 she
had failed to deliver express mail in a timely manner. It also submitted a union/employing
establishment “agreement” indicating that a meeting was held on February 2, 2012 regarding the
letter of warning, and the letter of warning would be expunged in six months.
On August 27, 2012 appellant stated that in April 2009 her office began downsizing and
this created problems in processing the mail. She reported it was stressful “not knowing what,
went [sic] or where I would be working” and “then the poor scheduling of the supervisors.
Pushing us to work as three people. Because they didn’t have enough people to cover the jobs.”
Appellant stated that she was sent to Binghamton, NY in February 2010, which was 59 miles
from her house. Then she was sent back to Elmira, NY where she did not know what jobs or
hours she would be working. Appellant indicated that she was given a job at the Sayre, PA
facility as a letter carrier in November 2011. She again stated that she did not receive classroom
training, noting that a part-time carrier accompanied her on the route the first two days.
According to appellant, there was a grievance filed as to the lack of proper training, but she had
no idea as to the outcome.
By decision dated January 7, 2013, OWCP denied the claim for compensation. It found
that appellant had not established a compensable work factor.

2

Appellant identified a prior OWCP claim number, and the record indicates that appellant had previously filed a
claim for an emotional condition.

2

Appellant requested a hearing before an OWCP hearing representative, which was held
on January 9, 2014. By letter dated February 12, 2014, an employing establishment health and
resource manager stated that appellant had worked very little in 2011 and 2012, with several
claims for compensation filed.
By decision dated April 18, 2014, the hearing representative affirmed the January 7, 2013
OWCP decision. He found that appellant had not established compensable work factors.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.3 This burden includes the submission of a detailed
description of the employment factors or conditions which she believes caused or adversely
affected the condition or conditions for which compensation is claimed.4 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with employment but nevertheless are not covered because they are found not
to have arisen out of employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his or her regular or specially assigned work duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.6
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively, or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8

3

Pamela R. Rice, 38 ECAB 838 (1987).

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

3

ANALYSIS
In the present case, appellant has filed a claim for compensation alleging that she
sustained an emotional condition as a result of her federal employment. As noted above, before
a claim for an emotional condition can be established, the record must establish that the
condition arose from a compensable work factor. The performance of regular or specially
assigned duties is a compensable work factor. In this case, however, appellant does not allege
the actual performance of her job duties caused an emotional condition.
The primary allegation is that appellant did not receive proper training as a letter carrier
after she was assigned to the Sayre, PA facility in November 2011. An allegation of inadequate
training is considered an administrative or personnel matter.9 It therefore is not considered a
compensable work factor, unless there is factual evidence establishing error by the employing
establishment in failing to provide adequate training. Although appellant referred to a grievance
filed regarding the allegation of inadequate training, no evidence was presented on the issue.
She did indicate that she received initial training from a part-time carrier. The Board finds that
there simply is no probative evidence of record establishing error by the employing
establishment with respect to carrier training.
Appellant also briefly raised an allegation with respect to workload, stating there were
not enough people to cover the required jobs. To the extent she alleges overwork as a work
factor, she must provide a sufficient factual basis for the allegation.10 In this case, appellant
provided little detail as to the allegation and the employing establishment did not support the
allegation. The record does not contain probative evidence with respect to an allegation of
overwork.
Another allegation of stress discussed by appellant was a general frustration at not
knowing what job or location she might have in the future, as there was much uncertainty in this
regard at the employing establishment. The Board has held that a reaction to uncertainty of
future employment is not a compensable work factor.11 This is a self-generated reaction that is
not related to the performance of regular or specially assigned duties.12
The remainder of appellant’s allegations, such as a disciplinary action, work scheduling,
or transfers are administrative or personnel matters.13 Again, there must be probative evidence
of error or abuse before a compensable work factor can be established. There is no evidence of
error or abuse in this case.

9

See supra note 7 (providing training is an administrative function of the employing establishment); see also T.S.,
Docket No. 10-1501 (issued May 25, 2011).
10

Loraine E. Schroeder, 44 ECAB 323 (1992).

11

Robert E. Whitney, Docket No. 97-1599 (issued February 25, 1999).

12

Id.

13

See R.K., Docket No. 11-343 (issued September 30, 2011).

4

The Board accordingly finds that appellant has not alleged and substantiated a
compensable work factor. Since appellant has not established a compensable work factor, the
Board will not address the medical evidence.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an emotional condition causally related to
compensable work factors.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2014 is affirmed.
Issued: January 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

14

See Margaret S. Krzycki, 43 ECAB 496 (1992).

5