United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jerome, ID, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 22-0003
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 1, 2021 appellant filed a timely appeal from a September 28, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,223.12 for the period July 19 through
August 14, 2021, for which she was without fault, because she continued to receive wage-loss
compensation after she returned to work; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2021 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome causally related to factors of her federal employment, including the repetitive nature of
her duties. OWCP accepted the claim for carpal tunnel syndrome of the right and left upper limb.
On May 18, 2021 appellant underwent an OWCP-authorized right carpal tunnel release and on
June 1, 2021 she underwent an OWCP-authorized left carpal tunnel release. OWCP paid her
wage-loss compensation by electronic funds transfer on the supplemental rolls beginning March 2,
2021 and on the supplemental rolls from March 2 through May 7, 2021, and on the periodic rolls
from March 8 through August 14, 2021.
Appellant returned to her full-time usual employment on July 19, 2021. In a telephone
memorandum (Form CA-110) dated August 13, 2021, she advised OWCP that she had submitted
paperwork showing that she had returned to work but had continued to receive compensation.
In an August 23, 2021 preliminary overpayment determination, OWCP notified appellant
of is preliminary finding that she had received an overpayment of compensation in the amount of
$3,223.12 because she returned to full-time work on July 19, 2021 but continued to receive wageloss compensation for total disability on the periodic rolls through August 14, 2021. It further
advised her of its preliminary determination that she was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised her that
she could request waiver of recovery of the overpayment. It further requested that she provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records supporting income and
expenses. Additionally, OWCP provided an overpayment action request form and notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
In an overpayment action request form dated August 29, 2021, appellant requested a
decision based on the written evidence. She contended that the recovery of the overpayment
should be waived, contending that she called and had sent forms to OWCP advising that she had
been released to return to work. On an accompanying OWCP-20 form, appellant listed monthly
income of $4,500.00 and monthly expenses of $1,565.00 for housing, $706.81 for utilities,
$2,854.92 for other expenses, and $500.00 for credit card payments, a total of $5,626.73. She
advised that she used any extra for food and clothing. Appellant indicated that she had funds on
hand of $157.39. She submitted financial documentation showing various bills and account
statements. Appellant further submitted a U.S. Individual Income Tax Return (Form 1040) filed
with her spouse showing income of $124,605.00 and taxable income of $99,595.00. She also
provided a statement showing that she had received a distribution of $14,169.00 in 2020 from her
Thrift Savings Plan (TSP).
By decision dated September 28, 2021, OWCP finalized its finding that appellant received
an overpayment of $3,223.12 for the period July 19 through August 14, 2021 because it had paid
her wage-loss compensation for total disability after she returned to work. It calculated the
overpayment by finding that she received net compensation in the amount of $3,342.49 for the

2

period July 18 to August 14, 2021. OWCP divided $3,342.49 by 28 days and multiplied by 27,
the number of days of the overpayment, to find a total overpayment of $3,223.12. It further
finalized its finding that appellant was without fault in the creation of the overpayment. OWCP
denied waiver of recovery of the overpayment. It found that based on a joint 2020 tax return,
appellant and her husband had an estimated income of approximately $6,389.00 per month after
taxes. OWCP further noted that appellant had not provided a breakdown of her assets, described
her other expenses of $2,854.92, or documented her utility expenses other than to submit a gas bill
of $72.00. It indicated that individual was responsible for providing information about income,
expenses, and assets. OWCP found that appellant should submit the full amount as recovery of
the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 2 Section 8129(a) of FECA provides, in pertinent part, that 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 b y the Secretary of Labor by
decreasing later payments to which an individual is entitled. 3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments u ntil the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation. 5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,233.12 for the period July 19 through August 14, 2021, for
which she was without fault because she continued to receive wage-loss compensation for total
disability after she returned to full-time work.
Appellant resumed to full-time regular employment on July 19, 2021. OWCP, however,
continued to pay her wage-loss compensation for total disability following her return to work

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

5

L.T., Docket No. 19-1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2020).

3

through August 14, 2021, which resulted in an overpayment of compensation. Appellant was not
entitled to receive temporary total disability benefits and actual earnings for the same time period. 6
In determining the amount of overpayment, OWCP calculated the net amount of disability
compensation that appellant had received for the period July 18 through August 14, 2021,
$3,342.49, divided this amount by 28, and multiplied the remainder by the 27 days that she worked
during this period to find an overpayment of $3,223.12. Thus, the Board finds that appellant
received an overpayment of $3,223.12 during the above-noted period.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered 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. 8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or f ormerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 9 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.10 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financ ial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
6

J.R., Docket No. 20-0025 (issued December 13, 2021); L.T., Docket No. 19-1389 (issued March 27, 2020); S.N.,
Docket No. 19-1018 (issued November 12, 2019).
7

J.R., id.

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400(2)(3) (September 2020).
10

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

Id. at Chapter 6.400.4(a)(2).

12

Id. at Chapter 6.400.4(b)(3).

4

worse.13 OWCP’s procedures provide that, to establish that a valuable right has been relinquished,
an individual must demonstrate that the right was in fact valuable, that he or she was unable to get
the right back, and that his or her action was based primarily or solely on reliance on the payment(s)
or on the notice of payment. 14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she did not fully complete the Form OWCP-20 or submit
adequate documentation of her income or expenses. In an OWCP-20 form dated August 29, 2021,
appellant listed monthly income of $4,500.00 and monthly expenses totaling $5,626.73. She
advised that she had assets of $157.39 and no money in stocks and bonds. Supporting
documentation, however, indicated that appellant had withdrawn $14,169.00 from her TSP in
2020. She thus had assets in a TSP but did not provide information regarding this account. Savings
in a TSP account are included in the asset base. 17 A tax return from 2020 further indicated that
appellant had more monthly income than disclosed on the OWCP-20 form. Although OWCP
advised her to submit a Form OWCP-20 and documentation fully substantiating her income and
expenses, she failed to do so, as required by section 10.438 of OWCP’s regulations. 18
As appellant did not submit sufficient financial inf ormation and documentation, the
evidence of record is, therefore, insufficient to establish that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience.19

13

20 C.F.R. § 10.437(a)(b); E.H., Docket No. 18-1009 (issued January 29, 2019).

14

Supra note 9 at Chapter 6.400.4c(3).

15

Supra note 9 at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17

See S.C., Docket No. 17-0762 (issued March 19, 2018); C.P., Docket No. 14-0975 (issued September 11, 2014).

18

20 C.F.R. § 10.438; see R.M., Docket No. 19-1570 (issued June 1, 2020).

19

See supra note 15; S.L., Docket No. 21-0902 (issued December 22, 2021).

5

Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment. 20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,223.12 for the period July 19 through August 14, 2021, for
which she was without fault, because she continued to receive wage-loss compensation after she
returned to work. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. 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. R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55
ECAB 610 (2004).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 21-1043
Issued: February 14, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 29, 2021 appellant filed a timely appeal from a May 6, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3

1
On his application for review (AB-1 Form), appellant indicated that he was appealing a May 6, 2021 decision.
He then referred to a preliminary overpayment determination dated November 2, 2020, which OWCP finalized by
decision dated December 30, 2020. An appeal of a final adverse OWCP decision must be filed within 180 days of the
decision. See 20 C.F.R. § 501.3(e). The 180th day following OWCP’s December 30, 2020 decision was Monday,
June 28, 2021. As this appeal was filed on June 29, 2021, the Board lacks jurisdiction to review the December 30,
2020 merit decision. See A.G., Docket No. 20-0290 (issued June 24, 2020; P.H., Docket No. 19-1354 (issued
March 13, 2020); E.H., Docket No. 19-0859 (issued December 10, 2019).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 6, 2021 decision, appellant submitted additional evidence to OWCP.
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 OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 23, 2021, for failure to complete a Form CA-1032 as requested.
FACTUAL HISTORY
On September 6, 1991 appellant, then a 26-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he injured his back when lifting sacks of mail while in the
performance of duty. He was off work until September 26, 1991. OWCP accepted the claim for
lumbar strain and displacement of lumbar intervertebral disc without myelopathy. Appellant then
filed an occupational disease claim (Form CA-2) for back conditions arising from his mail handler
duties beginning in 1992. OWCP accepted the claim for a herniated disc at L5-S1. It paid
appellant wage-loss compensation on the periodic rolls as of June 16, 2002.
Over the years, OWCP periodically requested that appellant submit financial disclosure
statements (Form CA-1032) which solicited information about his employment, volunteer work,
dependent(s) status, receipt of other federal benefits and/or payments, and third -party settlements.
On March 15, 2021 OWCP informed appellant that federal regulations required him to
execute an affidavit relative to any earnings or employment during the previous year and that a
Form CA-1032 was enclosed for that purpose. It notified him that he must fully answer all
questions on the enclosed Form CA-1032 and return it within 30 days or his benefits would be
suspended. OWCP mailed the letter to appellant’s last known address of record. No response was
received.
By decision dated May 6, 2021, OWCP suspended appellant’s wage-loss compensation
benefits, effective May 23, 2021, due to his failure to submit the Form CA-1032, as requested. It
advised that, if he completed and returned an enclosed copy of the Form CA-1032, his
compensation benefits would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially d isabled
employee to report his or her earnings from employment or self -employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. 4
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months. 5 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that

4

5 U.S.C. § 8106(b).

5

20 C.F.R. § 10.528.

2

time, OWCP will reinstate compensation retroactive to the date of suspension , if the employee
remains entitled to compensation.6
ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 23, 2021, for failure to complete a Form CA-1032 as requested.
On March 15, 2021 OWCP provided appellant with a Form CA-1032 and notified him that
federal regulations required him to complete the form and answer all questions concerning his
employment and earnings, or his benefits would be suspended. The record reflects that OWCP’s
letter was properly sent to appellant’s last known address of record.7
The record indicates that appellant failed to timely submit the Form CA-1032 as required.
Appellant was receiving wage-loss compensation on the periodic rolls and he was, therefore,
required to complete the CA-1032 form. His failure to file a CA-1032 form within 30 days resulted
in the suspension of compensation. Thus, the Board finds that OWCP properly suspended
appellant’s compensation benefits, effective May 23, 2021, pursuant to 20 C.F.R. § 10.528.8
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 23, 2021, for failure to complete a Form CA-1032 as requested.

6

Id.; see also id. at § 10.525.

7

See M.B., Docket No. 20-0865 (issued June 15, 2021); C.C., Docket No. 17-0043 (issued June 15, 2018); A.H.,
Docket No. 15-0241 (issued April 3, 2015) (under the mailbox rule, a document mailed in the ordinary course of the
sender’s business practices to the addressee’s last known address is presumed to be received by the addressee).
8

See W.L., Docket No. 18-1051 (issued March 24, 2021); see also R.B., Docket No. 20-176 (issued June 25, 2020).

3

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 14, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, CENTRAL SQUARE
POST OFFICE, Cambridge, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1539
Issued: August 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from a January 18, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 18, 2018, the date of OWCP’s last decision was
July 17, 2018. Since using July 18, 2018, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is July 17, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 18, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $4,662.29 for the period November 9, 2009 to
January 16, 2010; (2) whether OWCP properly determined that appellant was at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment; and
(3) whether OWCP properly directed recovery of the overpayment by deducting $100.00 every 28
days from appellant’s continuing compensation.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the prior Board decisions are incorporated herein by reference. The relevant facts
are as follows.
On September 1, 1993 appellant, then a 29-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging progressive deterioration of both her knee joints while in the
performance of her federal employment duties.5 On October 20, 1993 OWCP accepted the claim
for aggravation of bilateral knee degenerative joint disease and paid her wage-loss compensation
and medical benefits on the periodic compensation rolls commencing December 17, 1993.6
OWCP subsequently placed appellant on the daily rolls, effective May 28, 1997, and
subsequently on the periodic compensation rolls for partial disability compensation. In a letter
dated August 29, 1997, it notified her of her continuing compensation payments and her
responsibility to return to work if she no longer was totally disabled. To minimize the possibility
of an overpayment of compensation, appellant was instructed to notify OWCP immediately if and
when she returned to work. OWCP noted that her first payment would be for the period May 28
to August 16, 1997 in the net amount of $1,414.61.
Appellant was paid total disability compensation on the periodic compensation rolls,
effective June 10, 2007, and subsequently on the supplemental rolls.
In a disability/return-to-work notice dated January 21, 2010, the employing establishment
informed OWCP that appellant had returned to part-time, modified-duty work with restrictions on
November 9, 2009.
By letter dated January 25, 2010, OWCP notified the employing establishment that
although appellant had returned to part-time, modified-duty work on November 9, 2009, she
received wage-loss compensation for total disability through January 16, 2010. It notified the
4

Docket No. 02-2373 (issued June 27, 2003); Docket No. 06-2184 (issued April 10, 2007).

5

Appellant has a prior traumatic injury claim in which OWCP accepted that she sustained a contusion of the right
knee and fracture of the distal end of the right femur on April 23, 1992 due to a motor vehicle accident while in the
performance of duty. OWCP assigned that claim File No. xxxxxx133. It administratively combined File No.
xxxxx133 and File No. xxxxxx292, with File No. xxxxxx292 serving as the master file.
6
Starting in May 1995 appellant performed part-time, limited-duty work at the employing establishment, for 20
hours a week, and continued to receive wage-loss compensation on the supplemental rolls.

2

employing establishment that, in order to calculate the overpayment amount, it needed leave
analysis records for the period November 9, 2009 to January 16, 2010 and premium deductions
for health benefits and life insurance.
On January 29, 2010 the employing establishment again informed OWCP by a documented
telephone call that on November 9, 2009 appellant had returned to part-time, modified-duty work,
six hours a day, five days a week. On June 22, 2010 appellant contacted OWCP and reported that
she had returned to work as a router in November 2009 and she had notified OWCP of her return
to work. She acknowledged that she had received three compensation payments before her wageloss compensation was adjusted to reflect her return to work.
By letter dated June 25, 2010, OWCP requested that the employing establishment provide
information regarding appellant’s date-of-injury pay rate and current actual earnings.
In a telephone call on July 9, 2010, the employing establishment informed OWCP that
appellant’s actual earnings as of November 9, 2009 were $1,015.36 per week and that the current
annual pay rate for her date-of-injury, full-time job was $50,723.00 per year.
In a Memorandum to the Director from the Claims Examiner dated July 13, 2010, OWCP
identified and calculated an overpayment of compensation in the amount of $1,552.64 for the
period November 9, 2009 through January 16, 2010 as appellant continued to receive total
disability compensation after she had returned to part-time work on November 9, 2009.
Worksheets prepared on July 13, 2010 and computer printouts documented that for the period
November 9, 2009 through January 16, 2010 she received temporary total disability compensation
in the net amount of $5,989.03. These records also documented that appellant was only entitled
to receive the net amount of $1,282.50 for partial disability and the net amount of $3,153.89 for
total disability, totaling $4,436.39. This yielded an overpayment of compensation in the amount
of $1,552.64 for the period November 9, 2009 through January 16, 2010.
On July 22, 2010 OWCP issued an informal loss of wage-earning capacity determination
(LWEC), adjusting appellant’s compensation based on her actual earnings in a part-time, limitedduty position working 30 hours a week. It noted that she had been due wage-loss compensation
based on her actual earnings from November 9, 2009 through July 3, 2010, but that she was paid
compensation for total disability through January 16, 2010 even though she had already returned
to work. OWCP advised that it would compute whether any overpayment existed for this period
and, if so, then it would inform appellant by separate letter.
Also, by telephone on July 22, 2010, OWCP requested that appellant review its informal
LWEC determination letter and advise whether any errors had been made in its computation. It
informed her that it had estimated the amount of an overpayment based on the computed LWEC,
but that it wanted her to review its letter first and then it would finalize the overpayment and inform
her about its decision. No response was received from appellant.
On August 14, 2017 the employing establishment again informed OWCP that it noticed
that appellant was still paid on the periodic compensation rolls after she had returned to work on
November 9, 2009. It related that it could not see any repayments in the system. The employing
establishment requested that OWCP review appellant’s case record and notify her if an
overpayment had been created. On August 14, 2017 OWCP responded that the worksheets had

3

been completed, but for some reason it never reported the overpayment. It advised the employing
establishment that it would move forward with the overpayment.
In a letter dated September 13, 2017, OWCP advised appellant of its preliminary
determination that she had received a $4,662.29 overpayment of compensation for the period
November 9, 2009 to January 16, 2010 because she had been paid temporary total disability
compensation after her return to part-time, modified-duty work on November 9, 2009. It also
made a preliminary finding that she was at fault in the creation of the overpayment because she
was aware or should have been aware that it had incorrectly paid compensation. OWCP advised
appellant that she could submit evidence challenging the fact, amount, or finding of fault and
request waiver of recovery of the overpayment. Additionally, it informed her that within 30 days
she could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. OWCP requested that appellant complete the enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation.
A worksheet prepared on August 14, 2017 showed that from November 9, 2009 to
January 16, 2010 appellant received temporary total disability compensation in the net amount of
$5,944.79, when she was only entitled to the net amount of $1,282.50 for partial disability for this
period. This yielded an overpayment of compensation in the amount of $4,662.29 for the period
November 9, 2009 to January 16, 2010.
On October 17, 2017 appellant requested a telephone conference regarding the amount of
the overpayment and the finding of fault. She contended that any overpayment that occurred was
recouped by OWCP when it had suspended her compensation for 10 hours of work per week,
commencing January 16, 2010 and had not reinstated her compensation until her payment for wage
loss for the period July 4 to 31, 2010. Appellant further contended that on November 11, 2009 she
informed OWCP that she had returned to part-time work. She related that she did not realize there
was a problem until she received a compensation check on December 19, 2009 and again on
January 16, 2010. Shortly after receiving each payment appellant informed OWCP about the
compensation checks and was told that nothing could be done without the submission of an official
disability/return-to-work notice by the employing establishment. She alleged that she was also
instructed to cash the checks and that the situation would be straightened out after OWCP received
the official paperwork from the employing establishment. Appellant submitted an overpayment
recovery questionnaire (Form OWCP-20) and supporting financial documentation.
By decision dated January 18, 2018, OWCP finalized its determination that appellant
received an overpayment of compensation in the amount of $4,662.29 for the period November 9,
2009 to January 16, 2010 and that she was at fault in the creation of the overpayment as she had
accepted compensation payments she knew or reasonably should have known were incorrect.7 It
directed recovery of the overpayment by deducting $100.00 every 28 days from her continuing
compensation payments.

7
OWCP made several unsuccessful attempts to schedule the requested telephone conference. As a result, it made
a determination based on the evidence of record.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.8 Section 8129(a) of FECA provides, in pertinent part, that 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.9
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.10 Section 10.500 of OWCP’s regulations provides that compensation for wage loss due
to disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.11 A
claimant is not entitled to receive temporary total disability benefits and actual earnings for the
same time period.12 OWCP procedures provide that an overpayment of compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation for temporary
total disability.13
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision.14 These
procedures note that, if the claimant is determined to be at fault, a Form CA-2201 (preliminary
finding notice) must be released (along with a Form OWCP-20) within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of fault must be clearly stated. A Form CA-2201 informs the claimant of the right to
submit evidence and the right to a prerecoupment hearing on the issue of: (a) fact and amount of
overpayment; (b) fault; and (c) waiver. Along with the Form CA-2201, OWCP should provide a
clearly written statement explaining how the overpayment was created.

8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10

Id. at § 8116(a).

11

20 C.F.R. § 10.500(a).

12

See M.S., Docket No. 16-0289 (issued April 21, 2016); L.S., 59 ECAB 350, 352-53 (2008).

13

J.L., Docket No. 18-1266 (issued February 15, 2019); B.H., Docket No. 09-0292 (issued September 1, 2009);
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a)
(May 2004).
14
C.G., Docket No. 15-0891 (issued August 9, 2016); Federal (FECA) Procedure Manual, id. at Chapter
6.200.4(a)(1).

5

ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $4,662.29 for the period from November 9, 2009
to January 16, 2010.
As noted, OWCP’s procedures provide that an overpayment of compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation for temporary
total disability. On January 25, 2010 it identified an overpayment of compensation as appellant
had returned to part-time, modified-duty work on November 9, 2009, but continued to receive
temporary total disability compensation for the period November 9, 2009 through
January 16, 2010. It was not until September 13, 2017, however, that OWCP issued a preliminary
determination, finding an overpayment in the amount of $4,662.29 had been created for the period
November 9, 2009 to January 16, 2010 because appellant continued to receive compensation for
total disability following her return to part-time, modified-duty work. By decision dated
January 18, 2018, OWCP finalized the preliminary overpayment determination finding that
appellant was at fault in the receipt of an overpayment of compensation in the amount of $4,662.29
and, thus, she was not entitled to waiver of recovery of the overpayment. It required recovery of
the overpayment by deducting $100.00 every 28 days from her continuing compensation.
The Board finds that OWCP failed to follow its procedures in issuing the January 18, 2018
overpayment decision. As noted, OWCP procedures provide that a Form CA-2201 (preliminary
finding notice) must be released along with an OWCP-20 within 30 days of the date the
overpayment is identified.15 In this case, OWCP first identified the overpayment of compensation
on January 25, 2010, but it did not, however, issue a preliminary notice regarding the overpayment
until September 13, 2017, more than seven years later.
Timely issuance of the preliminary overpayment notice is particularly important given the
disparity between OWCP’s initial finding of a $1,552.64 overpayment for the period November 9,
2009 through January 16, 2010 and its subsequent finding of a greater overpayment in the amount
of $4,662.29 overpayment for the same period. Moreover, it is particularly noteworthy that OWCP
acknowledged in its own statements to the employing establishment on August 14, 2017 that it
had previously computed the overpayment, but never reported it.
The Board thus finds that OWCP failed to follow its established procedures in determining
that appellant received an overpayment of compensation in the amount of $4,662.29 during the
period November 9, 2009 through January 16, 2010.16

15

Id.

16
Based on the Board’s disposition of whether an overpayment of compensation was created, the issues of fault
and recovery are moot. See C.C., Docket No. 16-1190 (issued May 12, 2017).

6

CONCLUSION
The Board finds that OWCP failed to follow its established procedures in determining that
appellant received an overpayment of compensation in the amount of $4,662.29 for the period
November 9, 2009 to January 16, 2010.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 2, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-638
Issued: September 29, 2009

Case Submitted on the Record

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

JURISDICTION
On January 6, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated December 8, 2008
finding that he had not established an injury on January 3, 2008 causally related to his federal
employment. 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 met his burden of proof to establish that he sustained
an injury on January 3, 2008 as alleged.
FACTUAL HISTORY
On January 4, 2008 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim alleging that on January 3, 2008 he developed numbness in his arm and hand in the
performance of duty. The employing establishment disputed his claim on January 14, 2008,
alleging that he had a previous diagnosis of carpal tunnel syndrome.

In a letter dated January 28, 2008, the Office requested additional factual and medical
information from appellant regarding his claim. It allowed 30 days for a response. Appellant
submitted a form report dated January 9, 2008 diagnosing a herniated disc. Dr. Michael Shapiro,
a Board-certified orthopedic surgeon, completed a form report on February 22, 2008 and
diagnosed cervicalgia, cervical herniated disc and cervical radiculitis. He found that appellant
was totally disabled. A magnetic resonance imaging (MRI) scan dated February 26, 2008 found
a herniated disc at C4-5 with degenerative disc disease.
By decision dated March 6, 2008, the Office denied appellant’s claim on the grounds that
there was not an adequate description of the employment incident.
Appellant requested an oral hearing on March 17, 2008 and submitted an authorization
for examination and treatment, Form CA-16, dated January 7, 2008. It described his history of
injury as “sorting mail, started feeling tingling in hand/arm/shoulder.” Dr. Shapiro indicated
with a checkmark “yes” that appellant’s condition was caused or aggravated by his employment
activity. He completed a treatment note on February 27, 2008 and listed appellant’s chief
symptom as neck pain. Dr. Shapiro diagnosed herniated cervical disc based on an MRI scan as
well as cervicalgia and radiculopathy. Appellant submitted a form report dated March 5, 2008
from Dr. Shapiro which diagnosed cervical herniated disc, cervicalgia, radiculopathy.
Dr. Shapiro noted his history of developing tingling in his right hand while putting up mail. He
indicated with a checkmark “yes” that appellant’s condition was caused or aggravated by an
employment activity. On March 17, 2008 Dr. Shapiro diagnosed lumbago, herniated disc,
radiculopathy and cervicalgia. He recommended physical therapy. Dr. Shapiro completed an
Office note on the same date, repeated his diagnoses and stated that appellant had experienced
symptoms for two months. He advised that appellant reported that his condition started while he
was at work and that he had no previous neck problems.
Appellant testified at the July 15, 2008 oral hearing. He described his job duties
including pulling magazines, carrying buckets, casing letters and lifting and using a pushcart.
Appellant stated that he was working and developed a tingling in his hands. The next day, he
carried magazines to his desk and developed tingling in his hands and arm. The Office hearing
representative allowed appellant 30 days to submit additional evidence.
In a July 23, 2008 report, Dr. Shapiro diagnosed cervical radiculopathy, cervicalgia and
herniated cervical disc. He stated, “[Appellant] injured his neck while at work. He was
preparing mail and had tingling in the neck and down the arm.” Dr. Shapiro advised that this
was a single traumatic episode rather than a wear and tear injury. He further stated, “We
discussed the nature of [appellant’s] job as a letter carrier and what it entails on a daily basis.”
By decision dated December 8, 2008, the hearing representative found that appellant had
submitted sufficient evidence to establish a traumatic incident on January 3, 2008. However,
appellant submitted insufficient medical opinion evidence to establish a causal relationship
between his diagnosed cervical condition and his employment activities on January 3, 2008. The
Office’s March 6, 2008 decision was affirmed. On appeal, appellant disagreed with the Office’s
evaluation of the medical evidence.

2

LEGAL PRECEDENT
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.1 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.2 Such opinion of the physician must be
one of reasonable medical certainty and must be supported by medical reasoning explaining the
nature of the relationship between the diagnosed condition and the employment.3
ANALYSIS
Appellant established that he experienced a traumatic incident on January 3, 2008. He
submitted medical evidence diagnosing a herniated cervical disc at C4-5, cervicalgia and cervical
radiculitis. The Board finds that appellant has not submitted medical opinion evidence
suffiecient to establish the causal relationship between his employment incident and his cervical
condition.
Dr. Shapiro, a Board-certified orthopedic surgeon, diagnosed cervicalgia, cervical
herniated disc and cervical radiculitis. The medical evidence contains histories of injury on form
reports including “sorting mail, started feeling tingling in hand/arm/shoulder” and “developing
tingling in [appellant’s] right hand while putting up mail.” Dr. Shapiro initially indicated with a
checkmark “yes” that appellant’s condition was caused or aggravated by his employment
activity. The Board has held that an opinion on causal relationship which consists only of a
physician checking “yes” to a medical form report question on whether appellant’s condition is
related to the history given is of diminished probative value. Without any explanation or
rationale for the conclusion reached, such a report is insufficient to establish causal relationship.4
There is no medical reasoning on the form reports appellant submitted explaining how or why
sorting and putting up mail on January 3, 2008 would cause or contribute to the diagnosed
conditions. These reports are not sufficient to meet appellant’s burden of proof.5
1

20 C.F.R. § 10.5(ee).

2

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

3

Leslie C. Moore, 52 ECAB 132, 134 (2000).

4

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

5

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989).

3

Dr. Shapiro completed a report dated July 23, 2008 diagnosing cervical radiculopathy,
cervicalgia and herniated cervical disc. He stated, “[Appellant] injured his neck while at work.
He was preparing mail and had tingling in the neck and down the arm.”
Dr. Shapiro stated that this was a single traumatic episode rather than a wear and tear injury. He
further stated, “We discussed the nature of [appellant’s] job as a letter carrier and what it entails
on a daily basis.” This report is also insufficient to meet appellant’s burden of proof as
Dr. Shapiro failed to specifically address a history of the January 3, 2008 incident. He did not
provide a detailed description of the employment duties and failed to offer any medical
explanation describing how this activity would result in appellant’s cervical condition. Medical
rationale is necessary as the MRI scan demonstrated degenerative conditions in appellant’s spine.
Dr. Shapiro did not address how the employment activity on January 3, 2008 caused or
contributed to the degenerative disc disease of the cervical region.
CONCLUSION
The Board finds that appellant has not submitted the necessary rationalized medical
opinion evidence to establish a causal relationship between his herniated cervical disc and his
employment activities of January 3, 2008.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, BAXTER ANNEX,
Baxter, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-663
Issued: September 25, 2012

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 February 1, 2012 appellant filed a timely appeal of the December 8, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating her wage-loss
compensation and entitlement to a schedule award. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
entitlement to a schedule award effective March 13, 2011 for refusing an offer of suitable work
pursuant to 5 U.S.C. § 8106(c).
On appeal, appellant contends that she refused an offered position based on the medical
opinion of her attending physicians and her inability to perform the duties of the offered job as
they exceeded her physical restrictions.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 10, 2008 appellant then, a 41-year-old rural carrier associate, filed an
occupational disease claim alleging that on February 11, 2007 she first realized that her left
carpal tunnel syndrome and left shoulder conditions were caused by using her left arm to
perform her limited-duty work. She used the left arm due to a prior accepted right arm
condition.2 By letter dated May 6, 2008, OWCP accepted appellant’s claim for left carpal tunnel
and left shoulder impingement. Appellant stopped work on February 29, 2008 and OWCP paid
her appropriate temporary total disability compensation. She returned to work in a modified
rural carrier associate position on September 9, 2008.3 As of October 20, 2008 appellant worked
up to four hours a day, two days a week.
In an October 23, 2008 medical report, Dr. Paul D. Thompson, an attending Boardcertified orthopedic surgeon, advised that appellant had left upper extremity RSD and left leg
pain. He continued her current work restrictions which included working two four-hour days a
week.
By letter dated November 7, 2008, the employing establishment requested that OWCP
refer appellant’s case for a second opinion evaluation to determine whether she could work
additional hours.
In a January 20, 2009 report, Dr. Richard C. Strand, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, advised that appellant had chronic right upper extremity
regional pain syndrome, left shoulder pain without significant objective findings to correlate with
her subjective complaints, mild left carpal tunnel syndrome without objective findings and mild
left shoulder impingement syndrome by medical records and history that were not confirmed on
examination. He opined that she had no residuals of her employment-related left shoulder
impingement and left carpal tunnel syndrome. No further medical treatment was necessary for
the left upper extremity. Dr. Strand advised that, although appellant could not return to her dateof-injury rural carrier position due to restrictions for her right upper extremity, she could work on
a full-time basis with no restrictions for her left upper extremity.
On February 23, 2009 OWCP determined that there was a conflict in medical opinion
between Dr. Thompson and Dr. Strand regarding the nature of appellant’s work-related
conditions and her ability to perform full-duty work with no restrictions. By letter dated
March 2, 2009, it referred her, together with the case record and statement of accepted facts, to
Dr. Stephen E. Barron, a Board-certified orthopedic surgeon, for an impartial medical
examination.

2

The record reveals that OWCP accepted appellant’s prior claims filed under OWCP File Nos. xxxxxx203 and
xxxxxx927 for right wrist sprain, right upper extremity reflex sympathetic dystrophy (RSD), left shoulder sprain and
adhesive capsulitis and bilateral wrist tenosynovitis.
3

Although appellant returned to work in the modified rural carrier associate position on September 9, 2008, she
refused to sign the September 3, 2008 job offer for this position. In this position, she initially worked eight hours a
day, one day a week, but on October 9, 2008 she increased her workday to two days a week.

2

In a March 30, 2009 report, Dr. Barron reviewed a history of the accepted employment
injuries and appellant’s medical treatment, family and educational background. He described a
full examination which included 160 degrees each of abduction and forward flexion, 60 degrees
of external rotation and 45 degrees of internal rotation of the left shoulder. Appellant had
diminished grip strength in her right hand. She had diffuse loss of sensation and diffuse
weakness in her entire right upper extremity. Reflexes at the biceps, triceps and brachioradialis
were +2/+2 and equal bilaterally. There was no hair loss, erythema or significant swelling of the
right upper extremity. There was no temperature difference in either right or left upper
extremity. Appellant had full range of motion of her left hand. She had a positive Tinel’s sign
and Phalen’s test on the left. Appellant had positive impingement signs and tenderness of her
left shoulder. There was no evidence of spasm. Dr. Barron diagnosed left shoulder impingement
syndrome based on an electromyogram and x-ray results. He also diagnosed left carpal tunnel
syndrome based on the positive Tinel’s sign and Phalen’s test results. Dr. Barron opined that
appellant continued to have residuals of the accepted work injuries which included left shoulder
pain and numbness from the accepted left shoulder impingement syndrome and continuing
numbness in the left hand. He further opined that she had reached maximum medical
improvement. Dr. Barron recommended against surgery due to appellant’s prior right shoulder
RSD. He stated that performing surgery on the left shoulder or hand could cause RSD in the left
upper extremity. Dr. Barron concluded that appellant could not work without restrictions. He
recommended that she work at a sedentary level based on the results of a prior functional
capacity evaluation (FCE).4 Dr. Barron concluded that there was no need to restrict appellant’s
work hours.
In an October 27, 2009 report, Dr. Thompson stated that he had been treating appellant
for a prolonged period for impingement syndrome of the shoulders, carpal tunnel syndrome and
complex regional pain syndrome (CRPS) or RSD. He advised that she was unable to return to
work because work exacerbated her symptoms. Dr. Thompson ordered a repeat FCE, which he
believed would demonstrate further decline in appellant’s work capacity. In a December 17,
2009 report, he advised that she was permanently unable to return to work.5
On April 30, 2010 the employing establishment offered appellant a part-time modified
rural carrier associate position, three to four hours a day, four days a week based on Dr. Barron’s
March 23, 2010 opinion. The physical restrictions included occasional lifting up to 10 pounds
(up to 33 percent) from the floor to waist, up to 5 pounds from the waist to shoulder, sitting,
standing, walking, climbing, pushing and pulling up to 40 pounds, bending, stooping and
reaching. The position did not require lifting above the shoulder.
4

An August 4, 2008 FCE found that appellant could work in a sedentary position, four hours a day (shift). She
could occasionally lift up to 10 pounds from the floor to knuckle using a proper lifting technique waist and up to 5
pounds from the knuckle to shoulder. Appellant could also occasionally push up to 40 pounds, pull up to 30 pounds
and hand carry up to 8 pounds for 100 feet. She was unable to lift shoulder to overhead without significant
subjective complaints of pain. Appellant was unable to sustain any activities long enough to be categorized as
frequent use.
5

A December 7, 2009 report provided the results of FCE tests that appellant underwent on December 4
and 6, 2009. She could lift up to 5 pounds from floor to waist and 5 pounds from waist to overhead, unilaterally
carry up to 10 pounds on the left, push up to 15 pounds and pull up to 6 pounds. Appellant had no functional usage
of the right upper extremity, limited left upper extremity usage, chronic pain and poor thoracic mobilization/rotation.

3

By letter dated July 8, 2010, OWCP requested that Dr. Barron submit a supplemental
report describing appellant’s specific physical limitations and ability to work at a sedentary level.
He was also asked to provide an opinion as to whether she could perform the duties of the
April 30, 2010 job offer.
In a July 20, 2010 report, Dr. Barron advised that appellant was capable of working at a
sedentary level based on the August 4, 2008 FCE. He restricted her to lifting no more than 10
pounds. Appellant could not engage in repetitive use of her left wrist and shoulder and lift above
the left shoulder. Dr. Barron reviewed the April 30, 2010 job offer and concluded that she was
capable of performing the described work duties.
By letter dated October 29, 2010, OWCP advised appellant that the offered modifiedduty position was available and found suitable to her physical limitations. Appellant had 30 days
to accept the position or provide an explanation for her refusal to accept it. OWCP informed her
that, if she failed to accept the position or provide a reasonable cause for her refusal, her
compensation benefits would be terminated. Appellant did not respond.
By letter dated November 29, 2010, OWCP advised appellant that she had not provided a
valid reason for refusing to accept the offered position. Appellant was given an additional 15
days to accept. She did not respond.
In a March 16, 2011 decision, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award effective March 13, 2011 on the grounds that she refused an
offer of suitable work. It reissued the March 16, 2011 decision on March 17, 2011.
On April 10, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
In a December 8, 2011 decision, an OWCP hearing representative affirmed the March 17,
2011 termination decision, finding that the evidence of record was sufficient to establish that
appellant refused an offer of suitable work.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, a partially disabled employee who
refuses or neglects to work after suitable work is offered to, procured by, or secured for him is
not entitled to compensation.6 It is OWCP’s burden to terminate compensation under section
8106(c) for refusing to accept suitable work or neglecting to perform suitable work.7 The
implementing regulations provide that an employee who refuses or neglects to work after
suitable work has been offered or secured for the employee has the burden of showing that such
refusal or failure to work was reasonable or justified and shall be provided with the opportunity
to make such a showing before entitlement to compensation is terminated.8
6

5 U.S.C. § 8106(c).

7

Joyce M. Doll, 53 ECAB 790 (2002).

8

20 C.F.R. § 10.517(a).

4

To support termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.9 In
determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.10 OWCP’s procedures state that acceptable reasons for refusing an offered
position include withdrawal of the offer or medical evidence of inability to do the work or travel
to the job.11 Section 8106(c) will be narrowly construed as it serves as a penalty provision which
may bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer
of employment.12 It is well established under this section of FECA, OWCP must consider both
preexisting and subsequently acquired conditions in the evaluation of the suitability of an offered
position.13
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.14 When 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 on a proper factual background, must be
given special weight.15
ANALYSIS
OWCP accepted that appellant sustained left carpal tunnel and left shoulder impingement
while working as a rural carrier associate. Appellant stopped work on February 29, 2008 and
returned to work in a modified rural carrier position on September 9, 2008 up to four hours a
day, two days a week. OWCP terminated her compensation effective March 13, 2011 for
refusing the employing establishment’s April 30, 2010 offer of suitable work.
The medical evidence of record establishes that appellant was capable of performing the
part-time modified rural carrier associate position offered by the employing establishment and
determined to be suitable by OWCP. The position was sedentary in nature and required
occasional lifting up to 10 pounds (up to 33 percent) from the floor to waist and up to 5 pounds

9

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
10

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
12

Gloria G. Godfrey, 52 ECAB 486 (2001).

13

Richard P. Cortes, 56 ECAB 200 (2004).

14

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

15

Manuel Gill, 52 ECAB 282 (2001).

5

from the waist to shoulder, sitting, standing, walking, climbing, pushing and pulling up to 40
pounds, bending, stooping and reaching. It did not require lifting above the shoulder.
In determining that appellant was physically capable of performing the modified-duty
rural carrier associate position, OWCP properly relied on the opinion of Dr. Barron, a Boardcertified orthopedic surgeon, who served as an impartial medical examiner. It found that a
conflict in the medical opinion evidence arose between Dr. Thompson, an attending physician,
and Dr. Strand, a second opinion physician, with respect to appellant’s continuing employmentrelated residuals and capacity for work. Dr. Thompson opined that she had left upper and lower
extremity conditions and could continue working a four-hour shift, two days a week while
Dr. Strand found that she had no residuals of the accepted employment-related conditions and
could work full time with no restrictions. To resolve the conflict, OWCP properly referred
appellant to Dr. Barron for an impartial medical examination.16
In a March 30, 2009 report, Dr. Barron reviewed the history of injury and medical
treatment. He reported essentially normal findings with the exception of diminished range of
motion of the left shoulder and grip strength in the right hand, diffuse lose of sensation and
weakness in the entire right upper extremity, positive Tinel’s sign and Phalen’s test results on the
left and positive impingement signs and tenderness of the left shoulder. Dr. Barron diagnosed
impingement syndrome of the left shoulder and left carpal tunnel syndrome. He found that
appellant had continued residuals of the accepted work injuries which included left shoulder pain
and numbness from the employment-related impingement syndrome and numbness in the left
hand. Dr. Barron opined that she could not work without restrictions and recommended a
sedentary position based on the results of the August 4, 2008 FCE. He further opined that there
was no need to restrict appellant’s work hours. In a supplemental report dated July 20, 2010,
Dr. Barron found that she could perform the duties of the April 30, 2010 job offer for a part-time
modified rural carrier position based on his restrictions and the August 4, 2008 FCE findings.
He restricted appellant to lifting no more than 10 pounds and from engaging in repetitive use of
the left wrist and shoulder and lifting above the left shoulder. The Board finds that Dr. Barron’s
restrictions are consistent with the restrictions set forth in the August 4, 2008 and December 4
and 6, 2009 FCE test results and April 30, 2010 job offer. Although Dr. Barron found that
appellant had residuals of the accepted conditions, he concluded that she was capable of
performing the duties of the offered position.
The Board finds that Dr. Barron provided a complete and rationalized opinion, based on
an accurate factual and medical background. Dr. Barron’s opinion that appellant could return to
modified-duty work is accorded special weight as an impartial medical examiner with respect to
appellant’s work restrictions.17
Appellant did not submit sufficient medical evidence to establish that she could not return
to modified duty at the time it was offered in April 2010. She submitted Dr. Thompson’s
October 27 and December 17, 2009 reports, which found that she was permanently disabled from
returning to work because work exacerbated her symptoms related to bilateral impingement
16

See R.H., 59 ECAB 382 (2008).

17

See L.W., 59 ECAB 471 (2008).

6

syndrome, carpal tunnel syndrome and CRPS and RSD. However, none of these reports
provided a rationalized medical opinion on how appellant continued to be totally disabled due to
her accepted employment injuries. The Board has held that a medical opinion not fortified by
rationale is of diminished probative value.18 As noted, Dr. Thompson was on one part of the
conflict in the medical opinion for which appellant was referred to Dr. Barron. He did not
provide any narrative opinion explaining how appellant’s symptoms disabled her from
performing the duties of the offered position. The Board finds, therefore, that Dr. Thompson’s
reports are insufficient to overcome the special weight accorded to the well-rationalized opinion
of Dr. Barron, the impartial medical specialist or to create a new conflict.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on October 29, 2010 that it found the modified-duty job offer to be suitable
and gave her an opportunity to provide reasons for refusing the position within 30 days. It
advised her in a November 29, 2010 letter that she had 15 additional days to accept the offered
position. The Board finds that OWCP followed established procedures prior to the termination
of compensation pursuant to section 8106(c) of FECA.
The Board finds that the position offered was medically and vocationally suitable and
OWCP complied with the procedural requirements of section 8106(c) of FECA. OWCP met its
burden of proof to terminate appellant’s wage-loss compensation and entitlement to a schedule
award effective March 13, 2011.19
On appeal, appellant contended that she refused the offered position based on the medical
opinion of her attending physicians and because the offered job was not medically suitable. As
stated, Dr. Thompson’s reports were found insufficient to establish her incapacity to perform the
duties of the offered position as he did not provide any rationalized medical opinion explaining
how her continuing symptoms disabled her from performing the offered job. Moreover, the
special weight of the medical evidence, as represented by Dr. Barron’s impartial opinion
establishes that appellant refused an offer of suitable work. Therefore, the Board finds that
OWCP properly terminated her wage-loss compensation benefits and entitlement to a schedule
award on the grounds that she refused an offer of suitable work.
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 properly terminated appellant’s wage-loss compensation and
entitlement to a schedule award effective March 13, 2011 for refusing an offer of suitable work
pursuant to 5 U.S.C. § 8106(c).

18

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

19

Joyce M. Doll, supra note 7.

7

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Portsmouth, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-190
Issued: April 18, 2008

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 October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 20, 2006 and September 20, 2007 merit decisions finding
that his compensation claim was untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for several
employment-related conditions on the grounds that it was untimely filed.
FACTUAL HISTORY
On November 18, 2006 appellant, then an 83-year-old retired machinist, filed an
occupational disease claim alleging that he sustained several conditions due to his federal
employment. Regarding the nature of these conditions, he stated: “Sigmoid resection, gall
bladder, serious hand exposure, heart problems….” Appellant indicated that he did not have any
problems for 22 years but then had a series of problems after his “exposure.” He first became

aware of his conditions on November 7, 1968 and first aware of their relationship to his
employment on November 7, 1968.1 Appellant retired from the employing establishment on
disability retirement effective July 24, 1975.
In several statements and notations made on medical and administrative documents,
appellant argued that he sustained a series of ailments beginning in late 1968 due to his exposure
to radiation prior to late 1968 while working in the Portsmouth Naval Shipyard. He claimed that
this exposure caused him to sustain dermatitis of his upper extremities beginning in late 1968
and caused him to develop conditions which led him to have a sigmoid resection in 1971, a
partial gall bladder removal in 1972, quadruple heart bypass surgery in 1977 and triple heart
bypass surgery in 1977.
Appellant submitted documents detailing his medical treatment since 1968. A number of
these pertain to his skin problems and his heart surgeries in 1977 and 1990.2 In a May 3, 2006
statement, an employing establishment official stated that appellant was exposed to ionizing
radiation while working at the Portsmouth Naval Shipyard between July 1967 and August 1968.3
The official observed that the radiation dose appellant received during that period was only three
percent of the current federal limit for workers.
On May 11, 2006 the Office requested that appellant submit additional factual and
medical evidence in support of his claim. Appellant submitted additional medical documents as
well as statements regarding the cause of his claimed conditions. He asserted that he did not
have any medical problems for 22 years prior to his exposure to radiation even though he had
been exposed to oil and other contaminates. Appellant claimed, however, that his health
problems started in late 1968 after he had been exposed to radiation. He indicated that the
physicians who treated him at the Portsmouth Naval Shipyard “are and were aware of my
nuclear exposure.”
In a December 20, 2006 decision, the Office denied appellant’s claim for several
employment-related conditions on the grounds that it was untimely filed. The Office found that
appellant knew or should have known about the relationship between his radiation exposure and
his claimed conditions around the time he developed each condition.
Appellant requested reconsideration of his claim and argued that he did not file his claim
sooner because he was incompetent for the entire period between November 11, 1968 and
February 1, 2006. He indicated that he was incompetent due to his upper extremity skin
condition between 1969 and 1972, the effects of his 1971 sigmoid resection surgery between
1971 and 1976, the effects of his 1972 gall bladder surgery between 1972 and 1976, the effects
of his 1977 heart bypass surgery between 1977 and 1999 and the effects of his 1999 heart bypass

1

The record contains a November 7, 1968 medical record notation indicating that appellant complained in that
date of having a left palm rash since the prior week.
2

None of the documents referred to appellant’s sigmoid resection or gall bladder removal.

3

The official indicated that appellant worked at the Portsmouth Naval Shipyard between 1950 and 1975.

2

surgery between 1999 and 2002,4 and the effects of multiple minor heart procedures between
2000 and 2006.5 Appellant asserted that he was unable to care for himself for much of this
period.
In a September 20, 2007 decision, the Office affirmed the December 20, 2006 decision.
The Office found that appellant did not show that he was incompetent within the meaning of the
Federal Employees’ Compensation Act for any period.
LEGAL PRECEDENT
A claimant seeking compensation under the Act6 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,7
including that he is an “employee” within the meaning of the Act8 and that he filed his claim
within the applicable time limitation.9
The Act requires in cases of injury prior to September 7, 1974 that a claim for
compensation be filed within one year of the date claimant was aware or reasonably should have
been aware that the condition may have been caused by the employment factors. The one-year
requirement may be waived if the claim is filed within five years and (1) it is found that such
failure was due to circumstances beyond the control of the person claiming benefits; or (2) that
such person has shown sufficient cause or reason in explanation thereof and material prejudice to
the interest of the United States has not resulted from such failure.10 The test for whether
sufficient cause or reason was shown to justify waiver of the one-year time limitation is whether
a claimant prosecuted the claim with that degree of diligence which an ordinarily prudent person
would have exercised in protecting her right under the same or similar circumstances.11
Section 8122(b) provides that, in a case of latent disability, the time for filing a claim
does not begin to run until the employee has a compensable disability and is aware or by exercise
of reasonable diligence should have been aware, of the causal relationship of the compensable
disability to his employment. In such a case, the time for giving notice of injury begins to run
4

Appellant indicated that he attempted to work on weekends at a farm museum during this period but was unable
to continue to do so.
5

Appellant indicated that after he had a pacemaker surgically installed in 2002 he “could finally resume to some
normal activities.
6

5 U.S.C. §§ 8101-8193.

7

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

8

Kenneth W. Grant, 39 ECAB 208 (1987); James E. Lynch, 32 ECAB 216 (1980); Emiliana de Guzman (Mother of
Elpedio Mercado), 4 ECAB 357 (1951); see 5 U.S.C. § 8101(1).
9

Paul S. Devlin, 39 ECAB 715 (1988); Emmet L. Pickens, 33 ECAB 1807 (1982); Kathryn A. O’Donnell, 7 ECAB
227 (1954).
10

Edward Lewis Maslowski, 42 ECAB 839, 845 (1991); Dorothy L. Sidwell, 36 ECAB 699, 706 (1985).

11

Maxine Leonard, 39 ECAB 1180, 1184-85 (1988).

3

when the employee is aware or by the exercise of reasonable diligence should have been aware,
that his condition is causally related to his employment, whether or not there is a compensable
disability.12 The Board has found that the statute of limitations begins to run on the date that
appellant actually knows of the possible relationship between the employee’s condition and his
employment or reasonably should have known of the possible relationship.13
In a case involving a claim for an occupational illness, the time limitation does not begin
to run until the claimant is aware or reasonably should have been aware, of the causal
relationship between her employment and the compensable disability.14 In situations where an
employee continues to be exposed to injurious working conditions after such awareness, the time
limitation begins to run on the last date of this exposure.15
In addition, for injuries and death occurring between December 7, 1940 and September 6,
1974, Office procedure indicates that written notice of injury should be given within 48 hours as
specified in section 8119 of the Act, but that this requirement would be automatically waived if
the employee filed written notice within one year after the injury or if the immediate supervisor
had actual knowledge of the injury within 48 hours after the occurrence of the injury.16
However, knowledge merely of an employee’s illness is not sufficient; it must be shown that the
circumstances were such as to put the supervisor on notice that the alleged injury was actually
related to the employment or that the employee attributed it thereto.17
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death.18 Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or

12

5 U.S.C. § 8122(b).

13

William A. West, 36 ECAB 525, 528-29 (1985).

14

William L. Gillard, 33 ECAB 265, 268 (1981).

15

Id.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3b(1) (March 1993).

17

See id. at Chapter 2.801.3a(3)(b).

18

5 U.S.C. § 8122(a).

4

“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”19
Section 8122(d)(2) provides that the time limitations of sections 8122(a) and 8122(b) do
not “run against an incompetent individual while he is incompetent and has no duly appointed
legal representative.”20 The Board has held that it is the claimant’s burden to show that he is
incompetent for a given period by submitting medical evidence establishing that his condition
was such that he was not capable of filling out a form or of otherwise furnishing the relatively
simple information necessary for filing a claim and satisfying the limitation requirements.21
Time limitations will also toll due to “exceptional circumstances” as provided by section
8122(d)(3) of the Act. For instance, an “exceptional circumstance” recognized by the Secretary
of Labor is where an employee is a prisoner of war.22
ANALYSIS
On November 18, 2006 appellant filed an occupational disease claim alleging that he
sustained several medical conditions due to his work. He claimed that his federal radiation
exposure caused him to sustain dermatitis of his upper extremities beginning in late 1968 and to
develop conditions which led him to have a sigmoid resection in 1971, a partial gall bladder
removal in 1972, quadruple heart bypass surgery in 1977 and triple heart bypass surgery in 1990.
In December 20, 2006 and September 20, 2007 decisions, the Office denied appellant’s claim for
these employment-related conditions on the grounds that it was untimely filed.
The Board notes that the timeliness standards for evaluating injuries alleged to have
developed prior to September 7, 1974 is applicable to appellant’s claim that radiation exposure
prior to late 1968 caused him to sustain dermatitis of his upper extremities beginning in late 1968
and caused him to develop other medical conditions necessitating surgery. The Board will apply
the timeliness standards for evaluating injuries alleged to have developed after September 7,
1974 to evaluate his claims that such radiation exposure caused him to develop conditions which
led him to have heart surgeries in 1977 and 1990.
The Board finds that the evidence establishes that appellant was aware or by the exercise
of reasonable diligence should have been aware, of the causal relationship between his
employment and the compensable disability as early as November 11, 1968. The evidence of
record establishes that appellant was aware or by the exercise of reasonable diligence should
19

Section 8119 provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly
stamped and addressed; be in writing; state the name and address of the employee; state the year, month, day and
hour when and the particular locality where the injury or death occurred; state the cause and nature of the injury or
in the case of death, the employment factors believed to be the cause; and be signed by and contain the address of
the individual giving the notice.
20

5 U.S.C. § 8122(d)(2).

21

Paul S. Devlin, 39 ECAB 715, 726 (1988).

22

See 5 U.S.C. § 8122(d)(3).

5

have been aware, as early as November 11, 1968, that his first claimed injury was due to the
alleged employment factors, i.e., exposure to radiation at work prior to late 1968.23
Appellant became aware of the first of his claimed conditions and its relationship to his
employment on November 7, 1968. He repeatedly asserted that he did not have any medical
problems for 22 years prior to his exposure to radiation even though he had been exposed to oil
and other contaminates. Appellant claimed, however, that his health problems started in late
1968 after he had been exposed to radiation. The advancement of this argument combined with
his statement regarding when he first realized his medical condition was related to radiation
exposure shows that appellant was aware beginning in November 1968 of the possible
relationship of his medical problems to work conditions. Therefore, appellant should have been
aware of the possible employment cause for his several claimed medical conditions around the
time each claimed condition manifested itself. He should have been aware of the possible
employment cause of his claimed skin condition in late 1968, his claimed intestinal condition in
1971, his claimed gall bladder condition in 1972, his claimed 1977 heart condition in 1977 and
his claimed 1990 heart condition in 1990.
Appellant did not file any claim for these conditions until November 2006. Therefore,
with respect to his claims that radiation exposure caused him to sustain dermatitis of his upper
extremities beginning in late 1968 and caused him to develop conditions which led him to have a
sigmoid resection in 1971 and a partial gall bladder removal in 1972, he did not file his claim
within one year of the time he became aware of a possible employment-related cause for each
condition.24 Furthermore, appellant is not entitled to waiver of the one-year filing requirement
because his claim was not filed within five years of the claimed injuries; nor has he met the other
requirements, as delineated above, for such waiver.25 The five-year time limitation is a
maximum, mandatory period which neither the Office nor the Board has authority to waive.26
Appellant has not made any claim that he has provided timely written notice of injury or that his
immediate superior or supervisor had actual timely knowledge of the claimed injuries and their
possible relationship to his employment, nor does the record support a finding that he has
satisfied either of these conditions.27
With respect to appellant’s claims that radiation exposure caused him to develop
conditions which led him to have heart surgeries in 1977 and 1990, he did not file his claim
within the three-year period of limitation for these two conditions. As explained above, he
should have been aware of the possible employment cause of these conditions in 1977 and 1990,
respectively, but he did not file his claim until November 2006.28 Appellant’s claim would still
be regarded as timely under section 8122(a)(1) of the Act if his immediate superior had actual
23

The record reveals that appellant was exposed to radiation at work only between July 1967 and August 1968.

24

See supra note 10 and accompanying text.

25

See supra notes 10 and 11 and accompanying text.

26

Gary W. Hudiburgh, Jr., 37 ECAB 423, 425 (1986).

27

See supra note 17 and accompanying text.

28

See supra notes 18 and 19 and accompanying text.

6

knowledge of the injuries within 30 days or under section 8122(a)(2) if written notice of the
injuries was given to his immediate superior within 30 days as specified in section 8119. He has
not made any claim that he has satisfied either of these provisions, nor does the record support a
finding that he has satisfied either of them.29
Appellant has contended that the time limitations of sections 8122(a) and 8122(b) did not
run against him due to the fact that he was incompetent. He argued that he did not file his claim
sooner because he was incompetent for the entire period between November 11, 1968 and
February 1, 2006. Appellant alleged that he was incompetent due to his upper extremity skin
condition between 1969 and 1972, the effects of his 1971 sigmoid resection surgery between
1971 and 1976, the effects of his 1972 gall bladder surgery between 1972 and 1976, the effects
of his 1977 heart bypass surgery between 1977 and 1999 and the effects of his 1999 heart bypass
surgery between 1999 and 2002 and the effects of multiple minor heart procedures between 2000
and 2006.
Appellant has not submitted any medical evidence which establishes that he was
incompetent within the meaning of the Act for any period between 1968 and 2006. Although he
has submitted some medical evidence showing that his heart conditions in 1977 and 1990 might
have impaired his ability to perform certain tasks, he has not submitted any evidence to establish
that he was incompetent at any time. The medical reports do not establish that appellant was in
capable of filling out a form or of otherwise furnishing the relatively simple information
necessary for filing a claim and satisfying the time limitation requirements such that he would be
considered incompetent within the meaning of the Act.30 Therefore, he has failed to show that
the time limitations of sections 8122(a) and 8122(b) do not run against him.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for several
employment-related conditions on the grounds that it was untimely filed.

29

There is no indication in the record that appellant provided a statement to his immediate superior such that he
satisfied the provisions of sections 8119 and 8122(a) of the Act. See supra note 19 and accompanying text.
30

See supra notes 20 and 21 and accompanying text. The Board further notes that the fact that appellant was able to
work between 1968 and 1975 and for several periods thereafter shows that he was not incompetent for the entire
claimed period between 1968 and 2006. In addition, appellant has not shown that he is entitled to have the time
limitations toll due to “exceptional circumstances” as provided by section 8122(d)(3) of the Act. See supra note 22 and
accompanying text.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 20, 2007 and December 20, 2006 decisions are affirmed.
Issued: April 18, 2008
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

8