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

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

Docket No. 20-1585
Issued: August 4, 2021

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 September 8, 2020 appellant filed a timely appeal from a March 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $55,286.21, for which she was without fault, for
the period June 19, 2012 through July 20, 2019, because the pay rate used to determine her
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the March 13, 2020 decision.
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.

compensation was calculated incorrectly; (2) whether OWCP properly denied waiver of recovery
of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $891.40 from appellant’s continuing compensation payments.
FACTUAL HISTORY
On March 22, 2012 appellant, then a 49-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, earlier that day, she sustained a right upper extremity injury when
a high-speed tray sorter bar struck her right hand as she cleared a jam while in the performance of
duty. She stopped work on March 22, 2012 and returned to work on April 2, 2012. On April 11,
2012 OWCP accepted the claim for right hand contusion.
On June 18, 2012 appellant accepted a part-time modified position as a mail handler,
working three hours a day with restrictions. On June 29, 2012 she filed a claim for compensation
(Form CA-7) for intermittent leave without pay from June 18 through 28, 2012, with night
differential. On the reverse side of the claim form, the employing establishment noted that on
March 22, 2012 appellant’s pay rate as a Grade 5, Step J was $52,080.00 a year, with $50.03 a day
in night differential pay, and $55.50 a week in Sunday premium pay. Appellant filed additional
claims for compensation for intermittent disability through July 27, 2012.
In an August 1, 2012 pay rate memorandum, based on information from the employing
establishment, OWCP calculated that appellant’s annual base salary as of March 22, 2012 was
$52,028.00 or $1,000.54 per week, with an additional $55.50 per week in Sunday premium pay,
and $250.15 per week in night differential pay.
OWCP paid appellant wage-loss compensation on the supplemental rolls commencing
June 19, 2012, based on a weekly pay rate of $1,306.19 and placed her on the periodic rolls,
effective June 28, 2015.
On November 9, 2015 appellant returned to full-time modified-duty work as a sales
solution team member, with annual earnings of $56,257.00. OWCP paid her wage-loss
compensation for lost Sunday premium and night differential pay on the supplemental rolls. It
returned appellant to the periodic rolls, effective November 12, 2017 as there was no work
available within her restrictions.
In July 22, 2019 memoranda, OWCP noted that the employing establishment clarified that
appellant’s date-of-injury base pay rate was $1,000.54 per week, with Sunday premium pay of
$50.03 per week and night differential of $55.50 per week, to equal $1,106.07 per week.
Appellant’s current pay rate was $55,221.00 per year or $1,061.94 per week, with combined night
differential and premium pay of $112.00 per week, to equal $1,173.95 per week. OWCP calculated
that her actual weekly wage-earning capacity was $56,605.00 a year or $1,088.55 a week.
In a January 9, 2020 overpayment memorandum, OWCP noted that it identified a potential
overpayment in appellant’s case as she had been paid compensation for the period June 19, 2012
through July 20, 2019 based on night differential pay of $55.50 per day instead of $55.50 per week,
and Sunday premium pay at $55.50 per week instead of $50.03 per week. It calculated that, from

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June 19, 2012 through July 20, 2019, she had been paid $299,109.41 in wage-loss compensation,
but was entitled to only $243,823.20, a difference of $55,286.21.
On January 10, 2020 OWCP issued a preliminary determination, finding that an
overpayment of compensation in the amount of $55,286.21 had been created because the pay rate
used to determine appellant’s compensation for the period June 19, 2012 through July 20, 2019
was calculated incorrectly. It had included night differential pay of $55.50 per day instead of
$55.50 per week, and calculated Sunday premium pay at $55.50 per week instead of $50.03 per
week. OWCP found that appellant was without fault in creation of the overpayment. It forwarded
an overpayment recovery questionnaire (Form OWCP-20) for her completion. OWCP explained
that appellant was to attach supporting financial documentation including income tax returns, bank
account statements, bills and cancelled checks, pay slips, and any other records. It advised her that
it would deny waiver of recovery if she failed to furnish the requested financial information.
Additionally, OWCP 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 response, appellant submitted a completed Form OWCP-20 signed on February 8, 2020.
She contended that recovery of the overpayment would cause significant financial hardship.
Appellant listed total monthly household income of $12,288.00, which included $3,565.00 in
wage-loss compensation benefits. She listed assets of $9,958.00 in cash and bank accounts.
Appellant noted expenses of $2,778.00 a month for mortgage payments and homeowner’s
insurance, $525.00 for food, $763.00 for clothing, and $1,350.00 in miscellaneous expenses. She
also listed monthly debt repayments of $1,328.00 on a home equity line of credit, and $1,106.00
in other debt repayment for a total of $7,850.00 in living expenses. Appellant submitted detailed
financial documentation of the listed income, assets, and expenses.
By decision dated March 13, 2020, OWCP finalized the preliminary determination that
appellant received an overpayment of compensation in the amount of $55,286.21, for the period
June 19, 2012 through July 20, 2019, because she was paid FECA wage-loss compensation based
on an incorrect pay rate. It found her without fault in the creation of the overpayment, but denied
waiver of recovery based on its consideration of the financial evidence submitted. OWCP found
that appellant had established monthly income of $12,288.00 and monthly expenses of $7,850.00,
resulting in monthly net income greater than $50.00. It required recovery of the overpayment by
deducting $891.40 every 28 days from her continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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.3 Section 8129(a) 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

3

5 U.S.C. § 8102(a).

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to which an individual is entitled.”4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Once the proper time period is determined, section 8114(d)(1)(A) provides a specific
methodology for determining pay rate:
“(d) Average annual earnings are determined as follows-(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of
pay.”6
OWCP’s procedures provide that, if the employee did not stop work on the date of injury
or immediately afterwards, defined as the next day, the record should indicate the pay rate for the
date of injury and the date disability began. The greater of the two should be used in computing
compensation and if they are the same, the pay rate should be effective on the date disability
began.7 In computing the weekly pay rate for an employee who receives an annual salary,
including postal workers, the annual salary is divided by 52.8 The procedures further indicate that
administrative inclusions should be included in computing an employee’s pay rate, including night
differential, shift differential, holiday pay, and premium pay for weekend work.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $55,286.21, for which she was without fault, for the period
June 19, 2012 through July 20, 2019, because the pay rate used to determine her wage-loss
compensation was calculated incorrectly.
OWCP paid appellant compensation for the period July 19, 2012 through July 20, 2019
based on a weekly pay rate of $1,000.54 per week, with night differential pay of $55.50 a day and
Sunday premium pay of $55.50 per week. In a January 9, 2020 memorandum, it explained that it
4

Id. at § 8129(a).

5

Id. at § 8116(a); see G.H., Docket No. 19-0770 (issued March 5, 2020); Danny E. Haley, 56 ECAB 393 (2005).

6

Id. at § 8114(d)(1)(A).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5a(3)
(September 2011).
8

Id. at Chapter 2.900.10a (March 2011).

9

Id. at Chapter 2.900.6b (March 2011).

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had erred by paying her compensation based of night differential premium pay of $55.50 per day
when she was entitled to only $55.50 per week, and Sunday premium pay of $55.50 per week
whereas the correct amount was $50.03 per week. OWCP calculated that appellant had been paid
$299,109.41 in compensation for the period at issue, but was entitled to only $243,823.20. OWCP,
therefore, properly determined fact of overpayment.
The Board further finds that OWCP properly calculated the amount of the overpayment.
OWCP properly determined appellant’s weekly pay rate by dividing her annual base pay of
$52,028.00 by 52 to reach a weekly salary of $1,000.54.10 As appellant received compensation
based on an incorrect rate of Sunday premium and night differential pay, she received an
overpayment of compensation for the period June 19, 2012 through July 20, 2019 in the amount
of $55,286.21.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 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.12 Section 10.438 of OWCP’s regulations provides 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. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.13
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.14
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown that she needs substantially all of her current income to meet
ordinary and necessary living expenses. As her monthly household income of $12,288.00 exceeds
her monthly expenses of $7,850.00 by more than $50.00, in this case, $ 4,438.00, she has not
shown that she needs substantially all of her current income to meet current ordinary and necessary

10

See S.P., Docket No. 19-1318 (issued July 31, 2020); L.D., Docket No. 19-0320 (issued July 26, 2019).

11

Id.

12

5 U.S.C. § 8129.

13

20 C.F.R. § 10.438; see D.M., Docket No. 19-1369 (issued June 30, 2020).

14

L.S., 59 ECAB 350 (2008).

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living expenses.15 Because appellant has not met the first prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is unnecessary for OWCP to
consider the second prong of the test based on her assets.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.16
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly
denied waiver of recovery of the $55,286.21 overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.17
Section 10.441(a) of OWCP s regulations18 provides in pertinent part:
When an overpayment has been made to an individual who is entitled to further payments,
the individual shall refund to OWCP the amount of the overpayment as soon as the error
is discovered or his or her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual, and any
other relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds this case is not in posture for decision regarding recovery of the
overpayment.
OWCP found that appellant had total monthly income of $12,288.00 and expenses of
$7,850.00, and that her monthly income exceeded her expenses by more than $50.00. Its
regulations provide that the overpaid individual is responsible for providing information about

15

20 C.F.R. § 10.437(a), (b).

16

Id.

17

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

18

Id. at § 10.441(a).

19
P.L., Docket No. 20-0709 (issued March 18, 2021); J.K., Docket No. 20-1190 (issued January 8, 2021); see C.M.,
Docket No. 19-1451 (issued March 4, 2020).

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income, expenses, and assets as specified by OWCP.20 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed to
collect the debt promptly and in full.21 The Federal (FECA) Procedure Manual provides that, in
these instances, OWCP should set the rate of repayment at 25 percent of the 28-day net
compensation amount until the balance of the overpayment is paid in full.22
In this case, appellant responded to the preliminary overpayment determination and
submitted detailed financial information and supporting documentation for OWCP’s
consideration. OWCP, however, erroneously applied a rate of repayment at 25 percent of the net
28-day compensation, ordering that $891.40 be deducted from her continuing compensation every
28 days. It should have applied the appropriate standard for when the requested financial
information is received in response to the preliminary overpayment determination.23
The case will, therefore, be remanded to OWCP for further consideration of the rate of
recovery of the $55,286.21 overpayment from appellant’s continuing compensation benefits to be
followed by a de novo decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $55,286.21, for which she was without fault, for the period
June 19, 2012 through July 20, 2019, because the pay rate used to determine her compensation
was calculated incorrectly. The Board also finds that OWCP properly denied waiver of recovery
of the overpayment of compensation. The Board further finds that this case is not in posture for
decision regarding recovery of the overpayment.

20

20 C.F.R. § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

21

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

22

Supra note 8 at Chapter 6.500.8(c)(1) (September 2018); D.H., Docket No. 20-1064 (issued December 14, 2020).

23

Supra note 8 at Chapter 6.500.8(c)(2) (September 2018); see also P.L., supra note 19.

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ORDER
IT IS HEREBY ORDERED THAT the March 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: August 4, 2021
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

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

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1980
Issued: June 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2010 appellant, through her representative, filed a timely appeal from the
March 18, 2010 merit decision of the Office of Workers’ Compensation Programs terminating
her compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective March 18, 2010 on the grounds she no longer had any residuals or disability causally
related to her accepted employment-related injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 9, 2002 appellant, then a 38-year-old mail processor, filed a traumatic injury
claim alleging that on that day she felt pain in her lower back and right leg while lifting the cover
of a machine to clear a jam. The Office accepted the claim for muscle spasms in the back and
paid appropriate benefits. Appellant stopped work on July 9, 2002 and returned to a
modified-duty position on September 23, 2003. On September 15, 2004 the Office accepted her
recurrence claim of April 13, 2004. On November 16, 2004 it informally reduced appellant’s
compensation, effective September 29, 2003, to reflect her actual earning in her modified
employment.
On March 28, 2008 the Office received a claim for a recurrence commencing
March 21, 2005. Appellant stated that, while boxing mail on March 21, 2005, she had back pain
and spasms and numbness and pain through her legs. She also indicated that she worked four
hours a day in a modified mail processor position with restrictions. Appellant stopped work on
March 21, 2005. She has not returned.
On April 2, 2008 the Office requested additional information about the claimed
recurrence of March 21, 2005.
Appellant responded to the Office’s request in an April 10, 2008 statement. In a
March 17, 2008 letter, the employing establishment stated that she last worked on February 24,
2005 for four hours and was on sick leave between February 25 and March 2, 2005. As of
March 3, 2005, appellant had not worked for the employing establishment.
In April 2008, the Office referred appellant for a second opinion examination to
determine whether her current condition and disability was related to the accepted condition. In
a May 6, 2008 report, Dr. Sanford R. Wert, a Board-certified orthopedic surgeon, noted the
history of injury, his review of the medical record and the statement of accepted facts. He noted
that appellant returned to work in a modified capacity 15 months following the injury with her
last day at work March 21, 2005. Dr. Wert presented his examination findings and opined there
were no objective findings of any compensable conditions. He stated that the injury-related
conditions had resolved and there were no disabling residuals from the traumatic work-related
injury. Dr. Wert opined that appellant reached maximum medical improvement and could
resume full-time normal employment with no restrictions or limitations. He advised that
appellant has a lumbosacral spine herniated disc which preexisted the work injury that could
cause intermittent symptomatology and which also could prevent her from returning to full-time
work without restrictions.
In an April 24, 2008 work capacity evaluation, Dr. Daniel W. Wilen, a Board-certified
orthopedic surgeon, opined that appellant was totally disabled due to injuries from her July 9,
2002 work injury. He also opined that she was unable to work due to her lumbar spine disc
herniations at L4-5 and disc bulges at L3-4 and L5-S2.
In June 2008, the Office scheduled appellant for an impartial medical examination with
Dr. Stanley Soren, a Board-certified orthopedic surgeon, to resolve the conflict in medical
opinion with regards to ongoing treatment, causal relationship and continued disability. In an

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August 12, 2008 report, Dr. Soren noted the history of injury, his review of the medical record
and statement of accepted facts and presented his examination findings. He provided diagnoses
of lumbosacral sprain/strain with associated muscle spasm, herniated lumbar disc L4-5 and
lumbar radiculopathy. Dr. Soren stated that appellant had recovered from the lumbosacral
sprain/strain, which was a temporary aggravation of the preexistent lumbar disc herniation. He
stated that her disc herniation with associated lumbar radiculopathy remained. Dr. Soren
explained that there was no further need for any orthopedic treatment since she reached
maximum medical improvement and the work-related injury had resolved. He opined that
appellant could not work due to her preexistent herniated discs in the lumbar area and the
associated lumbar radiculopathy, which was unrelated to the work injury.
On November 24, 2008 the Office proposed to terminate appellant’s compensation
benefits and deny the March 21, 2005 recurrence claim on the grounds that the medical evidence,
as characterized by Dr. Soren’s report, established that she no longer had any residual findings or
disability from work due to the work injury.
In response to the proposed termination, the Office received a note from Dr. Paul T.
Branda, an internist, a request for continued physical therapy and copies of physical therapy
progress notes.
By decision dated December 24, 2008, the Office finalized the termination of appellant’s
compensation benefits effective January 18, 2009. On December 29, 2008 appellant, through her
attorney, requested a telephonic hearing, which was held on April 20, 2009. Counsel argued that
Dr. Soren had erroneously assumed appellant was suffering from lumbar radiculopathy at the
time of the 2002 injury, noting that the condition was not addressed until October 2003
diagnostic testing. He further argued that appellant had worked in a restricted-duty position prior
to June 2002, as a result of her herniated disc condition, but returned to her regular duties
without restriction when the July 9, 2002 work injury occurred. Counsel asserted that the
statement of accepted facts was misleading as it indicated a history of back conditions and
sciatica, but appellant had not been diagnosed with any preexisting sciatica or radiculopathy
conditions. Appellant also testified as to her working conditions prior to and after her work
injury.
Copies of physical therapy reports were submitted. In a May 7, 2009 report, Dr. Branda
discussed appellant’s treatment and disagreed with Dr. Soren’s conclusion regarding preexisting
diagnoses of sciatica and radiculopathy stating there was no evidence of either condition prior to
the July 2002 work event. He also stated that she had recovered from her preexisting disc injury
to the extent she was able to return to work with limitation as of the July 2002 work injury.
Dr. Branda stated that disc injury patients were more prone to additional injury and opined that
appellant’s disc injury became symptomatic as a result of the work injury which resulted in
radiculopathy.
By decision dated July 9, 2009, an Office hearing representative set aside the Office’s
December 4, 2008 decision and remanded the case for further development. The Office hearing
representative found that there continued to be a conflict regarding causal relationship of the
diagnosed radiculopathy condition. The Office hearing representative requested that Dr. Soren
be provided with the medical record and provide a supplemental report containing a rationalized

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discussion concerning his conclusion regarding the diagnosed radiculopathy as preexisting the
July 2002 work injury, his conclusion that the work injury caused a temporary aggravation and
why appellant’s ongoing condition was unrelated to or a result of the 2002 injury.2
Following the Office hearing representative’s remand instructions, the Office referred
appellant to Dr. Soren with a revised statement of accepted facts and additional medical reports
on file. It continued to receive progress notes, physician’s notes, physical therapy notes and
requests for authorization.
In a November 10, 2009 report, Dr. Soren reviewed the medical record and provided new
examination findings. Examination revealed no lumbar muscle spasm. While appellant walked
with a cane, her gait was normal with the cane and without it. Straight leg raising on the right
was normal and to 65 degrees on the left. Dr. Soren diagnosed lumbosacral sprain/strain with
associated muscle spasms but noted that there was no spasm present on either of his
examinations. He also diagnosed herniated lumbar disc L4-5 and lumbar radiculopathy.
Dr. Soren indicated that the medical reports by two examiners which noted marked improvement
in appellant’s condition after her July 9, 2002 work injury indicated that there was a temporary
aggravation of her preexisting lumbar disc herniation by the lumbosacral sprain/strain injury of
July 9, 2002 and that she had improved. He stated that, when there is a preexisting diagnosis of a
herniated disc, such as this case, it was possible for there to be specific activity induced
exacerbations and remissions. Thus, Dr. Soren opined that the radiculopathy predated the July 9,
2002 work injury and was temporarily aggravated by the July 9, 2002 lumbosacral sprain/strain,
which had resolved. He also stated ongoing symptomatology in the low back is not unusual
when there is considerable discrepancy between the height and weight of the person, such as in
appellant’s case. Dr. Soren opined that the resolved lumbosacral sprain/strain related to the
July 9, 2002 work injury had resolved as of the time of appellant’s July 7, 2003 examination with
Dr. Phillip Lewis3 which was confirmed on October 20, 2003 by Dr. Wert4 in that she was able
to return to work full duty. He reiterated that appellant could not return to work due to her
nonjob-related diagnoses of disc herniation and associated lumbar radiculopathy.
By decision dated March 18, 2010, the Office finalized the termination of appellant’s
medical and wage-loss benefits and denied the recurrence of disability claim. Special weight
was accorded to Dr. Soren’s November 10, 2009 medical opinion that there were no longer any
residuals or disability referable to the July 9, 2002 work injury.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.5 The Office may not terminate compensation without
2

The Office reinstated compensation benefits pending a final decision.

3

Dr. Lewis, an osteopath and orthopedic surgeon, conducted a second opinion examination, noted an impression
of resolved lumbosacral sprain/strain and opined that no further treatment was required.
4

Dr. Wert diagnosed an aggravation of a preexisting lumbosacral spine injury but opined that appellant no longer
had work-related disability or a need for further medical treatment.
5

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

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establishing that disability ceased or that it was no longer related to the employment.6 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
Section 8123(a) 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 In situations where 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.9
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report.10 Where such
clarification is required and is forthcoming, the opinion of the impartial specialist, if sufficiently
well rationalized and based upon a proper factual background, is also entitled to special weight.11
ANALYSIS
The Office accepted that appellant sustained employment-related muscle spasms in her
back on July 9, 2002. Appellant filed a claim on March 28, 2008 for a recurrence commencing
March 21, 2005. The Office found a conflict in medical opinion was created between her
physician, Dr. Wilen, who opined appellant was totally disabled from the work-related injury,
and the second opinion physician, Dr. Wert, who opined that she could return to full-time work
with no restrictions as the injury-related conditions had resolved and there were no disabling
residuals from the work injury. It referred appellant to Dr. Soren to resolve the conflict.
Following a supplemental report from Dr. Soren clarifying that appellant had preexisting lumbar
disc condition with radiculopathy unrelated to the July 9, 2002 work injury, the Office denied
appellant’s recurrence claim and terminated her entitlement to wage loss and medical benefits on
March 18, 2010 on the grounds the medical evidence was insufficient to support continued workrelated residuals or disability.
The Board finds that the thorough well-documented November 10, 2009 addendum
report of Dr. Soren, the impartial medical specialist selected to resolve the medical conflict, is
entitled to special weight. Dr. Soren reviewed appellant’s complete medical history, examined
6

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

7

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

8
9

5 U.S.C. § 8123(a).
R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

10

Harold Travis, 30 ECAB 1071 (1979).

11

Aubrey Belnavis, 37 ECAB 206, 212 (1985).

5

her for a second time and found no objective evidence of ongoing residuals or disability due to
the accepted condition. He indicated that no muscle spasm was seen either in the November 10,
2009 or in the August 12, 2008 evaluation of her diagnosed lumbosacral sprain/strain with
associated muscle spasms. Dr. Soren also diagnosed herniated lumbar disc L4-5 and lumbar
radiculopathy, which he opined were preexisting to the July 9, 2002 work injury. He noted two
medical examiners of record had noted marked improvement in appellant’s condition after her
July 9, 2002 work injury, which he indicated was a temporary aggravation of her preexisting
lumbar disc herniation by the lumbosacral sprain/strain injury of July 9, 2002 and that she had
improved. Dr. Soren explained that, when there is a preexisting diagnosis of a herniated disc,
such as this case, it was possible for there to be specific activity induced exacerbations and
remissions. Thus, he opined that the radiculopathy predated the July 9, 2002 work injury and
was temporarily aggravated by the July 9, 2002 lumbosacral sprain/strain, which had resolved.
Dr. Soren also stated as there was considerable discrepancy between appellant’s height and
weight, it was not unusual to have ongoing symptomatology in the low back. He opined that the
lumbosacral sprain/strain related to the July 9, 2002 work injury had resolved as noted in
Dr. Lewis’ July 7, 2003 examination and confirmed by Dr. Wert on October 20, 2003, by the fact
she was able to return to work full duty. Dr. Soren reiterated that appellant could not return to
work on the basis of her nonjob-related diagnoses of disc herniation and associated lumbar
radiculopathy.
The Office properly accorded special weight to the impartial medical examiner’s
November 10, 2009 findings. The Board finds that Dr. Soren’s report is sufficiently well
rationalized and based on a proper factual background and represents the weight of the medical
evidence and establishes that the accepted lumbosacral sprain/strain injury of July 9, 2002 had
resolved without residuals and appellant’s nonjob-related diagnoses of disc herniation and
associated lumbar radiculopathy had preexisted the July 9, 2002 work injury. Dr. Soren fully
discussed the history of injury and explained that there were no objective findings to support that
appellant had any continuing employment-related residuals or disability. He further provided
rationale support by the medical record that appellant’s radiculopathy condition preexisted the
July 9, 2002 work injury. The Board finds that Dr. Soren’s opinion is detailed, well rationalized
and based upon a complete and accurate history and therefore represents the weight of the
medical evidence. Accordingly, the Office met its burden of proof to terminate compensation.
The Board also notes that, as Dr. Soren found that appellant’s work-related condition had
resolved by October 2003, the evidence is insufficient to establish a recurrence of disability
beginning March 21, 2005.12 Dr. Soren found no basis on which to attribute appellant’s
disability to her accepted condition.

12

See 20 C.F.R. § 10.5(x). A recurrence of disability means an inability to work after an employee has returned
to work, caused by a spontaneous change in a medical condition, which had resulted from a previous injury or
illness without an intervening injury or new exposure to the work environment that caused the illness. This term
also means an inability to work that takes place when a light-duty assignment made specifically to accommodate an
employee’s physical limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations. In this
case, there also is no evidence appellant’s light duty was withdrawn.

6

On appeal, counsel for appellant contends that the supplemental report of Dr. Soren is
vague and speculative and fails to provide an objective basis for his opinion that the
radiculopathy preceded the July 9, 2002 work injury or explain why there is no evidence of
radiculopathy prior thereto. He contends that Drs. Wilen and Branda give rationale supported by
objective findings as to the herniated disc problem being present before July 9, 2002 but
asymptomatic, i.e., without radiculopathy, until the July 9, 2002 incident that caused the
symptoms and radiculopathy. The Board notes that it was on the basis of Dr. Branda’s report
that the Office hearing representative remanded the case for a clarification report from Dr. Soren,
who provided reasoning for his opinion addressing this matter while Dr. Branda’s report is of
limited probative value as it provided insufficient medical rationale in support of its
conclusions.13 Dr. Wilen’s opinion is insufficient as he was on one side of a conflict that was
resolved by Dr. Soren.14 The Board finds that Dr. Soren’s November 10, 2009 supplemental
report establishes that the radiculopathy preexisted the July 9, 2002 work injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits.

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
14

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

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 18, 2010 is affirmed.
Issued: June 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1822
Issued: August 5, 2009

Case Submitted on the Record

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

JURISDICTION
On June 16, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 30, 2007, denying modification of a
termination of compensation effective June 10, 2007. 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 the Office properly terminated compensation for wage-loss and
medical benefits effective June 10, 2007.
FACTUAL HISTORY
Appellant, then a 38-year-old substitute letter carrier, was injured on December 24, 1964
when a dog ran up behind her and caused her to turn quickly and twist her back. The Office
accepted that appellant sustained a lumbosacral sprain and aggravation of lumbar spondylosis
without myelopathy causally related to the employment incident. The record reflects that on
January 31, 1980 the Office had determined that appellant’s actual earnings in a modified
position fairly and reasonably represented her wage-earning capacity. Appellant returned to

work in a modified position and continued to receive compensation based on her loss of wageearning capacity. She regularly submitted updated medical reports to the Office, as requested.
As part of the periodic review of the file in 2006, appellant was again requested to obtain
a medical report to establish continuing disability. She submitted a medical report from
Dr. Anthony Kwon, an orthopedic surgeon, Arthritis Clinic and Carolina Bone and Joint, dated
December 14, 2006. Dr. Kwon provided a history and results on examination and reported
normal range of motion and strength with mild pain in the lumbar spine and that her condition
“is stable and although, it is still present and I will see her back as needed.” (sic)
In a report dated January 3, 2007, an attending orthopedic surgeon, Dr. Sarjoo Bhagia,
provided a history and results on examination. He noted that appellant had been receiving
compensation for partial disability for 42 years, but opined that appellant had recovered from her
December 24, 1964 employment injury. Dr. Bhagia noted that although appellant suffers from
lumbar spondylosis, an age-related condition, any work-related aggravation of lumbar
spondylosis had resolved. He noted that appellant could not return to the preinjury position, but
she could perform sedentary work with restrictions of avoiding lifting more than 20 pounds and
avoiding excessive bending and twisting of her lumbar spine.
In a letter dated April 11, 2007, the Office notified appellant that it proposed to terminate
her compensation based on the medical evidence. It found the medical report of Dr. Bhagia was
the weight of the evidence and established that her disability had resolved. Appellant provided
no response to the proposed termination decision, and on May 23, 2007 the Office issued the
final termination notice for wage-loss and medical benefits effective June 10, 2007.
Appellant requested reconsideration of her claim in a letter received by the Office on
October 12, 2007. By report dated August 1, 2007, Dr. Bhagia noted appellant’s disagreement
with his earlier report but reiterated that, “I do not see any evidence on x-rays dated March 12,
2004 that could be directly linked to the injury of December 1964.” In a report dated
September 12, 2007, Dr. James Boatright, an orthopedic surgeon, provided results on
examination. He stated that appellant “does have degenerative disease of the lower spine
although this well could be and is likely caused by injuries of many years ago and, certainly, if
not absolutely caused by it, could be enhanced by it.” In a report dated September 14, 2007,
Dr. Frank E. Lorch, an orthopedic surgeon, provided a history and results of physical and
radiologic examinations. He stated that appellant had recovered from her work-related injury,
and any residual pain was due to the degenerative process.
By decision dated November 30, 2007, the Office reviewed the case on its merits and
found the evidence was insufficient to warrant modification.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, the Office may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.1 The right to medical
1

Patricia A. Keller, 45 ECAB 278 (1993).

2

benefits for an accepted condition is not limited to the period of entitlement to compensation for
disability. To terminate authorization for medical treatment, the Office must establish that
appellant no longer has residuals of an employment-related condition which require further
medical treatment.2
Rationalized medical opinion evidence is medical evidence based on a complete factual
and medical background of reasonable medical certainty and supported by medical rationale
explaining the opinion offered.3
After termination or modification of benefits are clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant.4
ANALYSIS
The Office terminated compensation for wage-loss and medical benefits as of June 10,
2007 based on the report of attending physician Dr. Bhagia. The January 3, 2007 report from
Dr. Bhagia provided a history and results on examination. He opined that appellant’s current
lumbar spondylosis was age related and the work injuries had resolved. He provided a
rationalized medical opinion based on a complete factual and medical background. Appellant
had an opportunity to submit additional relevant medical evidence prior to the May 23, 2007
Office decision, but none was submitted. The Board finds the weight of the medical evidence
was represented by Dr. Bhagia, and the Office met its burden of proof to terminate compensation
for wage-loss and medical benefits.
As noted above, appellant had received a loss of wage-earning capacity determination in
1980. The Board has established that once a loss of wage-earning capacity is determined, it
remains in place unless modified.5 A modification of such a determination is not warranted
unless there is a material change in the nature and extent of the employment-related condition,
the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was in fact erroneous.6 In certain situations, however, if the medical evidence is
sufficient to meet the Office’s burden of proof to terminate benefits, the same evidence may also
negate a loss of wage-earning capacity such that a separate evaluation of the existing wageearning capacity determination is unnecessary.7 The Office’s burden to demonstrate no further
disability is effectively the same, irrespective of whether there is an existing determination in
place finding loss of earning capacity. Case law may suggest that a threshold evaluation of the
wage-earning capacity needs to be performed before there is a termination of benefits. The
2

Furman G. Peake, 41 ECAB 361 (1990).

3

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

4

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

5

A wage-earning capacity determination remains in effect until it is properly modified. See Katherine T. Kreger,
55 ECAB 633 (2004).
6

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

7

There may exist a situation where a separate analysis would be necessary, based on preexisting conditions or
other medical conditions, but that situation does not present itself in this case. Should those particular facts arise,
this decision does not preclude a further consideration of the matter.

3

Board finds, however, that the burden is often substantially the same, the evidence is the same
and the process of terminating benefits need only be done once. While a claimant may still have
unrelated medical conditions or impairments, the medical evidence must establish that the
employment-related disability and medical conditions no longer exist.
In this case, as the Board finds that the Office properly terminated benefits, no further
analysis on the modification of the wage-earning capacity is necessary.
Following the termination, appellant submitted an August 1, 2007 report from Dr. Bhagia
which supported the termination as he found that her work-related aggravation of spondylosis
had resolved. The September 12, 2007 report from Dr. Boatright noted that appellant had a
degenerative lumbar condition that “could be and is likely caused” by earlier injuries. He does
not provide a complete factual and medical history or medical rationale as to causal relationship
between a degenerative lumbar condition and the employment injury from 1964. The record also
contains a September 14, 2007 report from Dr. Lorch, who indicated that appellant had
recovered from her work injuries. The Board finds the evidence submitted after May 23, 2007
does not establish an employment-related condition or disability after June 10, 2007.
CONCLUSION
The Office met its burden of proof to terminate compensation for wage-loss and medical
benefits effective June 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 30, 2007 is affirmed.
Issued: August 5, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, FAR ROCKAWAY
POST OFFICE, Far Rockaway, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1044
Issued: March 16, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 30, 2021 appellant, through counsel, filed a timely appeal from an April 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-1044.
On November 20, 2019 appellant, then a 41-year-old city carrier, filed a notice of
recurrence (Form CA-2a) alleging that on October 25, 2019 he sustained a recurrence of disability
and the need for medical treatment causally related to his accepted January 10, 2018 employment
injury,2 after his return to light-duty work. He related that his left hip degenerative joint disease
was caused by work-related activities including, sitting on a folding chair, walking, and loading
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 record reflects that appellant has an accepted traumatic injury claim (Form CA-1) for left hip tear sustained
on January 10, 2018 following a slip and fall on ice. Appellant returned to work following this injury on
October 1, 2019. OWCP assigned this claim File No. xxxxxx514.

parcels into a postal container, however, that he had not sustained any injury between January 10,
2018 and October 7, 2019. Appellant stopped work on October 25, 2019. OWCP assigned this
claim No. xxxxxx572.
In an October 30, 2019 report, Dr. Donald Rose, a Board-certified orthopedic surgeon,
noted that appellant was approximately one year and six months status postoperative left hip
arthroscopy. He noted that appellant had returned to work and that he was working outside his
recommended restrictions. Dr. Rose explained appellant’s pain occurred when he increased
activities, which was consistent with arthritic changes.
In a November 12, 2019 report, Dr. Craig Capeci, a Board-certified orthopedic surgeon,
diagnosed left hip degenerative joint disease. He noted that appellant’s left hip pain related back
to a January 2018 work injury when he injured his left hip while slipping and falling on ice.
Dr. Capeci reported that appellant returned to work in September 2019 following the January 2018
work injury. Appellant stopped work after three weeks as his pain progressively worsened. He
explained that appellant had left hip arthritis in the setting of his 2018 left hip injury and labral
tear.
In a letter dated February 19, 2020, the employing establishment requested OWCP
adjudicate appellant’s recurrence claim as a new occupational disease claim based on his
identification of new work factors as the cause of his alleged condition. OWCP subsequently
converted the claim from a recurrence to an occupational disease claim.
By decision dated May 5, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the accepted employment factors.
On January 11, 2021 appellant, through counsel, requested reconsideration and submitted
an August 19, 2020 report from Dr. Capeci.
Dr. Capeci, in his August 19, 2020 report, summarized appellant’s treatment from June 4,
2018 through August 19, 2020. Diagnoses included status post left hip arthroscopy and left hip
degenerative joint disease. Dr. Capeci opined that it was reasonable to attribute appellant’s left
hip degenerative joint disease to the accepted January 10, 2018 employment injury.
By decision dated April 2, 2021, OWCP denied modification. It found that Dr. Capeci’s
report did not discuss the claimed work factors, but rather explained that appellant’s left hip
condition was caused by the traumatic event of January 10, 2018, which was already accepted for
left hip strain and was currently open for medical care.

2

The Board, having duly considered the matter, finds that the case is not in posture for
decision.3
The Board finds that OWCP’s procedures provide that cases should be administratively
combined when correct adjudication of the issues depends on frequent cross-referencing between
case files.4 For example, if a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body, doubling is required.5
As OWCP File Nos. xxxxxx572 and xxxxxx514 both involve injuries to appellant’s left
hip, for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No xxxxxx514.6 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP sha ll issue a
de novo decision.

3

The Board notes that appellant filed his claim as one for a recurrence of his accepted condition under OWCP File
No. xxxxxx514. Dr. Capeci reported that appellant’s current condition was causally related to appellant’s accepted
January 10, 2018 employment injury under OWCP File No. xxxxxx514. However, OWCP converted appellant’s
recurrence claim, which was filed within 90 days of the first return to work, to a claim for occupational disease and
denied it as appellant had not established causal relationship. In cases where a recurrence is claimed within 90 days
of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the
work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see
also R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).
4

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
5

L.B., Docket No. 21-0241 (issued October 28, 2021).

6

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

3

IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, 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
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, DEFENSE
)
ACCOUNTING OFFICE, Norfolk, VA, Employer )
__________________________________________ )
T.G., Appellant

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

Docket No. 13-419
Issued: June 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 19, 2012 appellant filed a timely appeal from the June 26, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that she forfeited
her right to compensation, and from the August 16, 2012 merit decision which found her at fault
in the creation of an overpayment. 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 appellant forfeited her right to compensation for the period
March 12, 2000 to May 18, 2011; (2) whether she was at fault in creating a $243,055.55
overpayment of compensation; and (3) whether OWCP properly set the rate of recovery from her
continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 17, 1993 appellant, a 28-year-old payroll technician, sustained a traumatic injury
in the performance of duty while walking up stairs. Her heel got stuck and she twisted her left
ankle. OWCP accepted appellant’s claim for left ankle strain, herniated discs and depression.
She received compensation for temporary total disability on the periodic rolls.
Beginning on June 12, 2001, appellant annually completed EN1032 forms indicating that
during the past 15 months she did not work for any employer, was not self-employed or involved
in any business enterprise, was unemployed, and performed no volunteer work for which any
form of monetary or in-kind compensation was received.
In 2012 OWCP received an investigative report from the Department of Labor, Office of
the Inspector General (OIG), Office of Labor Racketeering and Fraud Investigations. The report
found that appellant worked as a legal assistant for the Law Office of Harry D. Harmon from
February 1999 to January 2006; she served as an administrative assistant for the Urban League
of Hampton Roads from February 2004 to August 2006; she worked as the Resident Agent,
Chief Executive Officer and President of Hampton Roads Disability Claims Resource Center,
Inc. (HRDCRC) since incorporating the business on July 10, 2008; and she was appointed by the
governor of Virginia to serve as a board member of the Norfolk State University Board of
Visitors (NSUBOV) from July 2010 to July 2011.
The investigation noted that during the first meeting she attended of NSUBOV, appellant
was recognized as “one of the fastest adults” and raised the most funds for a participant in the
Norfolk State University Run/Walk for Excellence. According to the NSUBOV Executive Vice
President and Chief Operating Officer, she was an avid runner and discussed exercising a lot.
Appellant participated in a 5k run and came in as one of the top finishers. An NSUBOV Liaison
and Office Manager corroborated appellant’s participation in the Run for Excellence. According
to an NSUBOV board member, appellant never mentioned being injured and was able to attend
and sit through meetings lasting several hours without having to stand up or walk around.
During an interview with agents, appellant admitted that since she began HRDCRC in
2008 she inaccurately answered “no” to the Form EN1032 question about self-employment and
involvement in any business enterprise.
In a sworn statement, appellant explained that she did not disclose to OWCP that she had
an actual business location for HRDCRC “out of fear of the unknown as to how this could affect
my disability claim.”
The OIG investigation found that, since her injury in 1993, appellant had applied for over
50 jobs on the Office of Personnel Management website, using HRDCRC, NSUBOV and other
positions to bolster her résumé. On her résumé, appellant stated that she worked as a volunteer
legal assistant February 1999 to January 2006 and as a volunteer administrative assistant
February 2004 to August 2006. She listed that she worked as the CEO and Founder of
HRDCRC from January 2008 to present.2

2

The OIG found that appellant incorporated HRDCRC on July 10, 2008.

2

On June 26, 2012 OWCP issued a decision finding that appellant forfeited her right to
compensation from March 12, 2000 to May 18, 2011 on the grounds that, under 5 U.S.C.
§ 8016(b), she knowingly failed to report her self-employment, business activity and volunteer
work for that period.
Also on June 26, 2012 OWCP made a preliminary determination that appellant received a
$243,055.55 overpayment of compensation from March 12, 2000 to May 18, 2011 because she
forfeited her right to compensation for that period. It found that she was at fault in creating the
overpayment because she knowingly failed to report her employment activities and because she
knowingly accepted compensation to which she was not entitled. OWCP attached a detailed
compensation payment history for the period and explained how it calculated the amount of the
overpayment.3
On an overpayment recovery questionnaire, appellant indicated that she had no income
and monthly household expenses of $1,912.00. She added that she had $2,145.00 in her
checking and saving accounts. Appellant did not believe that she was at fault in creating the
overpayment because she answered all questions to the best of her ability, did not receive
payment of any kind for any activity, fully complied with all OWCP requirements and did not
intentionally provide incorrect statements. She stated that she needed substantially all her
income to meet necessary living expenses.
On August 16, 2012 OWCP finalized its overpayment decision. It found that appellant
was at fault in creating the overpayment because she was aware or reasonably should have been
aware that her compensation could be forfeited for making incorrect statements and failing to
provide information of a material nature. OWCP concluded that she was at fault as she
knowingly accepted wage-loss compensation to which she was not entitled. It advised that the
overpayment would be recovered by deducting $25.00 from continuing compensation.
On appeal, appellant submits a new medical report. She argues that OWCP did not
thoroughly examine the evidence or the totality of the circumstances before declaring forfeiture.
Appellant argues, citing medical evidence, that her accepted severe depression imposed
significant restrictions on her ability to perform basic work activities. She states that she did not
knowingly omit or understate any earnings or work activity in making a report, and did not
intentionally fail to report her employment activities and earnings on forms covering the period.
Appellant argues that OWCP has established no earnings or other forms of remuneration from
her activities with the law office, the Urban League, the HRDCRC or otherwise, nor did OWCP
establish any financial interest in those activities or any benefit that inured to her based on those
activities. She also argues that she was not at fault in creating the overpayment and that OWCP
abused its discretion in denying waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
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, if
3

Starting with gross compensation from February 27, 2000 to May 7, 2011, OWCP subtracted compensation
from February 27 to March 11, 2000 and added compensation from May 8 to 18, 2011.

3

already paid, shall be recovered by a deduction from the compensation payable to the employee or
otherwise recovered under 5 U.S.C. § 8129, unless recovery is waived under that section.4
An employee who is receiving compensation for partial or total disability must advise
OWCP immediately of any return to work, either part time or full time. An employee must
report all outside employment, including any concurrent dissimilar employment held at the time
of injury, even if the injury did not result in any lost time in that position. In addition, an
employee who is receiving compensation for partial or total disability will periodically be
required to submit a report of earnings from employment or self-employment, either part time or
full time. The employee must report even those earnings that do not seem likely to affect his or
her level of benefits. Many kinds of income, though not all, will result in a reduction of
compensation benefits. While earning income will not necessarily result in a reduction of
compensation, failure to report income may result in forfeiture of all benefits paid during the
reporting period.5
An employee who is receiving compensation for partial or total disability is periodically
required to report volunteer activity or any other kind of activity which shows that the employee
is no longer totally disabled for work. The fact that the employee did not receive any salary for
this work is not a basis for failing to report this activity; instead the employee must report the
cost, if any, to have someone else do the work or activity.6
OWCP periodically requires each employee who is receiving compensation benefits to
complete an affidavit as to any work, or activity indicating an ability to work, which the
employee has performed for the prior 15 months.7 If an employee knowingly omits or
understates any earnings or work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was required.8
An employee is subject to the forfeiture provision of section 8106(b)(2) only if he or she
knowingly omitted or understated earnings. OWCP’s FECA procedure manual recognizes that
forfeiture is a penalty,9 and as a penalty provision, it must be narrowly construed.10 The term
“knowingly” is not defined within FECA or its regulations, but in common usage it is defined as
“with knowledge; consciously; intelligently; willfully; intentionally.”11

4

5 U.S.C. § 8106(b).

5

20 C.F.R. § 10.525.

6

Id. at § 10.526.

7

Id. at § 10.528.

8

Id. at § 10.529(a). These regulations have remained basically unchanged since they were revised effective
April 1, 1999.
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter
2.812.11.a(5) (March 2010).
10

Christine P. Burgess, 43 ECAB 449, 458 (1992).

11

Black’s Law Dictionary (5th ed. 1979); Anthony A. Nobile, 44 ECAB 268, 271-73 (1992).

4

ANALYSIS -- ISSUE 1
OWCP found that appellant forfeited her right to compensation from March 12, 2000 to
May 18, 2011 on the grounds that she knowingly failed to report her self-employment, business
activity and volunteer work for that period. An OIG investigative report found that she worked
as a legal assistant for the Law Office of Harry D. Harmon from February 1999 to January 2006;
she served as an administrative assistant for The Urban League of Hampton Roads from
February 2004 to August 2006; she worked as the Resident Agent, Chief Executive Officer and
President of HRDCRC since July 10, 2008; and she served as a board member of NSUBOV
from July 2010 to July 2011.
The Board has set standards pertaining to the probative value of investigative reports
used as evidence under a FECA claim.12 In this case, the investigative report was signed,
unredacted,13 and provided some probative evidence to support the findings made therein,
including a résumé and signed affidavit from appellant.14 Appellant did not deny that she
engaged in the cited activities during the period at issue. She argued instead that she did not
knowingly omit or understate any earnings or work activity in connection with her EN1032
forms.
Earnings are not a prerequisite to disclosure on Form EN1032. An employee who is
receiving compensation for partial or total disability is periodically required to report volunteer
activity or any other kind of activity which shows that the employee is no longer totally disabled
for work. OWCP had an interest in knowing whether appellant performed any activity as a legal
assistant, as an administrative assistant, as a resident agent or a chief executive officer or
president, or as a board member. Such activities may indicate that her accepted employment
injuries no longer totally disabled her for all work. Such activities are relevant to whether
appellant had the capacity to earn some level of wages in the open labor market, even if she had
no actual earnings. This information was material to her entitlement to compensation for wage
loss. By not reporting her activities, appellant prevented OWCP from examining whether she
was still entitled to compensation for total disability.
As appellant obviously had knowledge that she engaged in the cited activities, and as she
was conscious of the fact that she did not disclose those activities on her EN1032 forms, the
Board finds that she knowingly omitted work activity in violation of 5 U.S.C. § 8106(b)(2) and
the implementing regulations. She thereby forfeited her right to compensation with respect to
each reporting period for which disclosure was required.
The evidence indicates that appellant performed certain volunteer work activity from
February 1999 to August 2006. The OIG found that she performed other work activity since

12

B.Y., Docket No. 11-1798 (issued July 24, 2012); S.G., Docket No. 11-942 (issued April 4, 2012) (Groom, M.,
Alternate Judge, concurring); R.W., Docket No. 09-1607 (issued July 26, 2010); Marvin L. Ralph, 47 ECAB 626
(1996); Eugene R. Anderson, 40 ECAB 452 (1989).
13

R.B., Docket No. 12-455 (issued February 25, 2013).

14

Reports of Interview, usually prepared a few days after the interview, were unsigned by the party being
interviewed and will not be used to validate the information contained therein. See B.Y., supra note 12.

5

incorporating HRDCRC on July 10, 2008. This leaves a gap in activity from August 2006 to
July 10, 2008. OWCP did not address this gap.
The Form EN1032 that appellant signed on May 29, 2008 covered the previous 15 months,
a period that falls within the gap of her work activity. She had left her position as a volunteer
administrative assistant with the Urban League in 2006, and she had not yet incorporated
HRDCRC on July 10, 2008, according to the OIG investigation. The record does not establish that
appellant had work activity to disclose on this Form EN1032.
Appellant’s résumé does indicate that she founded and served as CEO of HRDCRC
beginning January 2008, six months earlier than the OIG reported. That would place her work
activity within the period covered by the Form EN1032 she signed on May 29, 2008. Knowing
omission of this activity would result in forfeiture for the entire period, but the evidence of when
she began this activity is conflicting. The Board finds that OWCP has failed to establish that
appellant forfeited her right to all compensation during this period. The Board will modify
OWCP’s June 26, 2012 decision accordingly.15
On appeal, appellant submits a new medical report. The Board’s review of a case,
however, 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.16 As appellant submitted the medical report in question after OWCP’s June 26, 2012
forfeiture decision, the Board has no jurisdiction to review the report on this appeal.
Appellant argues that OWCP did not thoroughly examine the evidence or the totality of
the circumstances before declaring forfeiture, but the operative facts are clear. During the period
at issue, she performed, by her own admission, activities as a legal assistant, administrative
assistant, resident agent, chief executive officer, president and board member. Appellant’s
answers to the Form EN1032 questions about self-employment, involvement in any business
enterprise and volunteer work were not accurate: they were a knowing nondisclosure of her
work activities. She knew that she had been involved in some business enterprise and had
performed some volunteer work that she deliberately failed to disclose on the forms. With the
exception of the May 29, 2008 Form EN1032, both the evidence and the circumstances support
OWCP’s finding of forfeiture.
Medical evidence on appellant’s ability to perform basic work activities is immaterial to
whether she knowingly omitted her involvement in any business enterprise and her performance
of any volunteer work on the Forms EN1032. Again, it does not matter whether she had any

15

Because the previous and subsequent EN1032 forms overlap the period covered by the May 29, 2008 report,
appellant did forfeit some compensation at the beginning and end of that period, leaving her approximately eight
months during which she remained entitled to compensation.
16

20 C.F.R. § 501.2(c)(1).

6

earnings or other forms of remuneration from her activities.17 The penalty is imposed for
nondisclosure, for not keeping OWCP informed about activities that might, or might not, affect
her compensation for wage loss.
LEGAL PRECEDENT -- ISSUE 2
Where the right to compensation is forfeited, OWCP shall recover any compensation
already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129 and other relevant statutes.18
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments she receives
from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in regard to receipt of her benefits. Such care includes reporting events which may affect
entitlement to or the amount of benefits. A recipient who has done any of the following will be
found at fault with respect to creating an overpayment:
“(1) Made an incorrect statement as to a material fact which she knew or should
have known to be incorrect; or
“(2) Failed to provide information which she knew or should have known to be
material; or
“(3) Accepted a payment which the recipient knew or should have known to be
incorrect. (This provision applied only to the overpaid individual.)”19
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surroundings the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.20
ANALYSIS -- ISSUE 2
As appellant forfeited her right to compensation, fact of overpayment is established. The
amount of the overpayment, however, warrants further development because she did not forfeit
17

In the case of Daniel A. Mashe, 50 ECAB 419 (1999), the Board found that OWCP improperly determined that
the claimant forfeited his right to compensation for the period September 10, 1990 through June 27, 1992. At that
time, forfeiture required knowingly omitting earnings or other forms of remuneration. The claimant had clearly
engaged in work activities, but without the receipt of earnings or other remuneration for his efforts, the record
provided no basis to invoke the penalty provision of Section 8106(b)(2). Since that time, however, the law has
changed. The scope of what must be disclosed has broadened. A claimant is now required to report, as appellant
was required to report here, any activity indicating an ability to work, such as any involvement in a business
enterprise or the performance of any volunteer work, regardless of whether the claimant received any wages or other
forms of remuneration or financial benefit.
18

20 C.F.R. § 10.529(b).

19

Id. at § 10.433(a).

20

Id. at § 10.433(b).

7

her right to all compensation from February 19, 2008 to May 18, 2011. Appellant remains
entitled to some compensation during the period covered by her May 29, 2008 Form EN1032.
The Board will set aside OWCP’s August 16, 2012 decision on the issue of amount of
overpayment.
In finding appellant at fault in creating the overpayment, OWCP implicated all three
grounds: making incorrect statements, failing to report and accepting incorrect payments. The
Board finds that the first grounds are the most appropriate. On the relevant EN1032 forms,
appellant made an incorrect statement as to a material fact which she knew or should have known
to be incorrect. She denied any involvement in any business enterprise and disclosed none of her
volunteer work. This information was material to the proper payment of appellant’s
compensation, and she should have known that her answers were incorrect. Her answers left
OWCP with the impression that she at no time worked as a legal assistant for a law office, that
she never served as an administrative assistant for the Urban League, that she was never a
founder and CEO of a disability resource center, and was never appointed to serve as a board
member of a university board of visitors. Rather than disclose these activities so that OWCP
could determine whether they affected her compensation, she kept the information to herself, as
she indicated in her affidavit, knowing that this information might affect her compensation.
Appellant had an obligation to show good faith and exercise a high degree of care in
regard to receipt of her benefits. Such care included reporting events which may affect
entitlement to or the amount of benefits. The Board will affirm OWCP’s August 16, 2012
decision on the issue fault. Appellant is not eligible for consideration of waiver.
LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information will be used to
determine the repayment schedule, if necessary.21
Whenever an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to minimize any
resulting hardship upon such individual.22
ANALYSIS -- ISSUE 3
OWCP was aware of the probable extent of future compensation payments and the rate of
appellant’s compensation. Appellant completed an overpayment recovery questionnaire showing
her financial circumstances. The Board therefore finds that OWCP gave due regard to relevant
circumstances when it found that the overpayment should be recovered at a minimal rate of
$25.00 every four weeks so as to minimize any resulting hardship. The Board will affirm
OWCP’s August 16, 2012 decision on the issue of rate of recovery.
21

Id. at § 10.438(a).

22

Id. at § 10.441(a).

8

CONCLUSION
The Board finds that appellant forfeited her right to compensation for the period
March 12, 2000 to June 10, 2007 and from February 19, 2008 to May 18, 2011. Although the
amount of the resulting overpayment requires further development, the Board finds that she was
at fault in its creation. The Board also finds that OWCP properly set the rate of recovery from
continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is modified to find that appellant did not forfeit her right to all
compensation for the period covered by her May 29, 2008 Form EN1032. The June 26, 2012
decision is otherwise affirmed. The August 16, 2012 decision of OWCP is set aside on the issue
of amount of overpayment and is otherwise affirmed.
Issued: June 13, 2013
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 11-157
Issued: September 8, 2011

Oral Argument June 22, 2011

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

JURISDICTION
On October 26, 2010 appellant, through his representative, filed a timely appeal of a
September 24, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to modify the October 11,
1995 wage-earning capacity determination.
FACTUAL HISTORY
On January 30, 1990 appellant, then a 40-year-old letter carrier, filed a traumatic injury
claim alleging that he injured his back and neck falling from a stool on that date. OWCP
accepted his claim for cervical and low back strain on February 12, 1990. He returned to
1

5 U.S.C. § 8101 et seq.

light-duty work on February 24, 1990 and full duty on June 10, 1990. Appellant filed a
recurrence of disability claim on September 12, 1990 alleging that he sustained total disability on
September 10, 1990.
OWCP accepted this claim on March 21, 1991 and authorized
compensation for intermittent periods of total disability. Appellant continued to perform
light-duty work.
On March 20, 1995 appellant accepted a light-duty position casing and splitting a route
carrying mail for one hour. He also answered the telephone, worked mail and performed other
office duties as assigned by his supervisor within his restrictions.
Appellant’s attending physician, Dr. J. Tashof Bernton, Board-certified in physical
medicine, completed duty status reports on May 1 and 22, 1995. He decreased appellant’s
restrictions on May 22, 1995 to find that appellant could lift up to 55 pounds for four hours a
day, sit for six hours, standing for eight hours and walk for eight hours. Appellant was also
capable of climbing and kneeling for six hours and bending, stooping, twisting, pushing and
pulling for eight hours each. He could drive a motor vehicle for six hours. Dr. Bernton stated
that he hoped that appellant could progress to full duty.
The employing establishment rescinded the March 20, 1995 position and offered
appellant a light-duty position on May 9, 1995 effective May 15, 1995 as a modified letter
carrier. This position required him to case mail for four hours, carry mail for one hour as well as
answering the telephone, working computerized forwarding system (CFS) mail and other office
duties as assigned by his supervisor. Appellant was required to lift up to 50 pounds for one hour,
stand for four hours, walk for two hours, stoop for one hour, bend for one hour and sit for six
hours. He also operated a motor vehicle, twisted, carried, pushed and pulled for one hour and
reached above the shoulder carrying for four hours. Appellant accepted this position on
June 8, 1995.
Dr. Bernton indicated on June 26, 1995 that appellant experienced an increase in back
pain and diagnosed “flare-up of sacroiliac strain and some cervical strain.” On July 3, 1995
appellant accepted a light-duty position casing mail and carrying mail for one hour. Computer
entry and other duties assigned by a supervisor within his restrictions. Appellant was to lift up to
50 pounds three hours a day, sit for six hours, operate a vehicle for one hour and stand, walk,
stoop, bend, twist, carry, push, pull and reach above the shoulders for eight hours a day.
Dr. Bernton decreased appellant’s work restrictions to full duty on August 14, 1995 on a
provisional basis indicating that he would evaluate appellant in two weeks. He noted that there
was a new route available that appellant wanted to try. Dr. Bernton noted that he was not certain
that appellant could tolerate full duty. On August 21, 1995 appellant accepted a limited-duty
position casing and carrying route 3934 with no restrictions.
In a report dated August 31, 1995, Dr. Bernton stated that the new full-duty route resulted
in significant exacerbation of appellant’s back pain with marked discomfort in the lower lumbar
region and radiation into the gluteal area. He increased appellant’s work restrictions, limiting
lifting to 55 pounds four hours a day. Dr. Bernton also limited standing and walking to four
hours a day. He indicated that appellant could kneel, bend, stoop, twist, pull and push for one

2

hour per day each. Appellant was to drive a motor vehicle for one hour a day. Dr. Bernton
confirmed these restrictions on September 19 and December 12, 1995.
In a letter dated September 14, 1995, the employing establishment requested that OWCP
provide a wage-earning capacity determination as appellant had worked in his light-duty position
since May 15, 1995.
By decision dated October 11, 1995, OWCP issued a wage-earning capacity decision
finding that appellant was reemployed as a modified letter carrier on May 15, 1995 and that this
position fairly and reasonably represented his wage-earning capacity.
Appellant filed a notice of recurrence of disability on November 10, 2009 alleging that
the employing establishment withdrew his limited-duty position on November 6, 2009. He filed
a claim for compensation requesting wage-loss compensation beginning November 6 through 20,
2009 indicating that the employing establishment provided him with four hours of work a day.
In a letter dated December 9, 2009, OWCP informed appellant that in order to receive
compensation he was to submit evidence to establish modification of the October 11, 1995 wageearning capacity determination. Appellant submitted claims for compensation through
February 26, 2010. He responded to OWCP’s request and contended that the original wageearning capacity determination was in error. Appellant submitted his current position description
working four hours a day. The employing establishment offered him a limited-duty position on
April 30, 2009 working eight hours a day which he refused.
By decision dated March 9, 2010, OWCP denied modification of the 1995 wage-earning
capacity, finding that appellant had not submitted sufficient evidence in support of his allegation
that the original wage-earning determination was in error.
Appellant requested an oral hearing on March 9, 2010. At the oral hearing on July 15,
2010, counsel argued that the original wage-earning capacity decision was in error as appellant
did not work in the May 15, 1995 position for 60 days, the position was not permanent and
because the position was sheltered and makeshift work.
On September 24, 2010 an OWCP hearing representative denied modification of the
October 1995 wage-earning capacity, finding that appellant returned to work in a light-duty
position in May 1995 and continued to work in this position.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to

2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).

3

earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4 OWCP’s
procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given
position for more than 60 days.5
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.6 OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of
wage-earning capacity.7 The burden of proof is on the party attempting to show a modification
of the wage-earning capacity determination.8
When a formal loss of wage-earning capacity determination is in place and light duty is
withdrawn, the proper standard of review is not whether appellant sustained a recurrence of
disability, but whether OWCP should modify its decision according to the established criteria for
modifying a formal loss of wage-earning capacity determination.9 OWCP’s procedures provide
that when the employing establishment has withdrawn a light-duty assignment, which
accommodated the claimant’s work restrictions and a formal wage-earning capacity decision has
been issued, the decision will remain in place, unless one of the three accepted reasons for
modification applies.10
ANALYSIS
Appellant returned to work limited duty shortly after his January 30, 1990 employment
injury. He accepted a new light-duty position on March 10, 1995. The employing establishment
rescinded the March 10, 1995 position and offered appellant a light-duty position on May 9,
3

Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975); K.R., id.

4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-earning Capacity,
Chapter 2.814.7(c) (December 1993). E.C., 59 ECAB 397 (2008).
6

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

7

Federal (FECA) Procedure Manual, supra note 5, Chapter 2.814.9(a) (December 1995). See also FECA
Transmittal 10-01 (issued October 5, 2009).
8

Selden H. Swartz, 55 ECAB 272, 278 (2004).

9

K.R., supra note 2; K.R., Docket No. 09-28 (issued September 16, 2009); Debbie A. Titus, Docket No. 05-360
(issued June 3, 2005).
10

Federal (FECA) Procedure Manual, supra note 5, Recurrences, Chapter 2.1500.7(A)(5) (October 2005). See
also FECA Transmittal 10-01 (issued October 5, 2009).

4

1995 effective May 15, 1995, which he accepted on June 8, 1995. This position required him to
work eight hours a day casing mail for four hours, carrying mail for one hour as well as
answering the telephone, working CFS mail and other office duties as assigned by his supervisor.
The physical requirements were lifting up to 50 pounds for one hour, standing for four hours,
walking for two hours, stooping for one hour, bending for one hour and sitting for six hours.
Appellant also operated a motor vehicle, twisted, carried, pushed and pulled for one hour and
reached above the shoulder carrying for four hours.
The employing establishment offered appellant a new light-duty position working eight
hours a day which he accepted on July 3, 1995. This position required him to case mail and
carry mail for one hour as well as performing computer entry and other duties assigned by a
supervisor within his restrictions. The physical requirements were lifting up to 50 pounds three
hours a day, sitting for six hours, operating a vehicle for one hour and standing, walking,
stooping, bending, twisting, carrying, pushing, pulling and reaching above the shoulders for eight
hours a day.
On August 21, 1995 appellant accepted another, position casing and carrying route 3934
with no restrictions. His physician, Dr. Bernton, released appellant to full duty on August 14,
1995 on a provisional basis. He stated that appellant wished to attempt a new route, but that he
was not certain that appellant could tolerate full duty. Dr. Bernton completed a report on
August 31, 1995 and stated that appellant was unable to tolerate full duty due to significant
exacerbation of appellant’s back pain. He listed appellant’s work restrictions limiting lifting to
55 pounds four hours a day, standing and walking to four hours a day and kneeling, bending,
stooping, twisting, pulling and pushing to one hour. Dr. Bernton repeated these restrictions on
September 19 and December 12, 1995.
By decision dated October 11, 1995, OWCP issued a wage-earning capacity decision
finding that appellant was reemployed as a modified letter carrier based on the May 15, 1995
limited duty. It found that his earnings in this position fairly and reasonably represented his
wage-earning capacity.
The Board finds that the October 11, 1995 wage-earning capacity determination was in
error. OWCP failed to follow its procedures in determining that appellant had worked in the
position for at least 60 days. The record establishes that he accepted the May 15, 1995 position
on June 8, 1995. The employing establishment subsequently provided appellant with different
positions on July 3 and August 21, 1995 with varying duties and physical requirements. After
his return to full duty in August 1995, Dr. Bernton increased appellant’s work restrictions
advising that he was not capable of performing the August 21, 1995 position.
There is no evidence in the record supporting that appellant worked in any position
offered by the employing establishment after May 9, 1995 for more than 60 days prior to the
October 11, 1995 OWCP decision. He did not begin the May 15, 1995 position until June 8,
1995 and the employing establishment provided him with a different light-duty position on
July 3, 1995, less than 60 days later. Appellant then attempted a return to full-duty work on
August 21, 1995. Dr. Bernton found that he could not perform full duty on August 31, 1995 less
than two weeks after accepting the full-duty position. Given the variety of positions offered and
the limited time worked in each position, the Board finds that the May 15, 1995 position did not

5

fairly and reasonably represented appellant’s wage-earning capacity. Appellant had not
performed this or other positions for a reasonable period of time to establish that the position was
within his work capacity.
CONCLUSION
The Board finds that appellant has met his burden of proof to modify the October 11,
1995 wage-earning capacity decision on the grounds that the original decision was in error as he
had not worked in the May 1995 or any subsequent position for 60 days before OWCP issued the
October 11, 1995 wage-earning capacity decision.
ORDER
IT IS HEREBY ORDERED THAT September 24, 2010 decision of Office of Workers’
Compensation Programs is reversed.
Issued: September 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6