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

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

Docket No. 16-1107
Issued: February 23, 2017

Case Submitted on the Record

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

JURISDICTION
On April 29, 2016 appellant filed a timely appeal from a November 5, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated August 7, 2014, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument. By order dated November 4, 2016, the Board denied her
request as her arguments could be adequately addressed in a decision based on a review of the case record. Order
Denying Request for Oral Argument, Docket No. 16-1107 (issued November 4, 2016).

FACTUAL HISTORY
On January 4, 2013 appellant, then a 37-year-old clerk, filed an occupational disease,
(Form CA-2) alleging that she developed a superior labrum anterior and posterior (SLAP) tear as
a result of throwing parcels over a prolonged period of time. She stopped work on
December 27, 2012.
Appellant was treated by Dr. Marc E. Rankin, a Board-certified orthopedist, on
January 7, 2013, who noted that appellant was totally disabled from December 19, 2012 to
January 7, 2013.
By letter dated January 29, 2013, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim. It noted that the evidence submitted was
insufficient to support that she was injured while performing work duties. OWCP provided a
development questionnaire and asked that she describe in detail all work activities that
contributed to her condition and describe how often she performed such activities. It also
requested the employing establishment provide comments from a knowledgeable supervisor of
the accuracy of all statements from the employee, describe the tasks the employee was to
perform and the frequency, the precautions taken to minimize the effects of the activities and a
job description. Appellant did not respond to the development questionnaire.
Appellant underwent physical therapy from August 9 to November 16, 2012. She
submitted a right shoulder magnetic resonance imaging (MRI) scan dated December 24, 2012
which revealed mild acromioclavicular arthropathic changes, no rotator cuff tendinopathy, and
no labral tear.
Appellant was treated by Dr. Rankin on August 8, 2012 for right shoulder pain which
developed while working. Dr. Rankin diagnosed rotator cuff sprain and strain and lumbar sprain
and strain and recommended physical therapy. In reports dated January 7 and February 14,
2013, he noted that appellant presented with right shoulder pain for 15 months which was
affected by overhead activities at work. Dr. Rankin diagnosed SLAP lesion and recommended
right shoulder arthroscopy. Appellant submitted a February 6, 2013 certificate of health care
provider from Dr. Rankin who noted that appellant was scheduled for right shoulder surgery and
would need six to eight weeks of rehabilitation to regain functional mobility. Dr. Rankin
indicated that appellant would be unable to reach, lift, carry, push or pull with the right arm. On
February 6, 2013 he performed right shoulder arthroscopy with SLAP lesion repair. Dr. Rankin
diagnosed rotator cuff capsule sprain and strain, status post right shoulder arthroscopy, and stable
postoperative visit.
By decision dated April 18, 2013, OWCP denied appellant’s claim because the evidence
did not support that the injury and or events occurred as alleged.
On April 17, 2014 appellant requested reconsideration. In an undated statement, she
indicated that she believed her activities at work caused the onset of her right shoulder pain.
Appellant described her work as a clerk and indicated that her duties included moving pallets of
parcels, bundled flats, buckets of flats and all-purpose containers filled with parcels off the dock,
lifting 400 to 550 parcels per day which weighed 3 ounces to 30 pounds, lifting buckets of mail,

2

flats, and parcels to be distributed, sorting mail on a pie cart, stacking bundles of flats above her
head, and casing letters and flats.
Appellant submitted an April 10, 2014 report from Dr. Allan H. Macht, a Board-certified
general surgeon, who diagnosed status postoperative repair of the horn of the labrum of the right
shoulder. She reported developing right shoulder pain over a seven-year period while working
as a clerk where she threw hundreds of parcels a day into bins and sorted bundled mail above her
head. Dr. Macht opined that appellant sustained a labral tear of her right shoulder due to her
work activity of pushing and lifting packages above her head and placing them in slots and
throwing packages.
In a decision dated August 7, 2014, OWCP denied modification finding that the medical
evidence was insufficient to establish causal relationship.
In a statement dated February 27, 2015, appellant noted popping and clicking of her right
shoulder while throwing parcels at work and lifting her right arm above her shoulder. She
indicated that she underwent right shoulder surgery which was aggravated by throwing parcels.
In an appeal request form dated August 5, 2015 and received on August 11, 2015
appellant requested reconsideration.
Appellant submitted an undated report from Dr. Rankin who first treated appellant on
January 7, 2013 for right shoulder pain. She reported that on March 20, 2012 while repetitively
reaching and throwing parcels with her right arm she experienced a tearing sensation in her right
shoulder. Since this time appellant reported that her right shoulder was aggravated by any
reaching or overhead work with her right arm. Dr. Rankin diagnosed tear of the anterior labrum
confirmed by MRI scan and performed a right shoulder arthroscopic anterior labral repair on
February 6, 2013. He noted that appellant underwent physical therapy and returned to work on
July 17, 2013. Dr. Rankin opined to a reasonable degree of medical certainty that appellant’s
right shoulder pain was caused by the torn labrum sustained at work on March 20, 2012 which
led to surgical repair. He indicated that appellant did not have right shoulder pain prior to the
activity on that workday.
Appellant submitted a March 4, 2015 duty status report (Form CA-17) from
Dr. Michael V. Williams, a Board-certified family practitioner, who noted findings of shoulder
and trapezius pain and diagnosed shoulder sprain. Dr. Williams noted that appellant could return
to work full time with restrictions. In a March 4, 2015 work activity status report, he diagnosed
shoulder and upper arm strain and returned appellant to work full-time light duty on
March 4, 2015.
On March 10, 2015 appellant was treated by a physician assistant who diagnosed
shoulder and upper arm strain and returned appellant to work full time with restrictions on
March 10, 2015.
By decision dated November 5, 2015, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.

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LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.3 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.4 The Board has found that imposition of this oneyear filing limitation does not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP must reopen the case for merit review.6
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,7 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.8 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. As noted, an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.10 As appellant’s request
for reconsideration was not received by OWCP until August 11, 2015, more than one year after

3

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

4

20 C.F.R. § 10.607(a).

5

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
7

Dean D. Beets, 43 ECAB 1153 (1992).

8

Leona N. Travis, 43 ECAB 227 (1991).

9

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

10

20 C.F.R. § 10.607(a).

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issuance of the August 7, 2014 merit decision by OWCP, it was untimely filed. Consequently,
she must demonstrate clear evidence of error by OWCP denying her claim for compensation.
The Board finds that appellant failed to demonstrate clear evidence of error on the part of
OWCP. In her reconsideration request, appellant disagreed with OWCP’s decision denying her
claim for compensation. In her February 27, 2015 statement, she noted popping and clicking of
her right shoulder while throwing parcels at work and lifting her right arm above her shoulder.
Appellant indicated that her right shoulder was aggravated by throwing parcels and that she had
to undergo surgery. The Board notes that while appellant addressed her disagreement with
OWCP’s decision denying her claim for an occupational disease, her disagreement does not
demonstrate clear evidence of error as it does not raise a substantial question as to the correctness
of OWCP’s most recent merit decision which denied appellant’s claim for an occupational
disease because of insufficient medical evidence addressing causal relationship.
Appellant also submitted medical evidence. Dr. Williams provided March 4, 2015
reports but he did not address causal relationship. Dr. Rankin, in an undated report, noted
appellant’s work duties and opined to a reasonable degree of medical certainty that appellant’s
right shoulder pain was caused by the torn labrum sustained at work on March 20, 2012 which
led to surgical repair. While he provided support for causal relationship, his report did not
demonstrate clear evidence of error. The Board notes that clear evidence of error is intended to
represent a difficult standard. Evidence such as a detailed, well-rationalized medical report
which, if submitted before the denial was issued, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error.11
Appellant also submitted evidence from a physician assistant. However, evidence from a
physician assistant does not constitute competent medical evidence under FECA.12 Appellant
has not otherwise explained how this evidence raises a substantial question as to the correctness
of OWCP’s decision.
For these reasons, the Board finds that appellant has not demonstrated clear evidence of
error by OWCP in its August 7, 2014 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

11

D.G., 59 ECAB 455 (2008).

12

See V.C., Docket No. 16-0642 (issued April 19, 2016); 5 U.S.C. § 8101(2).

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
San Diego, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1836
Issued: January 12, 2018

Case Submitted on the Record

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

JURISDICTION
On August 29, 2017 appellant, through counsel, filed a timely appeal from an August 1,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated May 20, 2016 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 4, 2015 appellant, then a 55-year-old revenue agent, filed a traumatic injury
claim (Form CA-1) alleging that she experienced severe depression, high blood pressure, and
anxiety and panic on April 2, 2015. She attributed her condition to a manager’s abuse and
retaliation after she experienced a left shoulder injury and the failure of the employing
establishment to provide reasonable accommodation for her difficulty breathing. Appellant
stopped work on April 12, 2015.
S.B., a supervisor, related that appellant had requested that her workload review be
rescheduled so that she could see a nurse due to stress. She told appellant that if she remained at
work the review would proceed, noting that she had already granted appellant’s request for prior
postponements. S.B. advised that the employing establishment accommodated appellant’s
shoulder injury.3
In a statement dated April 24, 2015, A.N., a coworker, related that on April 2, 2015
appellant had “a meltdown from all the stress that [S.B.] had put [her] under.”4 She
accompanied appellant to the union office about a scheduled review, but she was too upset to
articulate what was happening. A.N. drove her to see a physician.
By decision dated June 19, 2015, OWCP denied appellant’s emotional condition claim.
It found that she had not provided a detailed statement identifying the work factors to which she
attributed her condition or supported her contentions with corroborating evidence, and thus had
failed to factually establish her claim.5
Appellant, on July 7, 2015, requested a telephone hearing before an OWCP hearing
representative. During the telephone hearing, held on March 11, 2016, counsel asserted that
management retaliated against her after a shoulder injury. Appellant described actions by her
supervisor that she believed were inappropriate, including lowering her performance evaluation
and denying her request to telework due to episodes of vertigo. She asserted that she had filed a
grievance which was resolved in her favor.6

3
In an undated statement received June 9, 2015, the employing establishment indicated that it was unaware that
appellant had any difficulty breathing.
4

In a statement dated April 24, 2015, V.H., a coworker, related that appellant was crying and upset on
April 2, 2015. She advised that she became unwell after any contact with her supervisor, and that it had begun after
her shoulder injury in July 2012.
5

OWCP also noted that appellant had not submitted any medical evidence from a physician supporting her claim.

6

The employing establishment submitted a statement on April 11, 2016 commenting on the hearing.

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In a decision dated May 20, 2016, OWCP’s hearing representative affirmed the June 19,
2015 decision. She found that appellant had not established any compensable factors of
employment.
On May 4, 2017 appellant, through counsel, requested reconsideration. Counsel
submitted the April 24, 2015 statement from A.N. in support of the request, which he maintained
OWCP had not previously considered.
By decision dated August 1, 2017, OWCP denied appellant’s request for reconsideration
as she had not raised an argument or submitted evidence sufficient to warrant reopening her case
for further review of the merits under section 8128(a). It noted that it had previously considered
the April 24, 2015 witness statement from A.N.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.8 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received within one year of the
date of that decision.9 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review on the merits.10
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.11 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.12
ANALYSIS
OWCP denied appellant’s emotional condition by decision dated May 20, 2016. On
May 4, 2017 appellant timely requested reconsideration. The Board finds that OWCP properly
denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

7
5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

12
P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).

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Appellant did not to show that OWCP erroneously applied or interpreted a specific point
of law, nor did she advance a relevant legal argument not previously considered by OWCP.13
Additionally, she has not submitted relevant and pertinent new evidence not previously
considered by OWCP. The underlying issue in this case is whether appellant has established a
compensable employment factor. In support of her request for reconsideration, appellant
resubmitted an April 24, 2015 witness statement from A.N. Evidence which is duplicative,
cumulative, or repetitive in nature is insufficient to warrant reopening a claim for merit review.14
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by OWCP, or submit pertinent
new and relevant evidence not previously considered. The Board accordingly finds that she has
not met the requirements of 20 C.F.R. § 10.606(b)(3). Accordingly, pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

13

See J.F., Docket No. 16-1233 (issued November 23, 2016).

14

See D.G., Docket No. 17-1251 (issued October 23, 2017); Denis M. Dupor, 51 ECAB 482 (2000).

15

See D.G., id.

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ORDER
IT IS HEREBY ORDERED THAT the August 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 14-1145
Issued: September 26, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a December 17, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on June 9, 2013 in the performance of
duty.
FACTUAL HISTORY
On June 12, 2013 appellant, then a 63-year-old logistics specialist, filed a traumatic
injury claim alleging that on June 9, 2013 he fainted, falling on his face and breaking his glasses.
1

5 U.S.C. § 8101 et seq.

He noted that he was dehydrated and taking medication for a cold at the time of the incident. On
the reverse side of the claim form, the employing establishment controverted the claim, stating
“The employee was injured on his day off. However, dehydration may have been a contributing
factor and may have been caused by a work[-]related activity.” Appellant stopped work on
June 10, 2013 and returned to work on June 12, 2013.
In a note dated June 10, 2013, Dr. David Ryan Fish, Board-certified in emergency
medicine, found that appellant could return to work on June 11, 2013.
By letter dated June 25, 2013, OWCP requested that appellant submit additional factual
and medical information in support of his claim, including a detailed report from his attending
physician addressing the relationship between a diagnosed condition and the alleged employment
incident.
In a statement dated July 24, 2013, appellant advised that on June 9, 2013 he was getting
ready for the workweek. He related that he had a cold and stated, “After talking my
hypertension medicine and a across the counter cold remedy I went downstairs of the hotel to
play one more game on my iPhone. After finishing the game the next thing I remember is I was
on the ground.” A coworker helped appellant to his room. The employing establishment
instructed the coworker to drive him to the emergency room the next morning.
By decision dated August 13, 2013, OWCP denied appellant’s claim on the grounds that
he did not establish fact of injury. It found that he failed to submit medical evidence establishing
that he sustained an injury causally related to the accepted June 9, 2013 employment incident.
On August 16, 2013 appellant submitted reports of his treatment on June 10, 2013 at the
emergency room. Dr. Fish noted that appellant related a history of sitting down playing a game
on his telephone. Appellant was “going to stand up [but] the next thing he knows he was on the
ground and struck his face.” Dr. Fish noted that appellant took all of his blood pressure
medications prior to the fall and also had an upper respiratory infection. He found “some
bruising to his face” on examination. Dr. Fish referred appellant for diagnostic testing. In a
discharge note, he diagnosed syncope.
On September 16, 2013 appellant requested reconsideration. He related that it took him
longer than expected to obtain the reports from the emergency room.
By decision dated December 17, 2013, OWCP denied modification of its
August 13, 2013 decision. It determined that appellant did not submit medical evidence
establishing a diagnosed condition as a result of his employment.
On appeal, appellant relates that he was on temporary duty at the time of the June 9, 2013
incident and on call 24 hours a day. He notes that the employing establishment instructed him to
seek treatment at the emergency room on June 10, 2013 and informed him that it would pay his
medical expenses.

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LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.6 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.7
ANALYSIS
Appellant alleged that he sustained an injury on June 9, 2013 when he fainted and fell
onto his face, breaking his glass. OWCP accepted that he established the occurrence of the
June 9, 2013 incident. The issue, consequently, is whether the medical evidence establishes that
appellant sustained an injury as a result of this incident.
The Board finds that appellant has not submitted sufficient medical evidence to establish
that he sustained an employment injury on June 9, 2013. On June 10, 2013 Dr. Fish treated
appellant at the emergency room. He discussed appellant’s history of playing a game on his
telephone the previous evening after taking medication for hypertension and a cold. Appellant
began to stand up but fainted to the ground and hit his face. Dr. Fish noted that appellant had
some bruising on his face. In a discharge note, he diagnosed syncope. Dr. Fish did not,
however, specifically address the cause of appellant’s condition. In order to establish a
compensable work injury, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting causal relationship.8 The opinion of
2

5 U.S.C. § 8101 et seq.

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Id.

8

See John M. Tornello, 35 ECAB 234 (1983).

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Dr. Fish must be of reasonable medical certainty and explain the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
As Dr. Fish did not provide any causation finding, his report is of diminished probative value.9
Appellant has not submitted rationalized medical evidence from a physician establishing
a diagnosed medical condition causally related to the accepted June 9, 2013 employment
incident. OWCP advised him of the medical evidence required to establish his claim; however,
he failed to submit such evidence.
On appeal, appellant relates that he was on deployment at the time of the June 9, 2013
incident and on call 24 hours a day. OWCP, however, did not deny his claim on the grounds that
he was not in the performance of duty on June 9, 2013 but instead found that the medical
evidence was insufficient to establish that he sustained an employment injury.
Appellant further asserts that the employing establishment advised him to go to the
emergency room on June 10, 2013 and notified him that it would pay his medical expenses. In
denying appellant’s claim for a traumatic injury, OWCP did not consider whether emergency
circumstances or unusual circumstances were present or whether this was a situation in which
reimbursement of medical expenses was appropriate.10 It is required to exercise its discretion to
determine whether medical care has been authorized, or whether unauthorized medical care
involved emergency or unusual circumstances and is therefore reimbursable regardless of
whether the underlying claim for benefits has been accepted or denied.11 On return of the record,
OWCP should adjudicate the issue of reimbursement of medical expenses.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
June 9, 2013 in the performance of duty

9

See Conard Hightower, 54 ECAB 796 (2003).

10

See P.S., Docket No. 10-1560 (issued June 23, 2011).

11

See Michael L. Malone, 46 ECAB 957 (1995).

12

See A.F., Docket No. 13-520 (issued May 17, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the December 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Hartford, CT, Employer
__________________________________________

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

Docket No. 20-1517
Issued: November 8, 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 August 14, 2020 appellant filed a timely appeal from an August 7, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition causally related to the accepted compensable employment factor.
FACTUAL HISTORY
On December 11, 2019 appellant, then a 36-year-old management assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 25, 2019 he experienced heavy
1

5 U.S.C. § 8101 et seq.

breathing and shortness of breath as a result of harassment and retaliation by his supervisor, E.P.,
and a coworker, D.M., over the past one year and 11 months. He claimed that he sustained a panic
attack on the date of injury after being threatened by E.P. with a November 22, 2019 notice of
proposed five-day suspension from work. Appellant noted that he was rushed and admitted to a
hospital on November 25, 2019. On the reverse side of the claim form, the employing
establishment indicated that he stopped work on the date of injury and returned on
December 3, 2019. It controverted appellant’s claim, alleging that he was not subjected to any
threats, harassment, or retaliation. The employing establishment explained that the proposed
discipline was based on his unprofessional conduct which involved unfounded claims he made
against a coworker.
In support of his claim, appellant submitted a November 27, 2019 letter from Dr. Gladys
Hammond, an attending licensed clinical/counseling psychologist. Dr. Hammond noted that
appellant had been under her professional care since 2014. She provided a history of injury that
on November 25, 2019 appellant was taken to a hospital for stress resulting from retaliation by his
supervisor and a coworker. Based on her examination and evaluation, Dr. Hammond advised that
he was fit for duty and indicated that appellant could return to work on December 3, 2019. She
recommended that he telework three days per week and get a new supervisor.
Federal occupational health forms dated November 25 and 28, 2019 from a registered nurse
with an illegible signature related appellant’s chief complaints of chest pain, shortness of breath,
anxiety, and depression. The nurse noted examination findings and an assessment of acute pain
related to/as evidenced by anxiety/depression and aggressive chest pain.
A work/school note dated November 25, 2019 by Dr. Philippa N. Soskin, a Board-certified
emergency medicine physician, certified that appellant was treated in the emergency department
on that date. In patient discharge instructions of even date, Dr. Soskin diagnosed anxiety.
OWCP, in a development letter dated December 20, 2019, informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
On December 26, 2019 appellant responded to OWCP’s development questionnaire. He
indicated that he had a life-long mental disability with triggers of sweating, trembling, racing
heartbeats, and shortness of breath. Appellant again claimed that he sustained a work-related
traumatic injury.
Appellant submitted additional medical evidence from Dr. Hammond. In a January 25,
2018 letter, Dr. Hammond noted her diagnosis of post-traumatic stress disorder (PTSD). She
indicated that appellant’s PTSD symptoms resulted from the violent death of appellant’s father.
Dr. Hammond indicated that his hostile biased work situation causes the return of his PTSD
symptoms with bouts of depression for which he took medication. She opined that appellant’s
work environment caused him severe anxiety. Dr. Hammond further advised that he could
perform all of his required duties, but recommended that he be given his own office when at work

2

and continue to telework three days per week. She noted that appellant’s anxiety symptoms were
raised when he was in crowded areas of public transportation.
In a letter dated July 16, 2018, Dr. Hammond indicated that appellant was seen for a
follow-up evaluation of his PTSD.
E-mails dated December 23, 26, 2019 between the employing establishment and appellant,
and a summary of a December 12, 2019 meeting addressed appellant’s allegation of harassment
and retaliation by the staff and management and reasonable accommodation request to telework
three days per week and be assigned to a new supervisor.
A November 25, 2019 D.C. Fire and Emergency Medical Service (EMS) Department
conversion record indicated that, on that date, appellant was transported to a hospital for the
treatment of his insomnia and emotional stress.
By decision dated January 29, 2020, OWCP found that the evidence of record was
sufficient to establish the November 25, 2019 incident as a compensable factor of employment,
but denied appellant’s claim because the medical evidence was insufficient to establish a diagnosed
medical condition causally related to the accepted compensable work factor.
On February 4, 2020 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. He submitted a January 16, 2020 letter in which
Dr. Hammond noted that appellant was treated at an Emergency Clinic on January 10, 2020 due
to serious, stressful work conditions. Dr. Hammond again reported that his stress was due to
retaliation by a supervisor and a coworker. She indicated that appellant was treated with
medication and allowed to return home on the day of treatment. Dr. Hammond advised that her
examination and evaluation revealed that he was fit for duty and that he could return to work on
January 21, 2020. She concluded that appellant would remain under her care until the stress from
his five-day suspension from work was totally relieved.
Appellant also submitted additional hospital records indicating his treatment, diagnosis of
anxiety, and discharge on November 25, 2019.
By decision dated April 10, 2020, an OWCP hearing representative set aside the
January 29, 2020 decision and remanded the case to OWCP for further adjudication of the factual
aspect of appellant’s claim, specifically identification of a compensable factor of employment.
The hearing representative instructed that, upon return of the case record, OWCP should make
findings of fact regarding which working conditions are deemed compensable factors of
employment.
In a development letter dated April 15, 2020, OWCP requested that appellant provide a
detailed description of the workplace activities that led to his claimed traumatic injury.
In an undated letter, appellant responded to OWCP’s development letter. He alleged that
he had to call the employing establishment police on D.M. because she threatened him with
physical harm. Appellant further alleged that he was sexually harassed by T.B.

3

Appellant submitted the November 22, 2019 notice of proposed five-day suspension issued
by the employing establishment. The employing establishment noted the proposed suspension was
based on appellant’s unprofessional conduct in the workplace. It indicated that on November 13,
2019 he became loud and unprofessional when D.M. tried to give him feedback on a work product.
Appellant told her that he did not want to hear anymore. As D.M. left his work area, he only heard
her say “next time” and not the rest of her sentence or know the meaning of her comment. The
employing establishment noted that at no time on the date of the incident or on the following day
appellant claim that he was threatened by D.M. On November 15, 2019 appellant contacted the
Federal Protective Service (FPS) claiming that he was threatened or felt threatened by D.M. FPS
investigated his complaint and determined that it was unfounded.
In his undated response to the proposed action, appellant acknowledged that he and D.M.
displayed somewhat unprofessional conduct during the November 13, 2019 incident, but requested
that the employing establishment take much lesser disciplinary action against him . He explained
that he believed his safety was at risk based on D.M.’s threatening remark, which led him to contact
FPS.
OWCP received an additional report dated November 25, 2019 by Dr. Soskin who
recounted a history that appellant suffered from anxiety and PTSD related to work stresses, noting
the issuance of a notice of possible suspension by the employing establishment because he called
the police after being threatened by a coworker. Dr. Soskin discussed examination findings and
reiterated her prior diagnosis of anxiety.
By decision dated August 7, 2020, OWCP found that the November 25, 2019 incident was
a compensable employment factor of appellant’s employment, but denied the claim finding that
the medical evidence of record was insufficient to establish a diagnosed medical condition causally
related to the accepted compensable employment factor.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, 2 that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 3
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment f actor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
2

Id.

3

O.R., Docket No. 20-0743 (issued January 28, 2021); M.H., Docket No. 19-0930 (issued June 17, 2020); Gary J.
Watling, 52 ECAB 357 (2001).

4

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 4
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence. 5 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to the accepted compensable employment factor.
Appellant has established as a compensable employment factor in that the employing
establishment issued him a November 22, 2019 notice of proposed five-day suspension from work.
The issue, consequently, is whether the medical evidence of record is sufficient to establish that
appellant sustained a diagnosed physical or emotional condition due to the accepted compensable
employment factor.
In support of his claim, appellant submitted medical evidence from Dr. Soskin. In a
November 25, 2019 report, Dr. Soskin diagnosed anxiety. She noted that appellant related that he
suffered from anxiety and PTSD related to work stresses, including the issuance of a notice of
proposed suspension by the employing establishment because he called the police on a coworker.
Dr. Soskin, however, merely repeated the history of injury as reported by appellant without
providing her own opinion of whether the condition was employment related. The mere recitation
of a patient’s history does not suffice for the purpose of establishing causal relationship between a
diagnosed condition and the employment incident. 7 In a work/school note and patient discharge
instructions of even date, Dr. Soskin continued to diagnose anxiety, but failed to provide a history
of injury or offer an opinion on causal relationship. 8 For these reasons, the Board finds that her
reports are insufficient to meet appellant’s burden of proof.

4

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
5

M.B., Docket No. 20-1160 (issued April 2, 2021); L.D., Docket No. 17-1581 (issued January 23, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
6

R.R., Docket No. 19-0743 (issued September 20, 2019).

7

See D.B., Docket No. 19-1543 (issued March 6, 2020); D.L., Docket No. 19-1053 (issued January 8, 2020).

8

See D.B., id.; B.P., Docket No. 19-1054 (issued November 14, 2019); I.C., Docket No. 19-0804 (issued
August 23, 2019).

5

Additionally, appellant submitted reports from Dr. Hammond. In a January 25, 2018
report, Dr. Hammond diagnosed PTSD and related that his PTSD symptoms were caused by the
violent death of his father. She attributed his current PTSD symptoms with bouts of depression to
his hostile/biased work environment, which caused him anxiety. Dr. Hammond addressed
appellant’s work capacity and recommended work accommodations. In reports dated
November 27, 2019 and January 16, 2020, she noted that appellant related that he suffered from
stress due to retaliation by his supervisor and an employee. Dr. Hammond reiterated her opinion
regarding his work capacity and work accommodations. In the January 16, 2020 report, she noted
that appellant would remain under her care until the stress from his five-day suspension from work
was totally relieved. Although Dr. Hammond noted appellant’s history, and diagnosed PTSD,
such generalized statements do not establish causal relationship.9 She did not specifically discuss
the accepted employment incident or provide a reasoned opinion explaining how the accepted
incident caused or aggravated a diagnosed condition. 10 Dr. Hammond merely repeated the history
of injury as reported by appellant without providing her own opinion of whether the condition was
employment related. As noted, the mere recitation of a patient’s history does not suffice for the
purpose of establishing causal relationship between a diagnosed conditio n and the employment
incident.11
Dr. Hammond’s remaining July 16, 2018 report noted that appellant was seen for a followup evaluation of his PTSD. She did not provide a history of injury or offer an opinion as to whether
appellant’s diagnosed condition was caused or aggravated by the November 25, 2019 employment
incident.12 For the stated reasons, the Board finds that Dr. Hammond’s reports are insufficient to
establish meet appellant’s burden of proof.
The November 25, 2019 D.C. Fire and EMS and hospital records noted appellant’s
diagnoses of insomnia, emotional stress, and anxiety, but failed to provide an opinion on whether
the diagnosed conditions were caused or aggravated by the accepted employment factor.13
Appellant also submitted federal occupational health forms dated November 25 and 28,
2019 signed solely by a registered nurse. Registered nurses, however, are not considered

9

See D.B., id.

10

Id.; M.G., Docket No. 19-1199 (issued December 19, 2019); C.M., Docket No. 18-1166 (issued July 9, 2019).

11

See supra note 8.

12

See supra note 9.

13

Id.

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“physician[s]” as defined under FECA and thus their reports do not constitute competent medical
opinion evidence. 14
As appellant has not submitted reasoned medical evidence explaining how his diagnosed
emotional condition was casually related to the accepted compensable employment factor, the
Board finds that he has not met his burden of proof.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to the accepted compensable employment factor.

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); D.S., Docket No. 19-1657 (issued July 20, 2020) (nurse practitioners and registered nurses are not considered
physicians under FECA).
14

15

D.B., supra note 7; J.W., Docket No. 19-0237 (issued July 1, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the August 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 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

8


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

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

Docket No. 17-1802
Issued: August 20, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 22, 2017 appellant filed a timely appeal from a July 12, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $13,631.71 because she concurrently received
Social Security Administration (SSA) benefits while receiving FECA benefits for the period
April 1, 2016 to April 29, 2017; (2) whether OWCP properly denied waiver of recovery of the
1
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated July 5, 2018, the Board exercised its discretion and denied the request, finding that
the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral
Argument, Docket No. 17-1802 (issued July 5, 2018).
2

5 U.S.C. § 8101 et seq.

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$100.00 every 28 days from appellant’s continuing compensation benefits.
FACTUAL HISTORY
On June 7, 2007 appellant, then a 53-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she injured her arm and neck while at work. OWCP accepted
employment-related spinal stenosis in the cervical region. On August 16, 2007 appellant
underwent discectomy and fusion at C6-7. She received wage-loss compensation on the
supplemental rolls beginning July 20, 2007, and OWCP placed her on the periodic compensation
rolls on October 28, 2007. Appellant returned to part-time modified duty on February 20, 2008,
and continued to receive partial disability compensation. On August 12, 2008 OWCP accepted
that appellant sustained a recurrence of total disability on May 16, 2008 and placed her on the
periodic compensation rolls in November 2008. Appellant has not returned to work.
Appellant signed EN1032 forms on January 22, 2016 and January 20, 2017. On the
January 22, 2016 form she indicated that she was receiving $228.00 monthly benefits from SSA
as part of an annuity for federal service. On the January 20, 2017 form appellant indicated that
she received monthly SSA benefits of $1,059.00.
OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits
calculation form to SSA on March 20, 2017. SSA returned the form on April 21, 2017, noting that
appellant received SSA retirement benefits beginning in April 2016. It indicated that beginning in
April 2016 appellant’s SSA rate with FERS was $1,181.00 and without FERS $132.70, and
beginning in December 2016, the SSA rate with FERS was $1,184.50 and without FERS $133.10.
By letter dated May 2, 2017, OWCP notified appellant that, based on information provided
by SSA regarding the amount her SSA benefit attributable to her federal service, her FECA wageloss compensation had been adjusted. The record contains a FERS offset calculation noting a total
overpayment of $13,631.71.
On June 7, 2017 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $13,631.71 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefit that she received from April 1, 2016 to
April 27, 2017 was based on credits earned while working in the Federal Government, and that
this portion of her SSA benefit was a prohibited dual benefit. OWCP found her not at fault in the
creation of the overpayment and provided an overpayment action request form and an overpayment
recovery questionnaire (Form OWCP-20). It informed appellant that, in order for it to consider
the question of waiver of recovery of the overpayment or to determine a reasonable method for
collection, she must provide a completed Form OWCP-20, and attach supporting financial
documentation, including copies of income tax returns, bank statements, bills, canceled checks,
pay slips, and any other record to support claimed income and expenses. OWCP notified her that
failure to submit the requested information within 30 days would result in the denial of waiver.
Appellant did not submit a response (Form OWCP-20) to the preliminary overpayment
determination.

2

By decision dated July 12, 2017, OWCP finalized the preliminary overpayment
determination, finding that an overpayment of compensation in the amount of $13,631.71 had been
created. It explained that the overpayment occurred because a portion of appellant’s SSA benefits
that she received from April 1, 2016 to April 29, 2017 was based on credits earned while working
in the Federal Government, and that this portion of her SSA benefit was a prohibited dual benefit.
OWCP found her without fault in the creation of the overpayment, but denied waiver of recovery
of the overpayment. It noted that appellant had not responded to the preliminary determination as
requested and, therefore, had not contested the finding. OWCP set repayment at $100.00, to be
deducted every 28 days from her continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 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.4
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.5 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the FERS
portion of SSA benefits because the portion of the SSA benefit earned as a federal employee is
part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.6
Section 404.310 of SSA regulations provides that entitlement to SSA benefits begins at 62
years. Section 404.409 of SSA regulations provides that for individuals born from 1943 to 1954,
full retirement age is 66 years.8
7

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $13,631.71.
OWCP found a $13,631.71 overpayment for the period April 1, 2016 to April 29, 2017.
The overpayment was based on the evidence received from SSA with respect to benefits paid to
appellant. The record indicates that while appellant was receiving compensation for total disability
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

6

FECA Bulletin No. 97-09 (issued February 3, 1997).

7

20 C.F.R. § 404.310.

8

Id. at § 404.409.

3

under FECA, she also received SSA age-based retirement benefits. A claimant cannot receive
concurrent compensation for wage loss and SSA retirement benefits attributable to federal service
for the same period.9 The information provided by SSA indicated that appellant received agebased SSA benefits that were attributable to federal service during the period April 1, 2016 to
April 29, 2017.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with respect
to the specific amount of age-based SSA retirement benefits that were attributable to federal
service. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing in April 2016 through April 2017. OWCP provided its calculations for each relevant
period based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period April 1, 2016 to April 29, 2017 and finds that an overpayment of compensation in the
amount of $13.631.71 was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in 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.”11 Section 10.438 of OWCP regulations provides that [t]he 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.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $13,631.71
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

9

Supra notes 5 and 6.

10

See G.T., Docket No. 15-1314 (issued September 9, 2016).

11

5 U.S.C. § 8129.

12

20 C.F.R. § 10.438.

4

would defeat the purpose of FECA or be against equity and good conscience.13 Appellant,
however, had the responsibility to provide financial information to OWCP,14 and did not do so.
In its preliminary determination dated June 7, 2017, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire (Form OWCP-20)
and financial information. It advised appellant that it would deny waiver of recovery if she failed
to furnish the requested financial information within 30 days. Appellant did not submit a
completed overpayment recovery questionnaire or otherwise submit financial information
supporting her income and expenses within the defined period. As a result, OWCP did not have
the necessary financial information to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.
Consequently, as appellant did not submit the financial information required under section
10.438 of OWCP regulations, which was necessary to determine her eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment of compensation in the amount of
$13,631.71.15
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.16
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly set recovery of the overpayment of compensation at
$100.00 every 28 days from continuing compensation payments.
Although OWCP provided appellant an overpayment recovery questionnaire with the
June 7, 2017 preliminary determination, as noted, she did not submit a completed overpayment
recovery questionnaire or other financial information that OWCP requested prior to the final
July 12, 2017 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.17 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines

13

Supra note 11.

14

20 C.F.R. § 10.438.

15

See S.B., Docket No. 16-1795 (issued March 2, 2017).

16

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

17

Id. at § 10.438.

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designed to collect the debt promptly and in full.18 As appellant did not submit any financial
information to OWCP as requested, the Board finds that there is no evidence in the record to show
that OWCP erred in directing recovery of the $13,631.71 overpayment at the rate of $100.00 every
28 days.19
As to appellant’s general assertion on appeal that the overpayment was in error, as
explained above OWCP correctly found that an overpayment of compensation had been created,
that appellant was not at fault in its creation, properly denied waiver of recovery of the
overpayment, and set a reasonable recovery rate.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$13,631.71, that OWCP properly denied waiver of recovery of the overpayment, and that it
properly required recovery at the rate of $100.00 every 28 days from appellant’s continuing
compensation payments.

18

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004).
19

See S.B., supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 20, 2018
Washington, DC

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

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

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

7


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

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

Docket No. 13-880
Issued: July 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 4, 2013 appellant filed a timely appeal from an October 12, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days has elapsed from the date of the last merit decision on
June 6, 2012, to the filing of this appeal on March 4, 2013, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s July 10, 2012 claim for
reconsideration under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 12, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case was previously before the Board.3 By decision dated June 6, 2012, the Board
affirmed a September 6, 2011 OWCP merit decision which denied appellant’s traumatic injury
claim, finding insufficient medical evidence to establish causal relationship between the
diagnosed conditions and the July 18, 2011 employment incident. The facts of the case, as set
forth in the prior decision, are hereby incorporated by reference.
On July 10, 2012 appellant submitted a request for reconsideration and resubmitted
affidavits from himself and Dr. Laurence E. Mermelstein, a Board-certified orthopedic surgeon.
He also submitted a July 6, 2012 report from Dr. Aretha Persaud-Mancusi, a Board-certified
family practitioner, who indicated that appellant was seen on June 29, 2011 for a visit that was
unrelated to the July 18, 2011 injury, an August 4, 2011 magnetic resonance imaging (MRI)
scan, and an August 8, 2011 report from Dr. Mermelstein, who diagnosed lumbar disc
displacement without myelopathy, thoracic/lumbar radiculopathy and lumbar stenosis.
By decision dated October 12, 2012, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was not sufficient to warrant further merit
review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.4 OWCP regulations provide that it may review
an award for or against compensation at any time on its own motion or upon application.5 The
employee shall exercise his or her right through a request to the district OWCP.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by it or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.7

3

Docket No. 12-216 (issued June 6, 2012). On July 25, 2011 appellant, then a 53-year-old letter carrier, filed a
traumatic injury claim alleging that on July 18, 2011 he sustained lower back, left hip and left leg injuries as a result
of reaching back to retrieve a package while sitting in a truck. By decision dated September 6, 2011, OWCP denied
the claim on the basis that the evidence was insufficient to establish causal relationship between the diagnosed
conditions and the employment incident.
4

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010).

5

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
6

Id.

7

20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).

2

A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.8 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.9 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.10
ANALYSIS
As noted above, the decision of June 6, 2012 reviewed OWCP’s September 6, 2011 merit
decision. In this appeal, the only decision the Board may review is the October 12, 2012 OWCP
nonmerit decision denying appellant’s request for reconsideration. The issue is whether his
request met at least one of the three requirements for obtaining a merit review. The Board finds
that appellant’s July 10, 2012 request for reconsideration did not satisfy any of the requirements
of 20 C.F.R. § 10.606(b).
Along with his request for reconsideration, appellant submitted affidavits from himself
and Dr. Mermelstein, an August 4, 2011 MRI scan and an August 8, 2011 report from
Dr. Mermelstein. The Board finds that these documents and reports are cumulative and
duplicative of the factual and medical evidence previously submitted. Evidence that repeats or
duplicates evidence already of record has no evidentiary value and does not constitute a basis for
reopening a case.11 These reports, therefore, are insufficient to warrant further merit review.
Appellant also submitted a July 6, 2012 report from Dr. Persaud-Mancusi who indicated
that appellant was seen on June 29, 2011 for a visit that was unrelated to the July 18, 2011 injury.
The Board finds that submission of this report did not require reopening appellant’s case for
merit review as it fails to provide rationalized medical opinion evidence addressing the issue of
causal relationship, which was the issue before OWCP. Therefore, it does not constitute relevant
and pertinent new evidence and is not sufficient to require OWCP to reopen the claim for
consideration of the merits.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by it; and he has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Thus, OWCP did not abuse its discretion in refusing to reopen his claim
for a review of the merits.

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.608(a).

10

Id. at § 10.608(b).

11

See Howard A. Williams, 45 ECAB 853 (1994); D.M., Docket No. 13-238 (issued April 4, 2013).

3

On appeal appellant argues the merits of his case. The Board noted above that it only has
jurisdiction over OWCP’s October 12, 2012 nonmerit decision which denied his request for
reconsideration and therefore is precluded from conducting a merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s July 10, 2012 claim for
reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1556
Issued: August 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 26, 2016 appellant filed a timely appeal from a June 29, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of compensation in
the amount of $1,805.26 for the period April 3 through 30, 2016; and (2) whether appellant was
at fault in the creation of the $1,805.26 overpayment and, therefore, ineligible for waiver of
recovery.
FACTUAL HISTORY
On August 5, 2002 appellant, then a 33-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 29, 2002 he sustained an injury to his left pinky and
1

5 U.S.C. § 8101 et seq.

ring finger while in the performance of duty. OWCP accepted the claim for left elbow tendinitis
and subsequently expanded the acceptance of the claim to include cubital tunnel syndrome of the
left elbow. On August 13, 2002 appellant accepted a limited-duty assignment. He stopped work
completely on August 23, 2002 and filed a recurrence of disability (Form CA-2a).2 OWCP paid
appellant compensation for temporary total disability on the supplemental rolls as of August 23,
2002 and paid wage-loss compensation and medical benefits on the periodic rolls as of
November 3, 2002.
Appellant elected to receive Office of Personnel Management (OPM) retirement benefits
effective February 6, 2008. By letter dated July 14, 2008, OPM advised that appellant had not
received any OPM benefits and had cancelled his election of benefits.
By letter dated July 17, 2008, OWCP advised appellant that he had been placed on the
periodic rolls and outlined his entitlement to compensation benefits and his responsibility to
return to work in connection with the accepted injury. Appellant’s weekly pay rate was
calculated to be $857.37. OWCP instructed: “In order to avoid an overpayment of
compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU RETURN TO WORK.
Each payment made through its automated system will include the period for which payment is
made. If you have worked for any portion of this period, you must return the check to this office.
Otherwise, an overpayment of compensation may result.” (Emphasis in the original.)
On April 5, 2013 appellant elected to receive his compensation benefits by direct deposit.
On August 27, 2015 OWCP referred appellant to Dr. Hormozan Aprin, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding the nature and extent of disability.
In a September 2, 2015 medical report, Dr. Aprin provided work restrictions and reported that
appellant could return to full-time sedentary light-duty work.
By letter dated September 18, 2015, OWCP requested that the employing establishment
provide appellant a job offer within Dr. Aprin’s restrictions.
On December 18, 2015 appellant accepted an offer of modified assignment (limited duty)
as a city carrier within his medical restrictions. The assignment was identified as an eight-hour
job offer.
In a January 28, 2016 CA-110 telephone note, the employing establishment informed
OWCP that it was still in the process of rehiring appellant since having accepted the job offer,
and would call again with a firm date on when he could return to work.
2

The Board notes that appellant had two prior workers’ compensation claims. On September 13, 2000 appellant
was delivering mail when his right leg and foot fell through the steps he was descending. OWCP accepted the claim
for right calf leg sprain under OWCP File No. xxxxxx274. Appellant returned to full-duty work on
November 3, 2000.
Appellant filed another claim for injury on September 19, 2001 when he was lifting his pushcart for mail onto
the back of his mail vehicle and felt shooting pain in his lower back. He stopped work and returned on
September 25, 2001 under a limited-duty assignment. By decision dated November 3, 2001, OWCP accepted the
claim for lumbar sprain and lumbar closed subluxation under OWCP File No. xxxxxx900. Appellant filed a
recurrence of disability claim commencing on October 29, 2001 which was accepted by OWCP for medical benefits
only. No other information pertaining to his prior claims is before the Board.

2

On February 18, 2016 appellant submitted a Health Benefits Election Form (Form 2809)
and requested his enrollment be changed.
On April 21, 2016 appellant filed a claim for compensation (Form CA-7) for leave
without pay (LWOP) for the period April 2 through 15, 2016. In an accompanying time analysis
form (Form CA-7a), he reported working 35.04 hours and requested LWOP for 44.96 hours
because no work was available within his medical restrictions.
By letter dated April 29, 2016, OWCP notified the employing establishment that
appellant filed a claim for compensation (Form CA-7) for the period April 2 through 15, 2016. It
had only just removed him from the periodic rolls as the last communication from the employing
establishment dated back to late January 2016 when it was still attempting to place appellant.
OWCP noted that appellant’s Form CA-7 was the first formal indication that he was working. It
explained that the claim for compensation was not payable since he had been issued
compensation on the periodic rolls through April 30, 2016 and thus an overpayment would be
declared. OWCP requested that the employing establishment submit a copy of appellant’s
current modified job offer and the number of hours he was presently working.
On May 2, 2016 appellant filed a Form CA-7 for LWOP for the period April 16
through 29, 2016. In an accompanying Form CA-7a, he reported working 32.62 hours and
requested LWOP for 47.38 hours because no work was available within his medical restrictions.
In a May 2, 2016 return to work worksheet (Form CA-3), the employing establishment
reported that appellant returned to work on April 2, 2016 in a part-time modified-duty position
with restrictions for eight hours per day. A copy of the December 18, 2015 offer of modified
assignment was submitted, as well OWCP’s April 29, 2016 letter with a handwritten note, “Job
offer will change if restrictions change. Job offer is for eight hours a day.”
In a May 6, 2016 CA-110 telephone note, OWCP informed appellant that he could keep
the last payment since he was not notified prior to its issuance. Appellant reported that, despite
signing an eight-hour tour of duty, he was only working four to five hours each day because
eight hours of work had not been available within his restrictions. As such, he was filing Form
CA-7’s for the remaining hours. Appellant further asked if he needed to return the April 30,
2016 payment.
On May 13, 2016 appellant filed a Form CA-7 for LWOP for the period April 30 through
May 13, 2016. In an accompanying Form CA-7a, he reported working 33.22 hours and
requested LWOP for 46.78 hours because no work was available within his medical restrictions.3
On May 23, 2016 OWCP approved wage-loss compensation for 41.42 hours for the period
May 1 through 13, 2016. It noted that the 41.42 hours did not include the intermittent wage-loss

3

Appellant reported working 2.64 hours on April 30, 2016 and requested LWOP for 5.36 hours.

3

amount for April 30, 2016, which was included in the last periodic rolls payment appellant
received.4
A payroll computer printout listed that appellant continued to receive wage-loss
compensation from April 3 through 30, 2016 even though he returned to full-time limited duty
on April 3, 2016. It noted that his 28-day gross compensation amounted to $3,208.00.
Following appropriate deductions for health insurance, life insurance, and retirement, appellant
received a net amount of $1,805.26 for the period April 3 through 30, 2016, thereby creating an
overpayment. The check date was noted as April 30, 2016.
By letter dated May 29, 2016, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $1,805.26 for the period April 3
through 30, 2016 because he continued to receive disability compensation after his return to fulltime light-duty work. It further found that he was at fault in creating the overpayment because
he accepted payments that he knew or reasonably should have known that he was not entitled to
after returning to full-time work. OWCP noted that appellant was not entitled to receive 28 days
of payment from April 3 through 30, 2016 resulting in a net overpayment of $1,805.26. It
informed him of his review rights and instructed him to complete an enclosed overpayment
recovery questionnaire form (OWCP-20) and submit supporting documentation within 30 days.
In a June 6, 2016 overpayment action request, appellant contested the overpayment
decision and requested OWCP make a decision based on the written evidence on the issues of
overpayment, fault, and waiver of recovery of the overpayment. He argued that he notified
OWCP that he was returning to work in the Form 2809 change of health insurance. Appellant
further explained that he submitted his CA-7 and CA-7a forms because he did not know that he
would continue to receive a monthly OWCP check. He argued that he did not work the full 160
hours and therefore should receive from OWCP the remaining hours he did not work. Appellant
attempted to contact OWCP about the check and was instructed to keep it. He further reported
that his health insurance payment was taken from both his OWCP check and his work check for
the same time period, and he was entitled to reimbursement from one of the payments.
Appellant further argued that OWCP had not processed his CA-7 and CA-7a forms for April 3
through 30, 2016 and thus, the overpayment amount was incorrect.
In an accompanying June 6, 2016 OWCP-20 form, appellant again argued that he was not
at fault with regard to the overpayment. He explained that he did not expect to receive full
payment from April 3 to 30, 2016 which is why he filed the CA-7 and CA-7a forms for missing
work hours. Appellant reported that these forms were not processed because he was paid by
OWCP through the end of the month for those hours. He contacted OWCP and was instructed to
keep the check. Appellant further noted that he notified OWCP he was returning to work when
he first sent in his Form 2809 which was also not processed.
4

The Board notes that on May 27, 2016, appellant filed another Form CA-7 and CA-7a for the period May 14
through 26, 2016 reporting 29.07 hours of work and claiming LWOP for 50.93 hours because no work was available
within his medical restrictions. On June 3, 2016 OWCP approved wage-loss compensation for 50.93 hours from
May 14 to 27, 2016 in the amount of $1,025.60. On June 10, 2016 appellant filed a Form CA-7 and Form CA-7a for
the period May 28 through June 10, 2016, reporting 22.49 hours of work and claiming LWOP for 33.51 hours
because no work was available within his medical restrictions. On June 20, 2016 OWCP approved wage-loss
compensation for 33.51 hours from May 28 through June 10, 2016 in the amount of $674.81.

4

Appellant submitted a copy of OWCP’s May 29, 2016 preliminary overpayment finding.
He noted that OWCP was incorrect as he did not return to full-time work for eight hours per day
on April 3, 2016. Appellant also submitted a copy of a March 4, 2016 letter from OWCP
acknowledging receipt of his February 18, 2016 Form 2809 which could not be processed as
open season was closed. He referenced this letter to show that he notified OWCP that he was
returning to work since he requested his health insurance be changed.
Appellant also submitted two 2016 earnings statements for pay periods eight and nine
which showed 44.96 hours and 47.38 hours of LWOP respectively. He argued that he was never
paid the remaining balance as requested on his CA-7 forms and that his earnings statement
showed that health insurance payments were being made from his paycheck for that time frame.
Appellant provided a Department of Labor benefits statement which showed that health
insurance costs were deducted from his wage-loss compensation check for the period April 3
through 30, 2016, resulting in a net payment of $1,805.26. He argued that health insurance
deductions were improperly taken from both his earnings and his wage-loss compensation.
Appellant further resubmitted his CA-7 and CA-7a forms requesting leave without pay for the
period April 2 through 29, 2016.
By decision dated June 29, 2016, OWCP finalized the preliminary overpayment
determination finding that appellant was overpaid in the amount of $1,805.26 from April 3
through 30, 2016 because he continued to receive disability compensation after his return to fulltime work. It found that appellant was at fault in the creation of the overpayment and thus, not
entitled to waiver of recovery. Recovery was directed by submitting the full amount of the
overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.6 OWCP’s regulations state in pertinent part: Compensation for wageloss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him from earning the wages earned before the work-related injury.7
A claimant is not entitled to receive temporary total disability and actual earnings for the same
period. OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.8
5

5 U.S.C. § 8102.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500.

8

B.H., Docket No. 09-292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

5

Section 8129(a) of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.9
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim and paid wage-loss compensation, placing him on the
periodic rolls. It determined that on April 3, 2016, appellant returned to work in a full-time,
light-duty capacity. However, OWCP subsequently paid him wage-loss compensation for total
disability from April 3 through 30, 2016, resulting in an overpayment of compensation.10 A
claimant is not entitled to receive temporary total disability benefits and actual earnings for the
same time period.11 The Board finds, however, that this case is not in posture for decision
regarding the amount of the overpayment.
In its June 29, 2016 decision, OWCP found that appellant received an overpayment of
compensation in the amount of $1,805.26 from April 3 to 30, 2016 because he returned to work
and received 28 days of compensation for total disability. It based its decision on the employing
establishment’s May 2, 2016 CA-3 worksheet which established that appellant returned to fulltime light-duty work for eight hours per day beginning April 2, 2016.
With respect to appellant’s work status, the employing establishment reported on its
CA-3 worksheet that appellant returned to work on April 2, 2016 and identified “part-time
modified duty: with restrictions for eight hours per day.”
The Board notes that contrary to OWCP’s finding, the employing establishment did not
identify appellant as having returned to full-time work as it reported part-time modified duty.
Appellant filed timely CA-7 and CA-7a forms for leave without pay beginning April 2, 2016 and
continuing. He cited partial hours worked on each day because no full-time work was available
within his medical restrictions. The LWOP hours were further verified by the employing
establishment on these claim for compensation forms. These forms, coupled with the employing
establishments CA-3 worksheet, provide support that appellant did not return to full-time work
on April 3, 2016, but rather returned in a part-time modified capacity.12 Moreover, OWCP
processed appellant’s subsequent Form CA-7’s for LWOP beginning May 1, 2016 and
continuing, because a full eight hours of work daily was not available within his medical
restrictions. As such, it remains unclear why it did not process the hours requested for the period
April 2 to 30, 2016. The Board therefore finds that, due to the incorrect designation of
appellant’s time records, OWCP has failed to establish that it correctly calculated the amount of

9

5 U.S.C. § 8129(a).

10

See J.W., Docket No. 15-1163 (issued January 13, 2016).

11

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

12

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

6

the overpayment for the period April 3 through 30, 2016. Therefore, the Board will set aside
OWCP’s June 29, 2016 decision and remand the case for further development.13
On remand, OWCP should recalculate the overpayment for the period April 3 through 30,
2016, taking into account the CA-7 and CA-7a forms requesting LWOP from April 2
through 30, 2016.14 It should also clarify whether health benefit deductions were dually made
from appellant’s wages and his FECA benefits during the time period in question. Following
such further development as it deems necessary, OWCP shall issue a de novo decision.15
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 17, 2017
Washington, DC

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

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

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

13

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

14

Id.

15

In view of the Board’s findings regarding the amount of the overpayment, it is premature to address fault and
recovery.

7