United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1029
Issued: February 1, 2012

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant, through her representative, timely appealed from the
November 9, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her 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 was in the performance of duty at the time of her
January 20, 2010 injury.
On appeal appellant contends that she was in the performance of duty at the time of the
injury. She was on an authorized break and was en route to a parking lot owned or controlled by
her employing establishment when she slipped and fell in a bus depot. Appellant was moving
1

5 U.S.C. § 8101 et seq.

her car to a closer parking lot for safety reasons and alleged it was common practice among her
colleagues.
FACTUAL HISTORY
On February 2, 2010 appellant, then a 59-year-old registered respiratory therapist, filed a
traumatic injury claim alleging that on January 20, 2010 she fractured her right elbow when she
fell while walking through a bus depot. The employing establishment controverted her claim,
contending that the injury did not arise in the performance of duty as she went to move her motor
vehicle at an off-site lot. It noted that the injury occurred off the premises while on county
property and appellant was not involved in any official off-premise duties.
In a memorandum dated February 5, 2010, appellant stated that on January 20, 2010 at
approximately 3:45 p.m., she left the building with the permission of her supervisor and walked
across the street and through the bus terminal using the proper walkways. She slipped and fell
on the pavement and landed on her right side, breaking her right arm and elbow. Appellant
stated that the purpose of the trip was to move her car from the employing establishment’s
parking lot to the main campus while it was still daylight. She contended that this was a
common practice and that she used her 15-minute paid break to do so.
By decision dated March 12, 2010, OWCP denied appellant’s claim finding that the
evidence did not establish that she was injured in the performance of duty.
On March 23, 2010 appellant requested an oral hearing before an OWCP hearing
representative. At the August 11, 2010 hearing, she testified that on January 20, 2010 she asked
her supervisor if she could park nearer to the building as she was permitted to do after 4:00 p.m.
Appellant stated that her supervisor gave her permission and, as she was walking across the bus
terminal, she slipped off a curb, fell and sustained injury to her arm. She moved her car almost
every day that she worked a 12-hour shift, which was most days. Appellant stated that this was
typical of other employees. She assumed that the parking lot was under the control of her
employing establishment, that she had an employment sticker on her car so that she could park
there, and the sticker was necessary to park at the location and that she got her sticker from the
employing establishment’s police. Appellant did not pay for parking and there was a designated
place in the parking lot for her to park. She stated that the parking lot was not connected to the
employing establishment in any way, and that she had to walk on the street or through the bus
terminal to reach the parking lot. Appellant’s attorney argued at the hearing that there was no
evidence of record that the employing establishment did not own the parking lot and to reach the
parking lot, appellant was forced to traverse land not under the control of the employing
establishment. He contended that appellant’s claim should be compensable under case law
pertaining to performing personal ministrations. Counsel argued that even if the employing
establishment did not own the parking lot, it had a certain amount of control over the lot as
evinced by the fact that it controlled parking permits.
By decision dated November 9, 2010, the hearing representative affirmed the March 12,
2010 decision finding that appellant was not injured while in the performance of duty.

2

LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.2 In order to
be covered, an injury must occur at a time when the employee may reasonably be said to be
engaged in her master’s business, at a place where she may reasonably be expected to be in
connection with her employment and while she was reasonably fulfilling the duties of her
employment or engaged in doing something incidental thereto.3 For an employee with fixed
hours and a fixed workplace, an injury that occurs on the employing establishment premises
when the employee is going to or from work, before or after working hours or at lunch time is
compensable.4 The course of employment for such employees includes acts which minister to
their personal comfort within the time and space limits of their employment.5 On the other hand,
when a claimant departs from his workstation without authorization to retrieve a personal item,
such activity is not considered an activity necessary for personal comfort or administration or
incidental to his employment.6 However, that same employee with fixed hours and a fixed
workplace would generally not be covered when an injury occurs off the employing
establishment premises while traveling to or from work.7 The reason for the distinction is that
the later injury is merely a consequence of the ordinary, nonemployment hazard of the journey
itself, which are shared by all travelers.8
The employing establishment premises may include all the property owned by the
employer.9 But even though an employer does not have ownership and control of the place
where an injury occurred, the locale may nevertheless be considered part of the premises.10 For
example, a parking lot used by employees may be considered a part of the employing
establishment premises when the employer contracted for the exclusive use of the facility or
where specific parking spaces were assigned by the employer.11 Other factors to be considered
include whether the employer monitored the parking facility to prevent unauthorized use,
whether the employer provided parking at no cost to the employee, whether the general public
2

Id. at § 8102(a).

3

Roma A. Mortenson-Kindschi, 57 ECAB 418, 423-24 (2006).

4

Id.; Denise A. Curry, 51 ECAB 158, 160 (1999); Narbik A. Karamian, 40 ECAB 617, 618-19 (1989).

5

K.M., Docket No. 10-1350 (issued March 1, 2011); R.H., Docket No. 09-13, issued March 6, 2009); A. Larson,
The Law of Workers’ Compensation § 21 (2007).
6

See A.K., Docket No. 09-2032 (issued August 3, 2010); Robert A. Pszczolkowski, Docket No. 01-1645 (issued
April 11, 2002).
7

Idalaine L. Hollins-Williamson, 55 ECAB 655, 658 (2004).

8

Id.

9

Denise A. Curry, supra note 4.

10

B.B., Docket No. 08-1338 (issued November 4, 2008).

11

Roma A. Mortenson-Kindschi, supra note 3.

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had access to the parking facility and whether there was alternate parking available for the
employee.12 An employee’s mere use of an offsite parking lot, by itself, is not sufficient to
demonstrate that the parking lot is part of the employer’s premises.13
The premises of the employer, as the term is used in workers’ compensation law, are not
necessarily coterminous with the property owned by the employer;14 they may be broader or
narrower and are dependent more on the relationship of the property to the employment than on
the status or extent of the legal title.15 The term premises as is generally used in workers’
compensation law is not synonymous with property. The former does not depend on ownership,
nor is it necessarily coextensive with the latter. Moreover, in some cases, premises may include
all the property owned by the employer; in other cases, even though the employer does not have
ownership and control of the place where the injury occurred, the place is nevertheless
considered part of the premises.16
The Board also recognizes the proximity exception to the premises rule, which states that
under special circumstances the industrial premises are constructively extended to those
hazardous conditions which are proximate to the premises and may, therefore, be considered as
hazards of the employing establishment.17 Underlying the proximity exception is the principle
that course of employment should extend to an injury that occurred at a point where the
employee was within the range of dangers associated with the employment.18 The most common
ground of extension is that the off-premises location where the injury occurred lies on the only
route or at least on the normal route, which employees must traverse to reach the plant and the
special hazards of that route become the hazards of employment.19 The main consideration in
applying this rule is whether the conditions giving rise to the injury are causally connected to the
employment.20
ANALYSIS
To be covered, an injury must occur at a time when the employee may reasonably be said
to be engaged in her master’s business, at a place where she may reasonably be expected to be in
connection with her employment and while she was reasonably fulfilling the duties of her

12

Diane Bensmiller, 48 ECAB 675 (1997); B.B., supra note 10.

13

Id.

14

Jimmie Brooks, 22 ECAB 318, 321 (1971); D.C., Docket No. 08-1782 (issued January 16, 2009).

15

Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

16

See Denise A. Curry, supra note 4; Jimmie Brooks, supra note 14.

17

Id.

18

See Idalaine L. Hollins-Williamson, supra note 7.

19

Shirley Borgos, 31 ECAB 222, 223 (1979).

20

See Jimmie Brooks, supra note 14.

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employment or engaged in doing something incidental thereto.21 In the instant case, appellant
was on an authorized break and was walking through a bus terminal when she slipped and fell
off a curb. She testified that she was going to move her car from an employing establishment
parking lot to a site closer to her office and that was necessary to walk through or around the bus
terminal to get to her car.
The Board notes that appellant provided persuasive testimony that the parking lot where
her car was parked was controlled by the employing establishment. Appellant noted that
although she did not pay for parking, her employer controlled the lot. She had an employment
sticker on her car to park there and there was a designated place for her to park. But appellant’s
injury did not occur while in the parking lot but at a curb near the bus terminal as she was
walking to the parking lot.
Appellant contends that she was in the performance of duty as she was attending to a
matter of personal ministration. The Board has held that certain injuries that arise on the
employer’s premises may be approved if the employee was engaged in activity reasonably
incidental to the employment, such as personal acts for the employee’s comfort, convenience and
relaxation.22 The Board has found that this doctrine applies in such cases as using the restroom
facilities,23 clearing snow off a claimant’s car that is parked in the employing establishment’s
parking lot24 and moving a car within the parking lot of the employing establishment.25 The
Board has also found claimant’s to be in the performance of duty in certain instances when the
injury occurred off the premises of the employing establishment. The Board has held that
appellant was in the course of employment in cases where she was on a paid break on a brief
errand and acted with the consent of the employer. These circumstances included going off
premises to get coffee when no coffee was available in the building,26 taking a smoke break
adjacent to the office building,27 or taking a walk when the employing establishment encouraged
the word processing employees to take regular breaks for walking.28
The Board finds that appellant was not in the performance of duty at the time of her
injury. This case is similar to Mary Keszler,29 where the employee was injured while feeding
parking meters on a public street for herself and other employees. In Keszler, the employee was
on her lunch break when she went outside to put money in parking meters for herself and for two
21

V.H., Docket No. 10-1053 (issued April 20, 2011).

22

J.O., Docket No. 09-1432 (issued February 3, 2010).

23

V.O., 59 ECAB 500 (2008).

24

J.O., supra note 22.

25

Cheryl Bean-Welch, Docket No. 03-714 (issued June 12, 2003).

26

Helen Gunderson, 7 ECAB 288 (1954).

27

Roma A. Mortenson-Kindschi, supra note 3.

28

Lola M. Thomas, 34 ECAB 525 (1983).

29

38 ECAB 735 (1987).

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other employees. She was struck by a motor vehicle and sustained injury. It was argued that her
injury was compensable even though it occurred, off-premises on a public street because
appellant’s conduct was condoned or supported by her supervisors and that different staff
members were assigned to feed the meters on a rotating basis. The administrative law judge in
charge of the office stated that the practice of rotating employees to put money in meters was
done with his knowledge. It was a voluntary duty employees were not required to perform. The
Board found, however, that appellant’s injury was not in the performance of duty as the practice
constituted an informal arrangement among the employees who drove their private vehicles to
work and was a personal convenience for the employees. Although there was no question that
appellant’s supervisor and the judge in charge of the office knew of and condoned this practice,
no employment factors were involved in appellant’s absence from the employer’s premises at the
time her injury occurred. The Board further noted that the mere knowledge of the practice itself
by appellant’s supervisors was not sufficient to make an informal office practice an activity
incidental to her employment.30 As in Keszler, appellant testified that going to move her car was
a common practice which was condoned by her employing establishment but no employment
factors were involved for appellant’s absence from premises at the time of injury. As in Keszler,
appellant’s injury was sustained while she was engaged in a matter of a personal convenience,
i.e., moving her car from a parking lot to the main campus and while on a public street. Her
activity did not relate to personal ministration while on the premises. The Board finds that
appellant’s injury, which occurred off-premises, was not in the performance of duty.
In D.C.,31 the employee was parked on a public street because it was the closest parking
space he could find to his office. The Board found that his slip and fall on a snow covered
sidewalk was not covered because he was injured while on a public sidewalk, which was not
controlled by his employer. The Board noted that the proximity rule did not apply as the hazard
causing the injury, an ice and snow covered curb on a public sidewalk, was a hazard common to
all travelers and is not related to the employment. The Board found that the employee’s injury
arose from an ordinary, nonemployment hazard of the journey from work that was shared by all
travelers. The Board noted that even if the sidewalk on which appellant fell was the customary
means of access to the employing establishment for its employees, this would not alter the public
nature of this sidewalk or render it part of the employing establishment’s premises.32
The Board finds that appellant has not established that the sidewalk on which she fell was
used exclusively or principally by the employees of the employing establishment for the
convenience of the employer.33 There is no evidence to support that the use of the sidewalk was
restricted to the employees of the employing establishment. The Board finds that appellant’s
injury occurred while she was exposed to an ordinary, off-premises nonemployment hazard of
the journey shared by all travelers.34
30

Id.

31

Docket No. 08-1782 (issued January 16, 2009); Jimmie Brooks, 22 ECAB 318, 321 (1971).

32

Id.

33

Id.; see also Idalaine L. Hollins-Williamson, supra note 7; Mary Keszler, supra note 29.

34

Shirley Borgos, supra note 19.

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Accordingly, appellant has not met her burden of proving that she sustained an injury in
the performance of duty.
CONCLUSION
The Board finds that appellant has not established that she was in the performance of
duty at the time of her January 20, 2010 injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2010 is affirmed.
Issued: February 1, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence RI, Employer
__________________________________________

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

Docket No. 13-1341
Issued: January 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 14, 2013 appellant filed a timely appeal from an April 26, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. 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 a $19,225.52 overpayment of
compensation for the period December 9, 2010 to October 20, 2012, as appellant received
simultaneous wage-loss compensation and Social Security Act benefits without an appropriate
offset; (2) whether it properly denied waiver of the overpayment; and (3) whether OWCP
properly directed recovery of the overpayment by deducting $600.00 every 28 days from
appellant’s continuing compensation payments.
On appeal, appellant contends that OWCP misstated his income and expenses. He asserts
that he receives Social Security benefits of $1,773.83 a month, not $3,770.00 as found by
1

5 U.S.C. § 8101 et seq.

OWCP. Appellant claimed net rental income of $625.00 a month, whereas OWCP listed
$900.00. He also contends that OWCP did not include life insurance premiums of $1,151.00 and
$101.29 in Medicare payments in his monthly expenses of $3,415.00. Appellant asserted that his
actual monthly expenses were $4,667.29 a month. He acknowledged that OWCP did not allow
all his claimed expenses and that repaying the overpayment presented severe financial hardship.
Appellant requested that OWCP reduce the monthly repayment amount.
FACTUAL HISTORY
OWCP accepted that on September 15, 2010 appellant, then a 67-year-old laborer/
custodian, sustained a right elbow contusion and abrasion when he collided with a locker. Under
File No. xxxxxx883, it previously accepted a concussion and left shoulder strain sustained on
September 11, 2001 when he tripped and fell on a palette strap.2 Appellant received Social
Security Administration (SSA) retirement benefits as of January 1, 2008 as a FERS (Federal
Employee Retirement System) employee who had reached 65 years of age. He stopped work on
September 15, 2010 and did not return. Appellant also received continuation of pay from
September 15 to December 9, 2010 and was placed on the daily rolls in receipt of wage loss as of
December 10, 2010.
OWCP placed him on the periodic compensation rolls effective
3
January 16, 2011.
In an October 18, 2012 memorandum, SSA advised OWCP that appellant received
monthly benefits beginning in January 2008 at the following rates: $888.00 from January to
November 2008; $939.00 from December 2008 to November 2011; and $973.00 commencing in
December 2011. OWCP determined that he was overpaid $19,225.52 as follows: $633.13 from
December 9 to 31, 2010; $9,260.24 from January 1 to November 30, 2011; and $9,332.14 from
December 1, 2011 to October 20, 2012.
In an October 24, 2012 memorandum, OWCP calculated the offset of appellant’s SSA
benefits based on his current receipt of $1,942.51 in FECA compensation benefits each 28-day
payment cycle. Effective October 26, 2012, it adjusted his wage-loss compensation under FECA
to reflect the appropriate offset of his SSA benefits.
By notice dated November 15 2012, OWCP advised appellant of its preliminary
determination that a $19,225.52 overpayment of compensation was created as he was paid dual
compensation under FECA and the Social Security Act for the period December 9, 2010 to
October 20, 2012 without an appropriate offset.
On December 10, 2012 appellant completed an Overpayment Recovery Questionnaire
(Form OWCP-20). He listed monthly household income of $6,727.00: $3,770.00 in SSA
benefits, $1,602.00 in disability benefits through the Department of Veterans Affairs and
2

On October 13, 2011 OWCP doubled appellant’s claims under File No. xxxxxx140, File No. xxxxxx883 and
File No. xxxxxx897 under master File No. xxxxxx140.
3

Under File No. xxxxxx883, OWCP issued appellant schedule awards for 22 percent impairment of the right
upper extremity. Under File No. xxxxxx140, by decision dated September 27, 2011, it denied his claim for a
schedule award for additional right arm impairment. The schedule award issue is not before the Board on the
present appeal.

2

$900.00 in rental income from a condominium in Florida. Appellant listed $199,899.00 in
assets: $180,000.00 in annuity value, $12,112.00 in a savings account; and $7,687.00 in a
checking account, $100.00 cash on hand. He noted that he owned a condominium worth
$67,760.00 and had a mortgage balance of $118,500.00 on his primary residence. Appellant
submitted supporting financial documentation for his income, assets and expenses.
Appellant requested a prerecoupment hearing, held on March 5, 2013. He explained that,
after being turned down for life insurance due to his history of renal cancer, he purchased a
condominium in Florida to provide rental income to his wife in the event of his death. Appellant
also received disability benefits from the Department of Veterans Affairs in the amount of
$1,600.00 a month. Following the hearing, he submitted additional financial documentation
regarding taxes, maintenance fees, insurance and utilities for the Florida condominium and his
primary residence in Rhode Island. Appellant also submitted bills showing the following
monthly expenses: $165.00 for cable television; $5.50 life insurance premium; $170.00 for
automobile insurance; and $72.00 for dental insurance.
By decision dated April 26, 2013, an OWCP hearing representative finalized the fact and
amount of the overpayment. He found that appellant was without fault in creation of the
overpayment, but that waiver could not be granted as there were sufficient assets and income to
repay the overpaid compensation without incurring financial hardship. Therefore, recovery of
the overpayment would not defeat the purpose of FECA. The hearing representative found that
appellant’s monthly household income was $8,736.00, including $3,770.00 in SSA benefits;
$1,602.00 in disability benefits from the Department of Veterans Affairs; $2,104.00 in FECA
compensation; and $900.00 in rental income from the Florida condominium. He allowed
$3,415.00 in monthly ordinary and necessary living expenses, including $1,790.00 for mortgage,
taxes, utilities and insurance on appellant’s primary residence, $1,000.00 for food, $133.00 for
clothing, $248.00 in life and automobile insurance premiums and $244.00 in monthly minimum
credit card payments. The hearing representative disallowed expenses related to the Florida
condominium as it was not appellant’s primary residence and cable television fees as such costs
were not ordinary or necessary. He found that appellant had $4,961.00 in discretionary income
per month, the difference between his $8,376.00 monthly income and allowed expenses of
$3,415.00. The hearing representative found that recovery of the overpayment would not be
against equity and good conscience as appellant did not change his position for the worse in
reliance on the overpaid compensation, as he used the funds to invest in real estate. He directed
recovery of the overpayment by deducting $600.00 from appellant’s continuing compensation
payments every 28 days, finding that this amount would not impose a financial hardship.
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 his duty.4 Section 8129(a) of FECA provides, in pertinent part, that when “an
overpayment has been made to an individual under this subchapter because of an error of fact or

4

5 U.S.C. § 8102(a).

3

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.6
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply. In disability cases, FECA benefits will be
reduced by the SSA benefits paid on the basis of age and attributable to the employee’s federal
service.7 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: Where a claimant had received SSA benefit, OWCP will obtain
information from SSA on the amount of the claimant’s SSA benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
the claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without
the FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual
benefit to determine the amount of benefits which are attributable to federal service and that
amount will be deducted from FECA benefits to obtain the amount of compensation payable.8
ANALYSIS -- ISSUE 1
The record establishes that appellant received compensation under FECA beginning on
December 10, 2010. OWCP placed him on the periodic rolls in receipt of wage loss on
January 16, 2011.
Appellant received FECA benefits for the period commencing
January 16, 2011. OWCP began to offset appellant’s FECA benefits by the amount of his SSA
benefits attributable to his federal employment under FERS on October 26, 2012.9 SSA records
provided the offset calculations for this period that yielded an overpayment of compensation in
the amount of $19,225.52. The Board finds that the calculations are correct. The Board notes
that, on appeal, appellant does not contest the fact or amount of the overpayment as determined
by OWCP.
As appellant is not entitled to receive both FECA benefits and that portion of his SSA
benefits attributable to his federal employment, OWCP properly determined that an overpayment
in the amount of $19,225.52 was created for the period December 9, 2010 to October 20, 2012.10
5

Id. at § 8129(a).

6

Id. at § 8116(d); Janet K. George (Angelos George), 54 ECAB 201 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
8

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

9

5 U.S.C. § 8116(d).

10

Janet K. George (Angelos George), supra note 6.
February 15, 2012).

4

See also G.B., Docket No. 11-1568 (issued

LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA11 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is found in
section 8129(b) of FECA, which provides that adjustments or recovery may not be made when
incorrect payments have been made to an individual who is without fault and when such
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.12
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment.13 OWCP must exercise its discretion to determine whether
recovery of the overpayment would “defeat the purpose of [FECA] or would be against equity
and good conscience,” pursuant to the guidelines provided in sections 10.434-37 of the
implementing federal regulations.14 Recovery of an overpayment will defeat the purpose of
FECA is such recovery would cause hardship to a currently or formerly entitled beneficiary
because: (a) the beneficiary from whom OWCP seeks recovery needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined
by OWCP from data furnished by the Bureau of Labor Statistics.15 A higher amount is specified
for a beneficiary with one or more dependents.16 Recovery of an overpayment is considered to
be against equity and good conscience when any individual who received an overpayment would
experience severe financial hardship in attempting to repay the debt.17 Recovery of an
overpayment is also considered to be against equity and good conscience when any individual, in
reliance on such payments or on notice that such payments would be made, gives up a valuable
right or changes his or her position for the worse.18
Section 10.438 of the FECA’s implementing regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery

11

5 U.S.C. § 8129(a).

12

Id. at § 8129(b).

13

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

14

20 C.F.R. §§ 10.434-37 (1999).

15

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (October 2004).
16

20 C.F.R. § 10.436.

17

Id. at § 10.437(a).

18

Id. at § 10.437(b).

5

of an overpayment would defeat the purpose of FECA or be against equity and good
conscience.19
As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.20
ANALYSIS -- ISSUE 2
Appellant was found to be without fault in creation of the overpayment. Accompanying
the November 15, 2012 preliminary notice of overpayment, OWCP provided appellant an
overpayment recovery questionnaire to obtain information about his income, assets and
expenses. Appellant provided information with supporting documentation regarding his income,
assets and expenses.
In the April 26, 2013 decision, an OWCP hearing representative found that, although
appellant was without fault in creation of the overpayment, waiver could not be granted as he
had sufficient assets and income to repay the overpaid compensation without incurring financial
hardship. The hearing representative determined that appellant did not need substantially all of
his income to cover ordinary and necessary living expenses as his discretionary income exceeded
the $50.00 a month. Appellant’s monthly household income was $8,736.00, with $3,415.00 in
allowable monthly ordinary and necessary living expenses, leaving $4,961.00 in discretionary
income per month, well above the $50.00 amount used to determine this criterion. Also, he had
$20,799.00 in bank accounts and cash, well above the $8,000.00 asset base for an individual with
a spouse or one dependent.21 Therefore, recovery of the overpayment would not defeat the
purpose of FECA. The hearing representative further found that recovery would not be against
equity and good conscience as appellant had not changed his position for the worse as a result of
the overpaid funds. He directed recovery of the overpayment by deducting $600.00 from
appellant’s continuing compensation payments every 28 days, finding that this amount would not
impose a financial hardship.
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, he has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.22
On appeal, appellant contends that repayment of the overpayment would cause financial
hardship and that OWCP overstated his income and did not allow all of his expenses. As noted,
the financial information he submitted establishes that he was not entitled to waiver based on
financial hardship.

19

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

20

Daniel J. Perea, 42 ECAB 214 (1990).

21

Federal (FECA) Procedure Manual, supra at note 15 Chapter 6.200.6a(1)(b).

22

M.C., Docket No. 13-1147 (issued July 18, 2013).

6

LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.23
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $19,225.52 overpayment by
deducting $600.00 from appellant’s compensation payments every four weeks, OWCP took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.441 and found that this method of recovery would minimize any resulting hardship on
appellant. Therefore, OWCP properly required repayment of the overpayment by deducting
$600.00 from appellant’s compensation payments every four weeks.
CONCLUSION
The Board finds that OWCP properly found a $19,225.52 overpayment of compensation
for the period December 9, 2010 to October 20, 2012 as he received a prohibited dual benefit.
The Board further finds that OWCP properly denied waiver as appellant’s financial information
demonstrated that recovery would not defeat the purpose of FECA or be against equity and good
conscience. The Board further finds that OWCP did not abuse its discretion by requiring
recovery of the overpayment by deducting $600.00 every 28 days from appellant’s continuing
compensation payments.

23

20 C.F.R. § 10.441(a) (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF THE ARMY, DENTAL
CLINIC, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 09-2334
Issued: August 13, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from a June 24, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 32 percent right arm permanent
impairment or a 28 percent left arm impairment.
FACTUAL HISTORY
The case has been before the Board on two prior appeals. In a decision dated March 14,
2002, the Board remanded the case for further development regarding the degree of permanent
impairment in the arms.1 By decision dated July 3, 2008, the Board again remanded the case.2
1

Docket No. 00-2631 (issued March 14, 2002).

2

Docket No. 08-412 (issued July 3, 2008).

The Board directed the Office to clarify the percentage of impairment to each arm that had
previously been awarded and to determine if the medical evidence showed a greater impairment.
The history of the case was provided in the Board’s prior decisions and is incorporated herein by
reference.
Following return of the case, the Office referred the case to an Office medical adviser. In
a report dated September 17, 2008, the medical adviser noted that he had reviewed the case twice
previously and had questioned the ulnar nerve findings of the referee physician, Dr. Hely. The
Office medical adviser noted that there was “a lot of confusion” as to the actual schedule award
for each arm and Dr. Hely had given “very vague data in his [June 13, 2002] report especially for
the left upper extremity.” As to a 2005 supplemental report from Dr. Hely, the medical adviser
noted he had previously reviewed the report and found “there was poor supporting data for the
ulnar nerve lesion. His report was rather confusing.” The medical adviser concluded that the
Office had given a total of 47 percent for both upper extremities.
By decision dated October 2, 2008, the Office found that appellant had received 27
percent impairment for the right arm, 20 percent for the left arm and was not entitled to a further
award. Appellant requested a hearing before an Office hearing representative, which was held
on May 19, 2009.
By decision dated June 24, 2009, the hearing representative found that the record
established that appellant had received schedule awards for 32 percent to the right arm and 28
percent for the left arm. In addition, the hearing representative found Dr. Hely’s reports
constituted the weight of the medical evidence and appellant was not entitled to an additional
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants.5 The American Medical Association, Guides to
the Evaluation of Permanent Impairment has been adopted by the implementing regulations as
the appropriate standard for evaluating schedule losses.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

6

20 C.F.R. § 10.404 (1999).

2

ANALYSIS
The Office did not make appropriate findings on the issues in its October 2, 2008
decision as directed by the Board in its July 3, 2008 decision. An Office hearing representative,
however, did provide a detailed review of the Office’s prior schedule award decision in this case
and concluded that appellant had received awards for 32 percent in the right arm and 28 percent
in the left arm. On appeal, appellant does not contest the hearing representative’s finding in this
regard.
The remaining issue is whether the medical evidence supports a greater impairment.
Appellant had been referred to Dr. Hely as a referee physician to resolve a conflict in the medical
evidence.7 The initial report was dated June 13, 2002, with a brief supplemental report dated
February 11, 2005. As noted by appellant, Dr. Hely did not provide detailed physical
examination findings. He did not, for example, provide specific range of motion results. The
Office’s own medical adviser refers to Dr. Hely’s reports as being “vague” with “poor
supporting data” and he finds the reports “confusing.” The Board also notes that the initial
examination by Dr. Hely was more than four years prior to the last schedule award dated
November 17, 2006.
The Board finds that the reports of Dr. Hely were not sufficient to resolve the conflict in
the medical evidence. To be entitled to special weight, a referee physician must provide a
rationalized medical opinion based on a complete background.8 Given the significant time
elapsed since Dr. Hely’s report, the case will be remanded for referral to a new referee examiner
for a rationalized opinion as to whether appellant has more than a 32 percent right arm
impairment or a 28 percent left arm impairment causally related to her federal employment.9
After such further development as the Office deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds the conflict in the medical evidence was not resolved and the case
requires further development of the medical evidence.

7

See 5 U.S.C. § 8123(a).

8

Richard R. LeMay, 56 ECAB 341 (2005).

9

As of May 1, 2009, the 6th edition of the A.M.A., Guides is to be used for schedule award determinations.
FECA Bulletin No. 09-03 (issued March 15, 2009).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 24, 2009 and October 2, 2008 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: August 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Washington, DC,
Employer
__________________________________________

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

Docket No. 12-1262
Issued: December 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 20121 appellant filed a timely appeal of the November 25, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed between the most recent merit decision
dated September 9, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s nonmerit
decision was issued on November 25, 2011, the 180-day time computation begins on November 26, 2011. Since
using May 24, 2012, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal
rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is
May 22, 2012, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that her preexisting allergy conditions were aggravated by
her exposure to fumes and cold temperatures at work from January 28, 2010 to March 9, 2011.
FACTUAL HISTORY
This case was previously on appeal before the Board with respect to the denial of
appellant’s claim for a respiratory condition.3 In an October 5, 1998 decision, the Board
affirmed as modified an August 8, 1996 OWCP decision, finding that the evidence established
that appellant was exposed to dirt and dust on June 19, 1993 in the performance of duty, but that
the medical evidence was insufficient to establish that she sustained a diagnosed condition
causally related to the accepted work exposure. The facts as relevant to the present issue are set
forth.
On March 15, 2010 appellant, then a 60-year-old clerk, alleged that on March 11, 2010
she developed an upper respiratory condition as a result of her adverse reaction to a combination
of fumes in the air from service and vehicle shops and spray from the supply shop and
exterminator at work. In an April 20, 2010 letter, she described the effects of her exposure to
environmental pollutants at work on her preexisting allergy condition. Medical reports dated
March 17 through May 1, 2010 from Dr. James A. Mutcherson, Jr., an attending physician
specializing in pediatric allergy, advised that appellant had exacerbated perennial allergic rhinitis
and vasomotor rhinitis due to her March 11, 2010 exposure to noxious fumes and extreme
temperature changes at work. He opined that she could not perform her regular work duties, but
was able to perform light-duty work with restrictions.
In an October 29, 2009 report, which contained an orthopedic surgeon whose signature is
illegible advised that appellant had spinal stenosis at L3-5. Appellant could not perform her
regular work duties, but was able to work with restrictions.
In a September 9, 2010 decision, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that her claimed allergic rhinitis was caused or
aggravated by the established March 11, 2010 work-related exposure to fumes.
On March 9, 2011 appellant requested reconsideration.
In a June 10, 1986 report, Dr. Mutcherson opined that appellant was incapable of
performing her assigned duties commencing February 8, 1984 because her allergic symptoms
were aggravated by her work environment. He signed a job description on January 10, 1989
stating that, she could perform the duties of a modified data conversion operator. In a March 16,
2010 report, Dr. Mutcherson reiterated his diagnosis of perennial allergic rhinitis. He advised
that appellant had severe vasomotor rhinitis. Dr. Mutcherson opined that she was permanently
3

Docket No. 97-451 (issued October 5, 1998).

2

restricted from exposure to offending allergens, i.e., pungent odors from transportation vehicles,
dust-laden work areas, ventilation ducts and any mold contaminants as they could cause
incapacitation. In a January 4, 2011 report, he provided a history of his treatment of appellant’s
allergic conditions since December 1994 and the March 11, 2010 work exposure.
Dr. Mutcherson initially recommended avoidance of exposure to noxious odors and fumes. He
stated that this would prevent the exacerbation of the experienced severe allergic episodes that
were fraught with malaise.
On February 3, 1989 a medical officer whose signature is illegible signed a job
description stating that, appellant could perform the duties of a modified data conversion
operator.
Correspondence from OWCP and the employing establishment, dated April 3, 1986
through February 8, 1989 addressed the acceptance of appellant’s claim for temporary
aggravation of allergic rhinitis, disability for work on intermittent dates from August 28, 1984 to
August 28, 1986 and modified job offers. In an April 17, 2010 letter, the employing
establishment advised appellant that there was no need for further action by its reasonable
accommodation committee since she was receiving assistance with her traumatic injury claim.
In a November 25, 2011 decision, OWCP denied appellant’s request for reconsideration,
finding, that it neither raised substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,4
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.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
On March 9, 2011 appellant disagreed with OWCP’s September 9, 2010 decision
denying her claim for a traumatic injury in the performance of duty and requested
reconsideration. The relevant issue on reconsideration is whether she submitted sufficient
medical evidence to establish her claim for employment-related allergy conditions.

4

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at anytime on her own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

3

Dr. Mutcherson’s June 10, 1986 report found that appellant was unable to perform her
assigned duties commencing February 8, 1984 due to her allergic symptoms which were
aggravated by her work environment. This evidence predates the March 11, 2010 employmentrelated exposure and is not relevant to whether the accepted work exposure caused or aggravated
appellant’s allergy symptoms. Dr. Mutcherson’s March 16, 2010 and January 4, 2011 reports
found that appellant had perennial allergic and severe vasomotor rhinitis. He permanently
restricted her from exposure to certain offending allergens to prevent incapacitation. The fear of
a future injury is not compensable under FECA.7 Accordingly, these reports are not relevant to
the issue of whether the diagnosed conditions were caused or aggravated by the accepted
March 11, 2010 work exposure. The Board has held that evidence that does not address the
pertinent issue in a claim does not warrant a reopening of the case for a merit review.8 The other
evidence that appellant submitted, such as the job descriptions signed by Dr. Mutcherson and the
unidentified medical officer and correspondence from OWCP and the employing establishment
do not address the relevant medical issue of whether appellant sustained an allergy condition
caused or aggravated by her March 11, 2010 employment-related exposure to fumes.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her March 9, 2011 request for reconsideration.9
On appeal, appellant contended that her preexisting allergy conditions were aggravated
by her exposure to fumes and cold temperatures at work from January 28, 2010 to
March 9, 2011. As stated, the Board finds that she did not meet any of the requirements of
section 10.606(b)(3). Appellant failed to establish that OWCP erroneously applied or interpreted
a specific point of law, advance a new and relevant legal argument or submit relevant and
pertinent evidence not previously considered by OWCP. Accordingly, OWCP properly denied
her March 9, 2011 request for reconsideration.
Also on appeal, appellant submitted new evidence.
jurisdiction to review evidence for the first time on appeal.10

However, the Board lacks

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

7

L.T., Docket No. 10-442 (issued October 20, 2010); Mary A. Geary, 43 ECAB 300 (1991).

8

See E.M., Docket No. 09-39 (issued March 3, 2009) (where the Board held that new evidence submitted upon a
reconsideration request that does not address the pertinent issue is not relevant evidence).
9

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).
10

20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 09-606
Issued: December 18, 2009

Case Submitted on the Record

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

JURISDICTION
On January 2, 2009 appellant filed a timely appeal of the October 30 and 31, 2008 merit
decisions of the Office of Workers’ Compensation Programs finding she received overpayments
of compensation for which she was at fault and directing their recovery. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,091.21 for the period June 1, 2007 to June 15, 2008 and $1,223.25 for the period
June 1, 2007 to January 19, 2008 due to the payment of augmented compensation; (2) whether
the Office properly determined that she was at fault in creating the overpayments and, therefore,
ineligible for waiver; and (3) whether the Office properly directed recovery of the $2,091.21
overpayment at the rate of $319.00 every four weeks from appellant’s continuing compensation
payments.

FACTUAL HISTORY
On August 6, 2002 appellant, then a 39-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that on June 7, 2002 she first became aware of ganglion
tendinitis in her left thumb and wrist and cervical disease caused by her federal employment.1
She claimed one dependent son, who was born on June 21, 1987. By decision dated
November 8, 2002, the Office accepted that appellant sustained left thumb ganglion and left
wrist tendinitis due to her employment activities. The evidence, however, was insufficient to
establish that she sustained cervical or shoulder conditions due to her work duties. In a
December 3, 2003 decision, an Office hearing representative affirmed the November 8, 2002
decision.2
On July 16, 2005 appellant filed a CA-2 form alleging that on June 13, 2005 she first
became aware of shoulder, neck and bilateral hand conditions and realized that they were caused
by her federal employment.3 By letter dated October 7, 2005, the Office accepted her claim for
right thumb metacarpo-carpal joint (MCC) and wrist sprain.
By letter dated November 7, 2005, the Office advised appellant that she was being paid
compensation for temporary total disability from June 16 to November 11, 2005 as a result of her
employment-related left thumb ganglion and left wrist tendinitis following her return to work
four hours per day. Appellant was being paid at the statutory two-thirds rate as her son had
turned 18 years old on June 21, 2005. She would receive a separate compensation check for the
difference between the two-thirds and three-fourths rates for the period June 16 to 20, 2005 in
which she was entitled to augmented benefits.
On November 7, 2005 the Office requested that appellant submit a statement and
certification of her son’s enrollment in school to determine whether he was an eligible dependent
beyond his 18th birthday. If appellant’s son was incapable of self-support, it advised appellant
that she could claim continuing compensation by submitting a medical report from an attending
physician which fully described the mental or physical disability that caused such incapacity and
estimated its probable duration. The Office advised appellant that the law prohibited her
acceptance of compensation when a dependent was no longer eligible. If the dependent was no
longer a full-time, unmarried student under the age of 23 who had not completed four years of
education beyond high school, then appellant was instructed to notify the Office immediately.
Any compensation payment she received after such a change in status of the dependent must be
returned to the Office for cancellation. The payment would be replaced with a payment in the
correct amount.
On November 8, 2005 appellant completed a Form EN1618 claiming her son as a
dependent. The vice principal of West Contra Costa Adult Education Center, an accredited
1

OWCP File No. xxxxxx106.

2

In an April 27, 2004 order, the Board dismissed appellant’s appeal of the December 3, 2003 decision as no duly
authorized representative filed an application for review on her behalf. Docket No. 04-714 (issued April 27, 2004).
3

OWCP File No. xxxxxx898.

2

school, signed the form on November 10 and 17, 2005 and stated that appellant’s son was
enrolled from September 6, 2005 to June 1, 2006. The date he was expected to complete his
course of study was unknown.
In a January 24, 2007 letter, the Office requested verification that appellant’s son was a
student by providing a statement and certification of school enrollment using accompanying
EN1618 forms. Appellant was instructed to fill out Part A and send both Parts A and B to the
school so that an official at the school could fill out both Parts A and B. The Office advised
appellant that she was prohibited by law from accepting compensation when a dependent was no
longer eligible. Appellant was required to notify the Office immediately if her son was no longer
a full-time, unmarried student under the age of 23 who had not completed four years of
education beyond high school. The Office noted that any compensation check received after a
change in dependency status must be returned to the Office.
On February 8, 2007 appellant completed a Form EN1618 and again claimed her son as a
dependent. The registrar of Pensacola Christian College signed the form on February 14, 2007
and indicated that appellant’s son was enrolled from January 22 to May 9, 2007. Appellant’s son
was expected to complete his course of study on December 17, 2010. However, the registrar
stated that the college was not an accredited or a licensed institution.
By letter dated December 28, 2007, the Office advised appellant that additional
information was required in connection with the augmented compensation she was receiving. It
requested that she complete Part A of the enclosed EN1618 form and that an official at the
school complete Part B of the form after reviewing Part A. Appellant was instructed to return
the form to the Office within 30 days or her compensation may be suspended.
On January 16, 2008 appellant completed a Form EN1618, reporting that her son was
enrolled at a U.S. Navy technical school from July 3, 2007 to June 2008.
In a January 25, 2008 letter, the Office advised appellant that her compensation was
being reduced to the statutory two-thirds rate because there was no evidence to establish that she
had any eligible dependents. It had not received any information from a school official as to
whether her son was enrolled as a full-time student. The Office noted that the Pensacola
Christian College was not an accredited school. It advised appellant that, if her son had not
continued to be a full-time student in an accredited institution since his 18th birthday, then she
received an overpayment. Appellant was afforded 60 days to submit evidence establishing that
her son’s eligibility as a dependent.
By letter dated March 21, 2008, appellant submitted a transcript from Pensacola Christian
College which stated that her son was enrolled from January 22 to February 23, 2007.
On June 21, 2008 appellant completed a Form EN1618, reporting that her son was
enrolled at West Contra Costa Adult Education Center from September 2005 to April 3, 2006.
Her son completed his education on April 3, 2006. In a second Form EN1618 completed that
date, appellant reported that her son was enrolled at Contra Costa College during the fall of 2005,
fall of 2006 and spring of 2007 (August 2005 to May 2007). Her son also attended summer

3

school from June 16 to July 24, 2008. The Director of Admissions and Records signed the form
on June 23, 2008 and confirmed attendance during the claimed period.
On July 31, 2008 appellant returned to part-time work four hours per day.
On September 10, 2008 the Office made a preliminary determination that appellant
received an overpayment of compensation in the amount of $1,223.25 for the period June 1,
2007 to January 19, 2008 under OWCP File No. xxxxxx898. There was also an overpayment in
the amount of $2,091.21 for the period June 1, 2007 to June 15, 2008 under OWCP
File No. xxxxxx106. She continued to claim her son, who was over 18 years old, as a dependent
when there was no evidence establishing his full-time student status from May 2007 to
June 15, 2008. The Office noted that the Pensacola Christian College was not an accredited
school and that enrollment in a U.S. Navy technical school had not been verified. The beginning
date of the overpayment period in both claims began on June 1, 2007. Although there was no
ending date listed for appellant’s son’s enrollment at Contra Costa College in May 2007, the
Office determined that the ending date was May 31, 2007. It determined that January 19, 2008
was the ending date of the overpayment period under OWCP File No. xxxxxx898 as the
reduction of appellant’s compensation to the two-thirds rate became effective on
January 20, 2008. The Office determined that June 15, 2008 was the ending date of the
overpayment period under OWCP File No. xxxxxx106 as there was no verification of appellant’s
son’s full-time student status prior to his enrollment as a full-time student during the summer at
Contra Costa College.4 An overpayment worksheet stated that, under OWCP File No.
xxxxxx898, appellant received compensation at the three-fourths rate totaling $10,951.00 when
she should have received compensation at the two-thirds rate totaling $9,727.75. This resulted in
a $1,223.25 overpayment. Under OWCP File No. xxxxxx106, appellant received compensation
at the three-fourths rate totaling $18,935.28 when she should have received compensation at the
two-thirds rate totaling $16,844.07. This resulted in a $2,091.21 overpayment. The Office found
that appellant was at fault in creating the overpayments because she failed to provide evidence to
establish that her son was a full-time student during the periods in question. Appellant was
advised that she could request a telephone conference, a final decision based on the written
evidence only or a prerecoupment hearing within 30 days if she disagreed that the overpayment
occurred with the amount of the overpayment or if she believed that recovery of the overpayment
should be waived. The Office requested that she complete an accompanying overpayment
recovery questionnaire (Form OWCP-20) and submit financial documents. Appellant did not
respond.
By decision dated October 30, 2008, the Office finalized the overpayment in the amount
of $2,091.21 and fault for the period June 1, 2007 to June 15, 2008 under OWCP File
No. xxxxxx106. It ordered repayment by deducting $319.00 every four weeks from appellant’s
continuing compensation.
In an October 31, 2008 decision, the Office finalized the overpayment in the amount of
$1,223.25 and fault for the period June 1, 2007 to January 19, 2008 under OWCP File
No. xxxxxx898. It ordered repayment in full.
4

The Office noted that appellant’s compensation was reduced to the two-thirds rate effective August 3, 2008.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act5 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.6 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.7
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay.8 Under section 8110 of the Act, an employee is entitled to
compensation at the augmented rate of three-fourths of her weekly pay if she has one or more
dependents. Section 8110(a)(3) of the Act provides that a child is considered a dependent if he
or she is under 18 years of age, is over 18 but, is unmarried and incapable of self-support because
of a physical or mental disability or is an unmarried student under 23 years of age who has not
completed four years of education beyond the high school level and is currently pursuing a fulltime course of study at a qualifying college, university or training program at an accredited
institution.9 If a claimant receives augmented compensation during a period where she has no
eligible dependents, the difference between the compensation she was entitled to receive at the
two-thirds compensation rate and the augmented compensation received at the three-fourths rate
constitutes an overpayment of compensation.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received overpayments in the amount of $2,091.21 under
OWCP File No. xxxxxx106 and $1,223.25 under OWCP File No. xxxxxx898. Appellant
received compensation for her accepted employment-related left thumb ganglion and left wrist
tendinitis and right thumb MCC and wrist sprain. The Office paid compensation benefits at the
statutory three-fourths rate as she claimed a dependent son. Appellant continued to receive
compensation at this rate after her son turned 18 years old on June 21, 2005. The record contains
no evidence that he was disabled due to a mental or physical condition. Appellant’s son would
not qualify as a dependent unless he was an unmarried student attending an approved full-time
course of study, had not completed four years of post high-school education, and had not
completed the academic semester in which he became 23 years old.11

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8105(a); see also Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

9

Id. at §§ 8110(a)(1) and 8101(17); 20 C.F.R. § 10.405.

10

Id. at § 8110(a)(3); see Ralph P. Beachum, Sr., supra note 8.

11

Id.

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EN1618 forms signed by the vice principal of West Contra Costa Adult Education Center
on November 10 and 17, 2005 and appellant’s June 21, 2008 EN1618 form documented that her
son was enrolled in school from September 6, 2005 to June 1, 2006 following his 18th birthday.
Appellant’s June 21, 2008 EN1618 form which stated that her son was enrolled at Contra Costa
College from August 2005 to May 2007 and that he attended summer school from June 16 to
July 24, 2008 as a full-time student was confirmed on June 23, 2008 by the director of
admissions and records. The EN1618 form signed by the registrar of Pensacola Christian
College on February 14, 2007 and a transcript from the school reported that her son was enrolled
from January 22 to May 9, 2007. However, the registrar stated that the school was not an
accredited or a licensed institution. Appellant’s January 16, 2008 EN1618 form which reported
her son’s enrollment in a U.S. Navy technical school from July 3, 2007 to June 2008 has not
been verified. The Board finds that, as appellant’s son was no longer a full-time college student
as of June 1, 2007, she was not entitled to receive compensation at the augmented three-fourths
rate under either of the accepted claims.12
The Office, however, continued to pay appellant compensation at the augmented threefourths rate through January 19, 2008 under OWCP File No. xxxxxx898. It reduced her
compensation to the two-thirds rate effective January 20, 2008. The Office paid augmented
compensation through June 15, 2008 under OWCP File No. xxxxxx106, one day prior to
appellant’s son’s enrollment in summer school at Contra Costa College. It paid her $10,951.00
from June 1, 2007 to January 19, 2008 instead of $9,727.75 for a claimant without dependents
under OWCP File No. xxxxxx898. The Office paid appellant $18,935.28 from June 1, 2007 to
June 15, 2008 instead of $16,844.07 for a claimant without dependents under OWCP File
No. xxxxxx106. There is no contrary evidence regarding the fact and the amount of the
overpayment. The Board finds that appellant received overpayments of $1,223.25 under OWCP
File No. xxxxxx898 and $2,091.21 under OWCP File No. xxxxxx106, the difference between the
amount of compensation that she actually received and the amount of compensation that she was
entitled to as she received compensation at the augmented rate from June 1, 2007 to January 19,
2008 and June 1, 2007 to June 15, 2008, respectively.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act13 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.14 Thus, the Office may not waive the overpayment of compensation
unless appellant was without fault.15 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.16
12

5 U.S.C. § 8101(17); see Denise L. Crouch, 57 ECAB 161 (2005).

13

5 U.S.C. § 8129(b).

14

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

15

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

16

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

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On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which
he or she knew or should have known was incorrect.”17
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”18
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayments of $2,091.21
and $1,223.25 because she failed to provide information regarding her son’s student status
during the periods June 1, 2007 to June 15, 2008 under OWCP File No. xxxxxx106 and June 1,
2007 to January 19, 2008 under OWCP File No. xxxxxx898. The Board finds that appellant
knew or should have known that this information was material to her receipt of compensation
benefits.
The Office sent appellant requests on November 7, 2005 and December 28, 2007 for
documentation regarding her son’s student status and provided the appropriate form to fill out to
verify his student status since June 21, 2005, the date he turned 18 years old. The letters made
clear that the Office would use the information requested on the enclosed forms to decide
whether she was entitled to receive compensation for a dependent or whether her benefits should
be adjusted.
On January 25, 2008 the Office sent appellant a letter explaining the deficiency in her
claim for augmented compensation and afforded her 60 days to provide such documentation.
Again, the Office informed appellant that her compensation would be adjusted to the two-thirds
basic rate if such documentation was not received. Warnings that changes in her compensation
would occur if her son failed to qualify as a student underscored the importance of this
information and appellant’s responsibility to disclose it. Appellant only submitted verified
information regarding her son’s status as a student prior to June 1, 2007. The Board finds that
she was at fault in creating the overpayments that arose from her failure to furnish information
which she knew or should have known to be material. Appellant’s fault in the matter precludes

17

20 C.F.R. § 10.433(a).

18

Id. at § 10.433(b); Diana L. Booth, supra note 16.

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any consideration of waiver of recovery of the overpayment. The law requires the Office to
recover the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information will be used to
determine the repayment schedule, if necessary.19
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to the Office 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, the Office
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.20
ANALYSIS -- ISSUE 3
With respect to the recovery of an overpayment, the Board notes that its jurisdiction is
limited to reviewing those cases where the Office seeks recovery from continuing compensation
benefits under the Act.21 Regarding the recovery of the $2,091.21 overpayment under OWCP
File No. xxxxxx106 from appellant’s continuing compensation, the Board notes that she did not
provide any financial information which would assist the Office in determining the amount to
deduct from future compensation payments in order to recoup the overpayment. The Office set
the rate of recovery as $319.00 from each continuing compensation payment until the benefit
was paid in full. The Board finds that this was reasonable in the absence of any financial
documentation proving otherwise.22 Regarding the recovery of the $1,223.25 overpayment
under OWCP File No. xxxxxx898, the Board notes that appellant is no longer receiving wageloss compensation. The Board finds, therefore, that it does not have jurisdiction with respect to
recovery of the overpayment under the Debt Collection Act.23
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,091.21 for the period June 1, 2007 to June 15, 2008 and $1,223.25 for the period June 1,
2007 to January 19, 2008 due to the payment of augmented compensation. The Board further
19

20 C.F.R. § 10.438.

20

Id. at § 10.441(a).

21

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

22

On appeal, appellant submitted a listing of her current bills. As the Board’s review is limited to evidence in the
case record at the time the Office made its decision over which the Board has jurisdiction, the Board cannot review
this evidence submitted for the first time on appeal. D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007);
20 C.F.R. § 501.2(c).
23

Cheryl Thomas, supra note 21.

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finds that the Office properly determined that appellant was at fault in creating the overpayments
and, therefore, ineligible for waiver. The Board also finds that the Office properly directed
recovery of the $2,091.21 overpayment at the rate of $319.00 every four weeks from appellant’s
continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the October 31 and 30, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 18, 2009
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, WEDGWOOD
STATION, Seattle, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1130
Issued: November 23, 2011

Oral argument October 19, 2011

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

JURISDICTION
On April 4, 2011 appellant, through her attorney, filed a timely appeal from the
March 15, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective July 29, 2010.
On appeal, appellant, through counsel, contends that the medical opinion of the impartial
medical examiner is deficient in that it is equivocal, unsupported by adequate rationale and
internally inconsistent. Counsel further contended that the claims examiner failed to discuss all
of the medical evidence of record in its notice of proposed termination and termination decision.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before this Board. The facts as set forth in the Board’s
prior decision are hereby incorporated into this decision.2 The relevant facts are set forth below.
On May 31, 2005 appellant, then a 46-year-old letter carrier, sustained injury to her right
leg after carrying heavy weight over uneven terrain on wet ground for extended hours. By letter
dated July 20, 2005, her claim was accepted for right tibialis tendinitis. Appellant’s claim was
also accepted for contracture of right tendon, right ankle sprain/strain and joint derangement of
the right ankle and foot. By letter dated May 3, 2006, OWCP authorized surgery for right fusion
of foot bones, right revision of calf tendon and right incision of heel bone. On May 16, 2006
appellant underwent a gastrocenemius recision of the right leg and navicular cuneiform
arthodesis of the right foot. OWCP terminated appellant’s wage-loss and medical benefits
effective February 21, 2008. In a decision dated November 25, 2008, the Board reversed
OWCP’s decision finding that the termination was improper as there remained an unresolved
conflict between appellant’s treating physiatrist, Dr. Jeffrey C. Christensen, and Dr. R. David
Bauer, the Board-certified orthopedic surgeon who conducted the second opinion. The Board
found that the impartial medical report by Dr. Paul Williams, a Board-certified orthopedic
surgeon, was insufficient to terminate benefits as his opinion was speculative and indicated that
appellant had remaining residuals from her authorized surgery.3
Upon return of the case record, OWCP listed in a February 8, 2010 statement of accepted
facts (SOAF), that the physical duties of appellant’s job included lifting and caring for up to 20
pounds, standing 5 hours a day and simple grasping 8 hours a day. The SOAF also noted that
appellant could lift/carry up to 70 pounds, kneel 15 minutes per day, climb ½ hour per day,
pull/push ½ hour per day, reach above the shoulders ½ hour per day, drive a motor vehicle 1
hour per day, sit 2 hours per day, bend/stoop 3 hours per day, twist 4 hours per day and walk 5
hours per day.
On May 19, 2010 OWCP referred appellant to Dr. John Burns, a Board-certified
orthopedic surgeon, for a new impartial medical examination. In a June 3, 2010 report,
Dr. Burns listed appellant’s diagnoses as bilateral pes planovalgus with generalized ligamentous
laxity and status post arthrodesis of the navicular first cuneiform and navicular second cuneiform
joint on the right foot. Although he noted that surgical intervention was not warranted, he stated
that any need for surgery would be the result of the natural progression of pes planovalgus and
not the employment injury. Dr. Burns opined that he saw nothing that would prevent appellant
from performing her date-of-injury job as a letter carrier. On an attached work capacity
evaluation, he advised that appellant should avoid climbing.
On June 24, 2010 OWCP issued a notice of proposed termination of appellant’s wageloss compensation. By decision dated July 29, 2010, it terminated appellant’s compensation
effective that date.
Appellant requested an oral hearing before an OWCP hearing representative. At the
hearing held on November 22, 2010, appellant’s attorney contended that, although Dr. Burns
2

Docket No. 08-1138 (issued November 25, 2008).

3

Id.

2

indicated that he could find nothing that would prevent appellant from performing her date-ofinjury job as a letter carrier, the statement of accepted facts indicated that appellant must climb
one-half hour per day and that Dr. Burns indicated that appellant should avoid climbing.
Appellant’s counsel contended that this was an internal contradiction and reduced the value of
Dr. Burn’s report. Appellant also testified with regard to her job duties and indicated that she
had to climb for more than 45 minutes a day.
By decision dated March 15, 2011, OWCP’s hearing representative affirmed the July 29,
2010 termination of benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.6 Where the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.7
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report.8 However, when the impartial medical specialist is unable to clarify or
elaborate on the original report or if a supplemental report is also vague, speculative or lacking in
rationale, OWCP must submit the case record and a detailed statement of accepted facts to
another impartial specialist for the purpose of obtaining a rationalized medical opinion on the
issue.9

4

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

5

Id.

6

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

7

Manuel Gill, 52 ECAB 282 (2001).

8

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Raymon K. Ferrin, Jr., 39 ECAB 736 (1988); R.G., Docket
No. 11-79 (issued September 9, 2011).
9

Nancy Keenan, 56 ECAB 687 (2005); Talmadge Miller, 47 ECAB 673 (1996).

3

ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits. A conflict in medical opinion arose between appellant’s treating
physician, Dr. Christensen, and the second opinion physician, Dr. Bauer. OWCP properly
referred appellant to Dr. Burns for an impartial medical examination, pursuant to 5 U.S.C.
§ 8123(a). The issue to be resolved was whether appellant could return to work without
restrictions. Dr. Burns noted that there was nothing that would prevent appellant from
performing her date-of-injury job as a letter carrier; however, in the work capacity evaluation, he
advised that appellant should avoid climbing. The SOAF clearly indicated that appellant’s job
required her to climb for one-half hour a day and appellant testified that she had to climb for a
longer period of time. Dr. Burns stated that appellant could return to work without restrictions
but also indicated that she should avoid climbing. The report of Dr. Burns is internally
inconsistent. Because Dr. Burns’ report was not wholly responsive to the question asked, OWCP
did not meet its burden of proof to terminate benefits in this case.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective July 29, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2011 is reversed.
Issued: November 23, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Stevenson, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0416
Issued: July 13, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On December 15, 2014 appellant filed an application for review of an October 31, 2014
decision of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx709,
which denied his claim. The appeal was docketed as No. 15-416.
In the October 31, 2014 decision, OWCP denied appellant’s claim noting that he had not
established that his hearing loss was causally related to his employment. The record reflects that
appellant was granted a prior schedule award for four percent bilateral hearing loss in 2002 while
performing his employment duties as a conveyor car dump operator, in claim number
xxxxxx181. The record before the Board contains certain documents from claim number
xxxxxx181, however, the complete record for claim number xxxxxx181 is not before the Board.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. There is medical and factual evidence that are germane to the issues pending on appeal
before the Board in claim number xxxxx709. OWCP procedures provide for combining files in
claims pertaining to the same area of the body and where correct adjudication depends on crossreferencing between files.1 In the instant appeal, for a full and fair adjudication, the OWCP
1

Federal (FECA) Procedure Manual, Part 2 -- File Maintenance and Management, Doubling Case Files, Chapter
2.4000.8(c) (February 2000).

claims pertaining to appellant’s hearing loss should be combined. This will allow the Board to
consider all relevant evidence in deciding appellant’s claim.
The case will be remanded to OWCP to combine case files for claim numbers xxxxxx709
and xxxxxx181. Following this and such other development as deemed necessary, OWCP shall
issue an appropriate merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the October 31, 2014 decision be set aside and the
matter remanded to OWCP for further proceedings consistent with this order.
Issued: July 13, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2