United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 08-1662
Issued: December 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from December 31, 2007 and April 18,
2008 merit decisions of the Office of Workers’ Compensation Programs denying his
occupational disease claim. 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 sustained a hearing loss in the performance of duty
causally related to factors of his federal employment.

FACTUAL HISTORY
On September 13, 2006 appellant, then a 61-year-old materials expeditor, filed an
occupational disease claim alleging that he sustained hearing loss due to factors of his federal
employment. He did not stop work. In an accompanying statement, appellant related:
“My job as a forklift operator at CCAD required that I transport materials all
around the depot. The areas of high noise would include the cleaning shop where
they sandblast and use the high pressure air hose. Also the hangers create noise
from the sheet metal workers using air hammers and air pressure drills. The
aircrafts around the hangers also create high levels of noise. The blade shop uses
the whirl tower to test the blades which creates high noise levels. Also at the
blade shop they use air hammers and sandblast the blades. I also deliver to the
plating shop where the generators downstairs create high noise frequencies. The
cowling shop is also a noise hazard because of the rivets they shoot into sheet
metal. When delivering the parts to each shop, I sometimes stay for 30 minutes or
more which exposes me to the noise for long periods of time. I always use the
proper hearing protection required by CCAD.”
Appellant described his work history and noise exposure. He worked for the employing
establishment as a forklift operator for 32 years. Appellant also worked from August 1969 to
September 1971 for a steel company.
By letter dated September 26, 2006, the Office requested that the employing
establishment provide the noise survey reports for each site where appellant worked, the sources
and period of noise exposure for each location and whether he wore ear protection.
On October 17, 2006 the employing establishment controverted the claim. It noted that a
preemployment hearing test dated June 5, 1974 revealed hearing loss. The employing
establishment also indicated that appellant had previously worked as a steel laborer.
In a statement dated October 19, 2006, Richard Luna, a supervisor, denied that appellant
went into areas which required hearing protection or had been issued hearing protection.
Mr. Luna stated:
“To the best of my knowledge I am unable to provide the job site where the
exposure occurred. The forklift operators are not station[ary] at any site long
enough. They are constantly on the move.
“To the best of my knowledge it would be difficult to determine the source of
machinery because they do not go into work centers. There are hearing protection
signs posted on doors and we do not deliver inside those perimeters. We deliver
just outside of these areas. The exposure per hour varies because it depends on
the numbers of pallets they drop off or pick up as well [as] the number per
day/week.”

2

The record contains audiograms from the employing establishment dated May 7, 1974,
May 19, 1983, March 13, 1986, April 6, 1987 and March 22, 1998.1 The May 19, 1983
audiogram provided the reason for the audiogram as Code 2, or a reference audiogram following
exposure to noise duties. The individual performing the audiogram noted that appellant had
previously been issued earplugs and that he was counseled on hearing protection.
By decision dated February 1, 2007, the Office denied appellant’s claim on the grounds
that he failed to establish the occurrence of the alleged noise exposure.
On February 22, 2007 appellant requested an oral hearing. At the telephonic hearing,
held on October 9, 2007, appellant’s representative noted that appellant moved around to
different areas during the course of his employment, including blasting areas and locations where
rivets were driven into sheet metal. Appellant maintained that he entered high noise areas and
locations requiring hearing protection when picking up and delivering items. His representative
contended that the noise levels around the doors of the depot exceeded hazardous decibel levels.
By decision dated December 31, 2007, the Office hearing representative affirmed the
February 1, 2007 decision. She found that appellant had not met his burden of proof to establish
that he entered hazardous noise areas while delivering materials.
In a June 17, 2005 electronic mail message, an employee recommended that the doors
around A-34 and A-35 be closed to help reduce noise exposure for employees in the transmission
shop.
On March 13, 2008 appellant requested reconsideration. He disputed Mr. Luna’s
assertion that he did not enter areas with hazardous noise levels. Appellant contended that the
hearing protection signs on the doors “were not posted until recently.”
By decision dated April 18, 2008, the Office denied modification of its December 31,
2007 decision.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.2 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.3
Proceedings under the Federal Employees’ Compensation Act are not advsersarial in
nature, nor is the Office a disinterested arbiter. While the claimant has the burden to establish

1

The record also contains an audiogram dated June 27, 2006.

2

Stanley K. Takahaski, 35 ECAB 1065 (1984).

3

See John W. Butler, 39 ECAB 852, 858 (1988).

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his or her claim, the Office also has a responsibility in the development of the evidence.4 This is
particularly true when the evidence is of the character normally obtained from the employing
establishment or other government source.5 20 C.F.R. § 10.118(a) states: “The employer is
responsible for submitting to [the Office] all relevant and probative factual and medical evidence
in its possession, or which it may acquire through investigation or other means. Such evidence
may be submitted at any time.”
The Office’s procedure manual provides:
“It is generally accepted that hearing loss may result from prolonged exposure to
noise levels above 85 decibels. Acoustic trauma may, however, result from
decibel levels below 85 decibels if exposure is sufficiently prolonged. [The
Office] therefore does not require that the claimant show exposure to injurious
noise in excess of 85 decibels as a condition to approval of the claim.”6
ANALYSIS
Appellant filed an occupational disease claim alleging that he sustained a hearing loss
due to noise exposure while working as a forklift driver. The Office denied his claim on the
grounds that he did not establish that he was exposed to hazardous noise during the course of his
federal employment. Appellant worked at the employing establishment as a forklift operator
beginning in 1974. On May 19, 1983, March 13, 1986, April 6, 1987 and March 22, 1998 he
underwent audiograms performed by the employing establishment to monitor any hearing loss.
The May 19, 1983 test specified that it was given as a result of “exposure in noise duties.” The
Office requested that the employing establishment provide detailed information about appellant’s
noise exposure, including copies of noise level surveys for each work location, the sources and
periods of noise exposure and whether he wore ear protection. In response, a supervisor
generally alleged that appellant moved around to many locations but did not enter hazardous
noise areas. The employing establishment did not, as requested, submit any noise level surveys
or provide the specific decibel levels to which he was exposed as a forklift operator from 1974 to
the present.
The Office shares responsibility in the development of the evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.7 The Office failed to obtain information about the duration and level of
appellant’s noise exposure during the course of his federal employment prior to denying his
claim. The Board will remand the case for the Office to obtain the dates and periods of his noise
exposure at the employing establishment, the specific decibel levels to which he was exposed
and whether hearing protection was provided.
4

See Claudia A. Dixon, 47 ECAB 168 (1995).

5

R.E., 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008); Willie A. Dean, 40 ECAB 1208 (1989).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(a)
(October 1990).
7

See R.E., supra note 5.

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Additionally, regarding the Office’s finding that appellant had not established exposure to
hazardous noise, the Office’s procedure manual provides:
“It is generally accepted that hearing loss may result form prolonged exposure to
noise levels above 85 decibels. Acoustic trauma may, however, result from
decibel levels below 85 decibels if exposure is sufficiently prolonged. [The
Office] therefore does not require that the claimant show exposure to injurious
noise in excess of 85 decibels as a condition to approval of the claim.”8
Consequently, regardless of the specific decibel level of exposure, the Office must
consider whether the employment-related noise exposure was sufficiently prolonged to result in
acoustic trauma.9 Such a question is medical in nature and should be resolved by a Boardcertified otolaryngologist. The Office’s procedure manual directs the Office to refer appellant
for audiological evaluation and otological examination unless a reliable medical report is already
in the record.10 Upon remand, the Office should obtain the pertinent factual evidence, prepare a
statement of accepted facts and refer appellant for an otological and audiological evaluation.
CONCLUSION
The Board finds that the case is not in posture for decision.

8

Supra note 6.

9

Eufrosino T. Torrado, Docket No. 95-1208 (issued February 14, 1997).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a)(1) (October 1990).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 18, 2008 and December 31, 2007 are set aside and the case
is remanded for further proceedings consistent with this decision of the Board.
Issued: December 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 16-0962
Issued: December 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On April 6, 2016 appellant filed a timely appeal from March 3 and 8, 2016 merit
decisions 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 terminated appellant’s compensation as she
refused an offer of suitable work under 5 U.S.C. § 8106(c)(2); (2) whether appellant received an
overpayment of compensation in the amount of $10,943.93 because she forfeited compensation
for the period March 1 to November 30, 2015; and (3) whether she was at fault in the creation of
the overpayment and thus not entitled to waiver.
FACTUAL HISTORY
On September 11, 2014 appellant, then a 29-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left leg, back,
1

5 U.S.C. § 8101 et seq.

breast, and hip in a motor vehicle accident. She stopped work on September 11, 2014. OWCP
accepted the claim for neck, lumbar, and thoracic sprain and paid appellant compensation for
total disability beginning October 27, 2014.
Appellant received medical treatment following her injury from Dr. Thomas J. Schroeder,
specializing in family medicine. In a report dated May 21, 2015, Dr. Schroeder diagnosed
strains of the cervical, thoracic, and lumbar muscles, right shoulder sprain, post-traumatic
sacroilitis, and post-traumatic headaches. He found that appellant could not perform her usual
employment and might need vocational rehabilitation service. Dr. Schroeder opined that
appellant had reached maximum medical improvement and had restrictions of no lifting over 10
pounds and no reaching overhead, bending, and twisting.
On April 6 and 20, May 18, and June 15, 2015 appellant filed claims for compensation
(Form CA-7) for wage loss from March 21 to June 12, 2015 due to her work injury. The forms
advised that she must report any and all earnings from employment, self-employment, or
involvement in a business enterprise for which she received a salary, wages, income, or payment
of any kind during the period(s) claimed, and that fraudulently concealing employment or failing
to report income may result in forfeiture of compensation benefits and/or criminal prosecution.
Appellant indicated on the forms that she had not worked during the claimed periods.
On June 15, 2015 Dr. Anbu K. Nadar, a Board-certified orthopedic surgeon and OWCP
referral physician, diagnosed sprains of the neck, and thoracic and lumbar spine. He found that
appellant could not resume her usual employment, but could work four hours per day in a
sedentary position lifting, pushing, and pulling up to 10 pounds.
OWCP, on August 20, 2015, referred appellant to a vocational rehabilitation counselor
for vocational rehabilitation services.
On November 11, 2015 appellant underwent a functional capacity evaluation (FCE). The
FCE found that she could perform the physical requirements of a mail carrier performing work
with medium physical demands. It indicated that appellant could occasionally lift up to 30
pounds from the floor to her waist and 25 pounds from her waist to shoulder, carry up to 25
pounds, push 30 pounds, and pull 48 pounds.
In a Form EN1032 signed November 30, 2015, appellant advised that she had not worked
for an employer and had not been self-employed for the preceding 15-month period. The
EN1032 forms instructed her to report all employment for which she received a salary, wages,
income, sales commissions, piecework, or payment of any kind. The forms also indicated that
appellant should report all self-employment or involvement in business enterprises, including
(but not limited to) farming, sales work, operating a business, and providing services in exchange
of money, goods, or other services. The forms contained certification clauses, which informed
her of the consequences of failing to accurately report her employment activities, such as being
subjected to criminal penalties and losing the right to receive workers’ compensation.
The employing establishment, on December 3, 2015, offered appellant a modified
position as a rural carrier associate. The work hours were from 7:30 a.m. until 4:00 p.m. four
days a week. The duties of the position included standing and lifting up to 30 pounds for 2 hours
per day casing mail and loading and unloading a vehicle, pushing and pulling under 30 pounds
for 15 minutes twice a day, driving to deliver mail for 6 hours per day, and walking to deliver
2

parcels as needed. Appellant declined the offered position, providing as a reason her physical
condition.
On December 9, 2015 OWCP requested that Dr. Nadar review the FCE and provide
updated work restrictions.
On December 10, 2015 the vocational rehabilitation counselor requested that
Dr. Schroeder advise whether appellant could work in a medium capacity and whether she could
perform the activities found by the FCE of occasional lifting of 30 pounds or 25 pounds from the
floor to waist, carrying up to 25 pounds from the waist to shoulder, pushing 30 pounds, and
pulling 48 pounds. In response, Dr. Schroder indicated by checkmark “yes” that she could
perform work in a medium physical demand category.
The employing establishment’s Office of the Inspector General (OIG), on January 13,
2016, asserted that an investigation determined that appellant had engaged in work activity as a
sales consultant for Pure Romance products beginning March 1, 2015, but that she failed to
disclose the activity on OWCP forms. It advised that she purchased $7,778.80 in Pure Romance
products from March 1 through October 29, 2015 and that Facebook pages showed her attending
training sessions as a consultant and advertising for clients. Appellant also rode on a motorcycle
while receiving disability compensation.
On January 28, 2016 OWCP notified appellant of its proposed termination of her
compensation as she had refused a temporary light-duty assignment as a modified rural carrier
associate working 32 hours per week. It found that her wages in the position would meet or
exceed those in her date-of-injury position, and thus she would not be entitled to further
compensation for wage loss. OWCP discussed its regulations at 20 C.F.R. § 10.500(a) and
advised appellant that her entitlement to wage-loss compensation would be terminated under
section 10.500(a) if she did not accept the temporary offered assignment or provide a written
explanation of her reasons for not doing so within 30 days of the date of the letter.
By letter dated January 29, 2016, OWCP notified appellant of its preliminary
determination that she received an overpayment of $10,943.93 because she failed to report
earnings on a Form EN1032 covering the period March 1 to November 30, 2015. It indicated
that appellant forfeited all compensation during that period. OWCP reviewed the evidence
submitted on January 13, 2016 from the OIG and found that it established that she had failed to
report business activities as a consultant for Pure Romance. It calculated the overpayment by
multiplying appellant’s daily compensation rate by the amount of days in the period of the
forfeiture. OWCP further advised her of its preliminary finding that she was at fault in the
creation of the overpayment as she had concealed employment activity and earnings from
March 1 to November 30, 2015. It requested that appellant complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, OWCP
notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
On February 17, 2016 appellant requested a decision based on the written evidence. She
disagreed with fact and amount of overpayment and requested waiver. Appellant completed an
overpayment recovery questionnaire.

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By decision dated March 3, 2016, OWCP found that appellant received an overpayment
of compensation for the period March 1 to November 30, 2015 based on her forfeiture of
compensation.2 It further determined that she was at fault in creating the overpayment as she
failed to advise OWCP that she was running a business. OWCP found that appellant should
forward full payment of the amount of the overpayment.
In a decision dated March 8, 2016, OWCP terminated appellant’s compensation and
entitlement to a schedule award under 5 U.S.C. § 8106(c)(2). It found that the December 3, 2015
job offer was within the restrictions set forth by Dr. Schroeder on December 10, 2015 and the
results of the FCE.
On appeal appellant contends that her work selling Pure Romance products resulted in an
economic loss and she did not understand the ramifications of not reporting her business. She
argues that she was not overpaid.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 Section 8106(c)(2) of FECA4 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.5 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.6 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.7
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee has
the burden of showing that such refusal or failure to work was reasonable or justified.8 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.9

2

OWCP referred to a January 29, 2016 forfeiture decision; however, the record does not contain a forfeiture
decision.
3

Linda D. Guerrero, 54 ECAB 556 (2003).

4

5 U.S.C. § 8101 et seq.

5

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

Ronald M. Jones, 52 ECAB 190 (2000).

7

Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a); see supra note 6.

9

Id. at § 10.516.

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Section 10.500(a) of the Code of Federal Regulations provides:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents
[her] from earning the wages earned before the work-related injury. For example,
an employee is not entitled to compensation for any wage loss claimed on a
[Form] CA-7 to the extent that evidence contemporaneous with the period
claimed on a [Form] CA-7 establishes that an employee had medical work
restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was
available. Similarly, an employee receiving continuing periodic payments for
disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing [establishment] had
offered, in accordance with OWCP procedures, a temporary light-duty assignment
within the employee’s work restrictions. (The penalty provision of 5 U.S.C.
§ 8106(c) will not be imposed on such assignments under this paragraph).”10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for neck, lumbar, and thoracic sprain and paid her
wage-loss compensation for total disability beginning October 27, 2014. The employing
establishment offered her a position on December 3, 2015 as a modified rural carrier associate
working 32 hours per week. On January 28, 2016 OWCP notified appellant that it proposed to
reduce her compensation to zero as the employing establishment offered her a temporary
position as a part-time modified rural carrier that accommodated her work-related limitations.11
It advised her of the provisions of 20 C.F.R. § 10.500(a) that compensation was only available
while her wages precluded her from earning the same wages as before her injury. By decision
dated March 8, 2016, OWCP terminated appellant’s compensation and entitlement to a schedule
award as she refused an offer of suitable work under section 8106(c)(2).
The Board finds that OWCP failed to follow its established procedures under section
8106(c) following the December 3, 2015 job offer from the employing establishment. Essential
due process principles require that a claimant have notice and an opportunity to respond prior to
termination under section 8106(c).12 OWCP did not follow these procedures and thus did not
afford appellant the protections set forth by Board case law and OWCP’s regulations.13 Prior to
terminating compensation under section 8106(c), it must advise the claimant that the offered
position is suitable and that she has 30 days to accept the job or provide a written explanation of
her refusal. OWCP must further advise her of the penalty provision of section 8106(c).14
10

Id. at § 10.500(a).

11

It is unclear from the record whether the position offered by the employing establishment was temporary.

12

See Sandra K. Cummings¸54 ECAB 493 (2003).

13

20 C.F.R. § 10.516; see also Juan A. Dejesus, 54 ECAB 721 (2003) (essential due process principles require
that a claimant have notice and an opportunity to respond prior to termination under section 8106(c)).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter. 2.814.4(d)
(June 2013).

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Instead, it issued a letter informing appellant of its proposed reduction of her compensation to
zero under the provisions of section 10.500(a). Appellant was not afforded any formal notice of
a termination under section 8106(c) until she received the March 8, 2016 termination decision.
As noted, OWCP may not impose the penalty provision of section 8106(c) to a job assignment
found appropriate under section 10.500(a).15 The procedural requirements for invoking 5 U.S.C.
§ 8106(c) are different from those for invoking 20 C.F.R. § 10.500(a).16
The Board accordingly finds that OWCP failed to follow its established procedures with
respect to termination of compensation under section 8106(c). The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.17 Appellant was not provided
notice or an opportunity to respond with respect to a determination that she refused an offer of
suitable work, and thus, OWCP improperly terminated her eligibility for wage-loss and schedule
award compensation based upon a refusal of suitable work under section 8106(c)(2).18
LEGAL PRECEDENT -- ISSUE 2
Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his or her earnings, forfeits
his or her right to compensation with respect to any period for which the affidavit or report was
required.19
OWCP’s implementing regulation provides:
“If an employee knowingly omits or understates any earnings or work activity in
making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment, or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.”20
OWCP’s procedures, regarding issuing a penalty decision, provides:
“Advising the Claimant. When the evidence shows that the claimant had earnings
and knowingly did not report them on Form EN1032, the Senior Claims Examiner
15

See supra note 10.

16

Compare Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter.
2.814.4, 2.814.5, 2.814.6 (June 2013) (sets forth procedures for terminating compensation under 5 U.S.C. § 8106(c)
for a refusal of suitable work) and Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter. 2.814.9 (June 2013) (sets forth procedure for reducing or terminating compensation under 20 C.F.R.
§ 10.500(a) for refusal of a temporary light-duty assignment; explains that the penalty language of 5 U.S.C.
§ 8106(c) cannot be applied).
17

See J. Adrian Osborne, 48 ECAB 556 (1997).

18

See 20 C.F.R. § 10.516; see also S.M., Docket No. 16-1913 (issued April 11, 2017).

19

5 U.S.C. § 8106(b).

20

20 C.F.R. § 10.529.

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should prepare a formal decision declaring the compensation forfeit. The
forfeiture decision must clearly address the period of activity and how the
determination was made that the claimant knowingly made an omission or
understatement. Note also that when composing the decision, the Senior Claims
Examiner should not rely solely on investigative summaries; rather, the Senior
Claims Examiner should cite specific evidence….”21
OWCP procedures indicate that it should issue a preliminary overpayment decision with
the forfeiture decision.22
Regarding overpayments that result from a new decision on entitlement, OWCP’s
procedures further provide:
“Regardless of whether the claimant is ‘with fault or without fault,’ a new
determination on entitlement which results in an overpayment (e.g., an amended
schedule award, the correction of an incorrect pay rate, the forfeiture of
compensation) entitles the claimant to request reconsideration and a hearing
and/or review by the Employees’ Compensation Appeals Board (ECAB) on the
entitlement issue. Therefore, a separate formal decision on the claimant’s
entitlement to benefits, with full appeal rights, should be issued along with the
preliminary overpayment finding. Form CA-2201 and Form CA-2202 are
preliminary finding notices, and are not proper for use in place of the entitlement
decision on the issue that resulted in the overpayment.”23 (Emphasis in the
original).
ANALYSIS -- ISSUE 2
OWCP, in its March 3, 2016 overpayment decision, determined that appellant received a
$10,943.93 overpayment of compensation from March 1 to November 30, 2015 due to the fact
that she failed to report her employment activity and earnings on a Form CA-1032 covering this
period and thus forfeited compensation. However, it failed to issue a forfeiture decision for this
period prior to issuing its final overpayment decision. OWCP procedures provide that a new
determination on entitlement that results in an overpayment, such as a finding of forfeiture,
entitles appellant to a separate decision on the entitlement issue with full appeal rights.24
However, it failed to issue a separate forfeiture decision with appeal rights prior to issuing its
overpayment decision. As OWCP failed to comply with its procedures, it has not met its burden
of proof to show an overpayment of $10,943.93 from March 1 to November 30, 2015 due to a

21

Federal (FECA) Procedural Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter
2.1402.8(b) (May 2012).
22

Id. at Chapter 2.1402.8(e).

23

Federal (FECA) Procedural Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a) (May 2004).
24

Id.; see also B.S., Docket No. 07-0564 (issued October 10, 2007).

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forfeiture as it has not yet issued a separate formal decision finding a forfeiture of compensation
for the period in question.25
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation as she
refused an offer of suitable work under 5 U.S.C. § 8106(c)(2). The Board further finds that
OWCP has not established that appellant received an overpayment of compensation in the
amount of $10,943.93 because she forfeited compensation for the period March 1 to
November 30, 2015.26
ORDER
IT IS HEREBY ORDERED THAT the March 8 and 3, 2016 decisions of the Office of
Workers’ Compensation Programs are reversed.
Issued: December 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

25

See B.S., id.

26

In view of the Board’s finding regarding the overpayment of compensation, the issue of whether appellant was
at fault in the creation of an overpayment is moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 07-736
Issued: July 3, 2007

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 16, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ nonmerit decision dated November 20, 2006 which denied her request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error. Because more than one year has elapsed from the last merit decision dated
March 12, 1996 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128, on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On August 29, 1989 appellant, then a 49-year-old mail handler, filed a traumatic injury
claim, alleging that she injured her back, elbows and left side when she fell in the performance of

duty. The Office accepted appellant’s claim for cervical and lumbar strains and post-traumatic
headaches on October 28, 1989. Appellant filed claims for recurrence of disability on
October 25, 1989 and September 4, 1990. The Office authorized compensation benefits and
entered appellant on the periodic rolls on September 1, 1990.
The employing establishment referred appellant for a fitness-for-duty examination with
Dr. Geoffrey M. Miller, a Board-certified orthopedic surgeon, who submitted a report dated
September 15, 1990 finding that appellant could return to full duty. Appellant’s attending
physician’s Dr. Cranford L. Scott, a Board-certified internist, and Dr. A. Newton Woodard1
continued to support appellant’s total disability for work. The Office found that there was a
conflict of medical opinion evidence regarding the extent of appellant’s disability and referred
her for an impartial medical examination with Dr. John H. Buckner, a Board-certified orthopedic
surgeon.2 In his July 22, 1991 report, Dr. Buckner found that appellant could return to full duty
with a lifting restriction due to her underlying obesity.
In a letter dated January 30, 1992, the Office proposed to terminate appellant’s
compensation benefits referring to Dr. Buckner as the impartial medical examiner. The Office
found that the weight of the medical opinion evidence rested with Drs. Buckner and Miller. By
decision dated March 9, 1992, the Office terminated appellant’s compensation and medical
benefits effective April 5, 1992. Appellant requested reconsideration and the Office denied
modification of its prior decisions on July 8, 1992 finding that Dr. Buckner had resolved the
conflict between Drs. Woodard and Miller.
She again requested reconsideration on
September 11, 1992 and the Office denied modification of its prior decision on
November 16, 1992. The Office found that Dr. Buckner was an impartial medical examiner and
his opinion was entitled to special weight. Appellant requested reconsideration on December 28,
1992 and submitted additional medical evidence. The Office denied modification of the
March 9, 1992 decision finding that the additional evidence submitted by appellant was not
sufficient to create a conflict with that of the impartial medical examiner, Dr. Buckner.3
By decision dated August 21, 1995, the Office denied appellant’s claim for a schedule
award. Appellant requested reconsideration of this decision on January 22, 1996 and by decision
dated March 12, 1996, the Office denied modification of its August 21, 1995 decision.
In a letter dated May 8, 1996, appellant’s attorney alleged error on the part of the Office
in using Dr. Miller as a second opinion physician and Dr. Buckner as an impartial medical
examiner. He requested reconsideration on May 21, 1996. By decision dated July 22, 1996, the
Office found that the arguments were not sufficient to require it to reopen appellant’s claim for
consideration of the merits under section 8128(a) of the Federal Employees’ Compensation Act.

1

The Board is unable to ascertain any Board-certification or area of expertise for Dr. Woodard.

2

The Office did not specify the physicians involved in the conflict and did not provide appellant with a letter
explaining that a conflict had arisen. Instead it indicated to appellant that “expert medical opinion” was needed.
3

In a letter dated April 7, 1993, appellant inquired whether Dr. Buckner was a second opinion physician or an
impartial medical examiner.

2

Appellant requested reconsideration on April 22, 1997 and submitted additional evidence
and argument in support of her claim. By decision dated September 23, 1997, the Office found
that appellant had not established clear evidence of error. Appellant appealed this decision to the
Board. In its December 15, 1999 decision,4 the Board found that appellant’s allegations that the
memorandum accompanying the 1992 termination decision was “erroneous and speculative;”
that all the medical evidence was not considered; that the Office did not address all of her
employment-related conditions; that the Office did not make adequate factual findings, that the
district medical adviser did not review her claim and did not establish clear evidence of error on
the part of the Office. The facts and circumstance of the claim as set fourth in the Board’s prior
decision are adopted herein by reference.
Following the Board’s December 15, 1999 decision, appellant requested a schedule
award on March 6, 2003. She objected to Dr. Buckner’s examination and findings on
May 28, 2003. In response to the Office’s inquiry regarding which appeal right she wished to
pursue, appellant indicated that she wanted an oral hearing on August 26, 2003. By decision
dated July 8, 2004, the Branch of Hearings and Review denied appellant’s request for an oral
hearing as untimely as she had previously requested reconsideration of the issues in her claims.5
On September 20, 2004 appellant stated that she was appealing the decisions dated
July 8, 2004 and from September 4, 1990 to the present. She alleged that both Dr. Miller and
Dr. Buckner were employing establishment physicians.6 Appellant requested a schedule award
on May 2, 2005. On January 19, 2006 the Office informed her via telephone that no schedule
award was payable. In a letter dated January 27, 2006, the Office informed appellant that she
had received the maximum compensation payable from September 1, 1990 through
April 4, 1992. The Office listed the initial merit decisions regarding disability and schedule
award and stated that appellant’s appeal rights had expired.
In a telephone memorandum dated March 20, 2006, appellant again requested a schedule
award and insisted that the referee examination was invalid because Dr. Buckner had previously
seen her for an employing establishment fitness-for-duty examination. The claims examiner
noted that appellant would submit a written request for reconsideration with a statement of how
the Office made clear error.
Appellant requested reconsideration on August 9, 2006 and stated that she was requesting
reconsideration of a letter she received in May 2006. She discussed the amounts that she was
paid, addressed the examinations by Drs. Miller and Buckner and described her employment
injury. Appellant stated that her current conditions were fibromyalgia, chronic pain disorder,
carpal tunnel syndrome, osteoarthritis and chronic depression. The Office responded on
October 5, 2006 and informed appellant that the letter she received was not a final decision and
had no appeal rights.
4

Docket No. 98-751 (issued December 15, 1999).

5

As this decision dated July 8, 2004 was issued more than one year prior to the date of appellant’s appeal to the
Board on January 16, 2007 the Board will not address this issue on appeal. 20 C.F.R. § 501.3(d)(2).
6

The Office did not respond to this letter.

3

Appellant telephoned the Office on October 20, 2006 and stated that the physician that
the Office used as an impartial medical specialist had previously performed a fitness-for-duty
examination. She indicated that the Office issued an incorrect decision in March 1992. By
decision dated November 20, 2006, the Office referenced the August 24, 2006 letter from
appellant and noted that the January 27, 2006 letter was not a formal decision and did not have
appeal rights.7 The Office stated that during a telephone conversation on October 20, 2006
appellant raised a separate issue of whether Dr. Buckner had previously examined her for the
employing establishment. The Office found that Dr. Miller had performed a fitness-for-duty
examination for the employing establishment and that the Office had selected Dr. Buckner to
resolve a conflict of medical evidence. The Office stated, “It was appropriate to send you to an
impartial medical examination based on Dr. Miller’s report, but not to create a conflict in
medical opinion evidence.” The Office noted that it was error to refer to Dr. Buckner as an
impartial medical examiner, but found that the weight of the medical evidence rested with
Dr. Buckner’s report as he was an appropriate Board-certified specialist. The Office found that
appellant had not established clear evidence of error and denied her request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of the Act8 does not entitle a claimant to a review of an Office decision
as a matter of right.9 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.10 The Office, through regulations
has imposed limitations on the exercise of its discretionary authority. One such limitation is that
the Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.11 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted the Office under 5 U.S.C. § 8128(a).12
The Office’s regulations require that an application for reconsideration must be submitted
in writing13 and define an application for reconsideration as the request for reconsideration
“along with supporting statements and evidence.”14 The regulations provide:

7

The Office did not address any of the statements or arguments raised by appellant in her August 9, 2006 request
for reconsideration, limiting itself to the issues raised by her October 20, 2006 telephone call. As the Office did not
address these issues, the Board may not consider them for the first time on appeal. 20 C.F.R. § 501.2(c).
8

5 U.S.C. § 8128(a).

9

Thankamma Mathews, 44 ECAB 765, 768 (1993).

10

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

11

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
12

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 9 at 769; Jesus D. Sanchez, supra note 10 at 967.

13

20 C.F.R. § 10.606.

14

20 C.F.R. § 10.605.

4

“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent decision. The application must establish, on its face that such
decision was erroneous.”15
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.16
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.17 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.18 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.19 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.20 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.21 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.22 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.23
ANALYSIS
Appellant requested reconsideration in August 2006. This request occurred more than
one year following the March 12, 1996 merit decision denying her claim for a schedule award
and more than one year following the February 4, 1993 decision denying her claim for

15

20 C.F.R. § 10.607(b).

16

Thankamma Mathews, supra note 9 at 770.

17

Id.

18

Leona N. Travis, 43 ECAB 227, 241 (1991).

19

Jesus D. Sanchez, supra note 10 at 968.

20

Leona N. Travis, supra note 18.

21

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

22

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

23

Gregory Griffin, supra note 11 at 458, 466.

5

continuing disability.
The Office properly determined that appellant’s request for
reconsideration was untimely.
Appellant alleged that Dr. Buckner was not properly designated as an impartial medical
examiner at the time of the Office’s March 9, 1992 decision terminating her compensation and
medical benefits and that this failure constituted clear evidence of error. The Office stated in its
November 20, 2006 decision, that there was not a conflict of medical opinion evidence in the
record at the time of Dr. Buckner’s July 22, 1991 report.24 The Office noted that Dr. Buckner’s
report was not, therefore, entitled to the special weight accorded a duly designated impartial
medical examiner. The Office concluded, however, that his report represented the weight of the
medical evidence and was sufficient to terminate appellant’s compensation and medical benefits
as he was a Board-certified orthopedic surgeon. The Office noted that appellant’s physician
Dr. Scott, was a Board-certified internist and Dr. Woodard was not Board-certified.
As noted above, to establish clear evidence of error, the evidence submitted must not only
be of sufficient probative value to establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. While appellant has
established a clear procedural error, the Office’s designation of Dr. Buckner as an impartial
medical specialist, she has not demonstrated such substantive defects in Dr. Buckner’s report so
that this report should not have been relied upon by the Office and was insufficient to meet the
Office’s burden of proof to terminate her compensation benefits and deny her claims for
additional compensation and medical benefits on and after April 5, 1992. As appellant has failed
to establish clear evidence of error, the Office properly declined to reopen her claim for
consideration of the merits.
CONCLUSION
The Board finds that appellant has failed to submit sufficient evidence to establish clear
evidence of error and that the Office properly denied her request for merit review.

24

The Office’s procedure manual provided as of December 1993 that a physician employed by or under contract
to the employing establishment may not be considered a second opinion specialist for the purposes of creating a
conflict in medical evidence. However, such a report must receive due consideration and if its findings differ
materially from those of the treating physician, a second opinion referral is appropriate. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.9.b, (December 1993). The
current provision provides that a physician performing fitness-for-duty examinations for the employing
establishment should not be considered a second opinion physician for the purposes of creating a conflict in medical
evidence. Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.9.b. (June 2002).

6

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2007
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

7


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

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

Docket No. 10-1212
Issued: February 23, 2011

Case Submitted on the Record

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

JURISDICTION
On March 30, 2010 appellant filed a timely appeal of the February 24, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 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 the Office properly determined that appellant received a
$3,456.00 overpayment of compensation for the period July 10 to October 29, 2005; and
(2) whether the Office properly determined that appellant was at fault in creating the
overpayment of compensation.
FACTUAL HISTORY
On November 18, 1988 appellant, then a 37-year-old mail handler, sustained a right knee
injury at work. The Office accepted dislocation of the right patella and patellofemoral pain

syndrome and authorized an open lateral release. Appellant worked intermittently after the
injury. She accepted a part-time job on September 21, 1995 and stopped work on July 1, 2004.1
In an April 13, 2005 letter, the Office notified appellant that she returned to work as a
mail handler on September 21, 1995 but abandoned the position on July 1, 2004 without a valid
reason. It noted that she remained out of work and received compensation based upon a loss of
wage-earning capacity for four hours per day. The Office advised that the position remained
available and that the job constituted suitable work. Appellant was informed that she had 30
days to accept the position or provide reasons for refusing. She was informed that the provision
of 5 U.S.C. § 8106(c)(2) provides for termination of compensation if an employee is shown to
have abandoned a suitable job.
On May 23, 2005 the Office advised appellant that it considered the reasons given by her
for abandoning the position and found them to be invalid. It afforded her 15 additional days to
report for duty and advised her of the provisions of section 8106(c)(2).
In a June 28, 2005 decision, the Office terminated appellant’s monetary compensation,
effective July 10, 2005, on the grounds that she abandoned suitable work.2
In a November 10, 2005 file memorandum, the Office noted that appellant’s
compensation was terminated on July 10, 2005 but she continued to receive wage-loss benefits
through November 10, 2005. Appellant was paid for 112 days and an overpayment of $3,456.00
was created. In a November 10, 2005 manual adjustment form, the Office calculated that a
$3,456.00 overpayment occurred from July 10 to October 29, 2005. In a November 16, 2005
telephone call memorandum, it discussed the overpayment with appellant. Appellant advised
that she received compensation checks after the Office terminated her compensation on July 10,
2005 and had cashed the checks.
On November 16, 2005 the Office informed appellant that it made a preliminary
determination that she had received a $3,456.00 overpayment of compensation from July 10 to
October 29, 2005 because she received wage-loss benefits after the Office terminated her
monetary compensation. It found that she was paid $3,456.00 in compensation from July 10 to
October 29, 2005. The Office explained how the overpayment was calculated and found that
appellant was at fault in creating the overpayment because she accepted payment that she knew
or reasonably should have known to be incorrect.
On December 12, 2005 appellant submitted an overpayment questionnaire and requested
a decision based on a review of the written record. She submitted a 2004 federal tax return and
asserted that she was not at fault in accepting the overpayment and that it would be a financial
hardship for her to repay the debt. Appellant noted that she stopped working based on a doctor’s
recommendation. She received compensation starting July 10, 2005 and believed that the Office
1

After appellant returned to part-time work, the Office reduced her compensation to reflect her loss of wageearning capacity based on her ability to work four hours per day.
2

Appellant did not appeal this decision to the Board. She requested reconsideration several times with the most
recent Office decision being an August 24, 2006 decision denying modification of the prior decision.

2

was giving her additional time for reconsideration of her claim. Appellant also submitted a
December 2, 2005 pay stub.
In a December 21, 2005 decision, the Office found that appellant received a $3,456.00
overpayment of compensation from July 10 to October 29, 2005 for which she was at fault in
creating. The overpayment occurred because she received wage-loss benefits after the Office
terminated her compensation for abandoning suitable work pursuant to 5 U.S.C. § 8106(c). The
Office found that she was at fault in creating the overpayment because she accepted payments
that she knew or reasonably should have known to be incorrect.
On January 6, 2006 appellant requested waiver contending that it would be a hardship to
repay the debt because she had no income. She submitted federal tax returns for the period 1999
to 2004 and requested her compensation benefits be recalculated to include her dependent
grandchild.
On March 17, 2006 appellant appealed to the Board. In a February 9, 2007 order, the
Board remanded the case for reconstruction of the record. The Board instructed the Office to
issue an appropriate decision to protect appellant’s appeal rights.3
On July 28, 2008 the Office informed appellant that it had preliminarily determined that
she received a $3,456.00 overpayment from July 10 to October 29, 2005 because she received
wage-loss compensation after the Office terminated her compensation. It found that she was
paid $3,456.00 in compensation from July 10 to October 29, 2005. Appellant received $864.00
in compensation for each of the following four pay periods: July 10 to August 6, August 7 to
September 3, September 4 to October 1 and October 2 to 29, 2005. The Office found that
appellant was at fault in creating the overpayment because she accepted payment that she knew
or reasonably should have known to be incorrect.
In a September 2, 2008 decision, the Office found that appellant received a $3,456.00
overpayment of compensation from July 10 to October 29, 2005 for which she was at fault in
creating. It indicated that she did not respond to the notice of preliminary overpayment.
In a letter dated September 12, 2008, appellant disagreed with the overpayment and fault
finding and asserted that she was unable to work and remained entitled to compensation for her
work injury. She submitted an overpayment recovery questionnaire dated August 26, 2008 and
requested a prerecoupment hearing. In a separate statement, appellant noted she brought the
overpayment to the Office’s attention and thought she was entitled to receive the compensation
payments until the error was corrected. She believed that the Office was providing basic
assistance because of the permanent nature of her injury and she was unable to repay the debt.4
On November 14, 2008 appellant appealed to the Board and reasserted her arguments
regarding her ability to work and to repay the overpayment. In an October 21, 2009 order, the
3

Docket No. 06-973 (issued February 9, 2007).

4

In an October 15, 2008 decision, the Office denied appellant’s request for a hearing noting that a final
overpayment decision is not subject to the hearing provision of 5 U.S.C. § 8124(b).

3

Board remanded the case to the Office for further development. The Board noted that, after the
November 16, 2005 preliminary overpayment finding, the Office received responsive evidence,
including an overpayment questionnaire and a 2004 tax return, on December 19, 2005. The
Board noted that the Office’s December 21, 2005 final overpayment decision found that
appellant did not submit responsive evidence. The Board noted that the December 21, 2005
overpayment decision did not review the evidence submitted by appellant and received by the
Office on December 19, 2005. The Board remanded the matter to the Office to consider all the
evidence submitted at the time of the December 21, 2005 and September 2, 2008 decisions.5
On November 24, 2009 the Office advised appellant of the Board’s action and the
pending overpayment matter. It requested that she complete and submit a new/current
overpayment questionnaire so that the Office could further consider the issues of fault and
waiver. The Office also requested appellant submit any supporting documents including tax
returns, bank account statements and other records that support the income and expenses listed.
It provided appellant 30 days to submit the evidence.
In a February 24, 2010 decision, the Office found that appellant received a $3,456.00
overpayment of compensation from July 10 to October 29, 2005 because she received wage-loss
compensation after the Office terminated her compensation benefits for abandoning suitable
work pursuant to 5 U.S.C. § 8106(c). It found that she was at fault in creating the overpayment
because she accepted payment that she knew or reasonably should have known to be incorrect.
The Office noted reviewing the December 12, 2005 and August 28, 2006 overpayment
questionnaires as well as the federal tax returns for the period 1999 to 2004. It stated that it
would request full payment of $3,456.00 within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) 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
Section 8106(c)(2) of the Act8 states that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for her is not entitled to compensation.9 The implementing regulations provide that a
partially disabled employee who refuses to seek suitable work, or refuses to or neglects to work
5

Docket No. 09-796 (issued October 21, 2009).

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8106(c)(2).

9

Id.

4

after suitable work is offered to or arranged for him or her, is not entitled to compensation,
including compensation for a schedule award under 5 U.S.C. § 8107.10
ANALYSIS -- ISSUE 1
In a June 28, 2005 decision, the Office terminated appellant’s monetary compensation
effective July 10, 2005 based on her abandonment of suitable work. Appellant continued to
receive wage-loss compensation for partial disability, four hours per day, through
October 29, 2005. Based on the termination of compensation under section 8106(c)(2), she was
not entitled to wage-loss compensation beginning July 10, 2005. Thus, an overpayment
occurred.
The Office determined that from July 10 to October 29, 2005 appellant received
$3,456.00 wage-loss compensation. As appellant was not entitled to wage-loss compensation
beginning July 10, 2005, this amount represents an overpayment of compensation. She received
four compensation checks during this period, each in the amount of $864.00. Appellant noted
that she received the compensation checks and cashed them. The Board finds that the Office
properly determined that appellant received an overpayment of compensation in the amount of
$3,456.00.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides that adjustment or recovery by the United States may
not be made when 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.11 No waiver of an overpayment is possible if the claimant is at fault in creating
the overpayment.12
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.13
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provide that 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

10

See 20 C.F.R. § 10.517.

11

5 U.S.C. § 8129(b).

12

Gregg B. Manston, 45 ECAB 344 (1994).

13

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116 (1999).

5

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.14
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. For it to establish that appellant was with fault in creating the overpayment of
compensation, the Office must establish that, at the time appellant accepted the compensation
checks in question, she knew or should have known the payments were incorrect.15
As noted, the Office erroneously issued wage-loss benefits in the amount of $864.00
during four payments issued July 10 to October 29, 2005 after her monetary compensation was
terminated pursuant to 5 U.S.C. § 8106(c) for abandoning suitable work. Even if the
overpayment resulted from negligence on the part of the Office, this does not excuse the
employee from accepting payments she knew or should have known were incorrect.16 On
April 13 and May 23, 2005 the Office advised appellant that a person who abandoned suitable
work was not entitled to compensation. In a June 28, 2005 decision, it terminated further
monetary compensation effective July 10, 2005. The decision clearly stated that wage-loss
benefits were terminated as of that date. The evidence reflects that appellant should have been
aware that, as of July 10, 2005, she was not entitled to receive additional wage-loss
compensation.
Appellant noted in the overpayment questionnaires dated December 12, 2005 and
August 26, 2008 that she received compensation after July 10, 2005 but believed that the Office
was providing basic assistance to her because of her injury. This was not a reasonable belief in
light of the language of the June 28, 2005 decision. The Office contacted appellant on
November 16, 2005, and she acknowledged receiving the compensation checks and cashing them
after the Office had terminated her compensation. The evidence establishes that appellant knew
or should have known that the payments were incorrect as she was not entitled to receive wageloss compensation after her benefits were terminated.
For these reasons, the Office properly found that appellant accepted wage-loss
compensation from July 10 to October 29, 2005 which she knew or should have known to be
incorrect. As appellant was at fault under the third fault standard, outlined above, recovery of
the $3,456.00 overpayment of compensation may not be waived.17
On appeal, appellant reasserted her belief that the Office was providing basic assistance
because of the permanent nature of her disability. She also noted that she experienced severe
14

20 C.F.R. § 10.433(b).

15

See Claude T. Green, 42 ECAB 174, 278 (1990).

16

See Russell E. Wageneck, 46 ECAB 653 (1995).

17

As the Office did not direct recovery of the overpayment from continuing compensation payments, the Board
does not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004).

6

financial hardship and could not repay the debt.18 As noted, even though the overpayment may
have resulted from negligence on the part of the Office, this does not excuse her from accepting
payments she knew or should have known to be incorrect.19 The evidence establishes that
appellant was at fault in creating the overpayment of compensation.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from July 10 to
October 29, 2005 for which she was at fault in creating.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 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

18

Appellant also submitted new evidence on appeal. The Board’s jurisdiction is limited to the evidence that was
before the Office at the time it issued its final decision; therefore, the Board is unable to review evidence submitted
by appellant on appeal. See 20 C.F.R. § 501.2(c)(1).
19

See Russell E. Wageneck, supra note 16.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, MANAGER
PROCESSING & DISTRIBUTION CENTER,
Tallahassee, FL, Employer
__________________________________________

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

Docket No. 17-1798
Issued: February 23, 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 21, 2017 appellant filed a timely appeal from a May 22, 2017 merit decision
and an August 2, 2017 nonmerit 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 appellant met her burden of proof to establish a back
condition causally related to factors of her federal employment; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that she submitted the proper documentation to establish an
employment-related back injury that resulted in her resignation from the employing
establishment and need for surgery.
FACTUAL HISTORY
On April 14, 2017 appellant, then a 54-year-old mail handler assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained a strain caused or aggravated
by factors of her federal employment. She noted that she first became aware of her condition on
March 30, 2017 and realized its relationship to her federal employment on April 11, 2017. On
the reverse side of the claim form the employing establishment noted that appellant stopped work
on April 12, 2017, but did not report her claimed injury to a supervisor until April 14, 2017.
OWCP, by letter dated April 19, 2017, advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for FECA benefits. It noted
that it had not received any other documentation with appellant’s claim form. OWCP attached a
development questionnaire, asking appellant to provide a detailed description of the
employment-related activities she believed contributed to her condition, as well as to provide
information regarding the frequency and duration of the activities. It afforded appellant 30 days
to submit the requested information.
In a May 1, 2017 letter, the employing establishment controverted appellant’s claim,
contending that she did not sustain an injury while performing repetitive motion at work. It
asserted that, during an initial investigation of her claim, she could not determine when her
injury occurred and supposed that it occurred on March 30, 2017. The employing establishment
further asserted that appellant waited approximately 11 days before seeking medical care and
reporting her claimed injury. It noted that, during its investigation, she reported having
preexisting sciatica, which she sustained while serving in the United States Coast Guard.
On May 8, 2017 appellant submitted an April 14, 2017 letter describing the development
of her back condition. She claimed that she experienced swelling, stiffness, and pain in her back
while working as a mail handler assistant. Appellant related that she told her coworkers about
her back pain and continued to work. She maintained that, after work, her pain worsened, she
purchased over-the-counter medication and other treatment products for her condition.
Appellant noted that she was treated at the Veterans Affairs (VA) Medical Center with injections
in her backside, prescribed medication, and placed off work until April 14, 2017.
Appellant submitted a letter dated April 14, 2017 in which the employing establishment
advised her of the type of medical documentation needed to support her claim. She also
submitted the fifth page of a document entitled “Employee Rights and Responsibilities for
Occupational Disease/Form CA-2” dated April 14, 2017.
An April 11, 2017 note from the Lake City, Florida VA Medical Center, containing an
illegible signature, noted that appellant was placed off work for two days through April 13, 2017
due to an injury.

2

In a May 2, 2017 attending physician’s report (Form CA-20), Dr. Adamar Munoz, an
attending emergency medicine, noted the date of injury as March 30, 2017. Under history of the
employment injury, she reported that appellant had back pain exacerbation. Dr. Munoz checked
a box marked “yes” indicating that she had a history or evidence of concurrent or preexisting
injury or disease or physical impairment. She diagnosed chronic back pain and checked a box
marked “yes” indicating that the diagnosed condition was caused or aggravated by the described
employment activity. Dr. Munoz noted pushing and lifting heavy boxes as appellant’s
employment activities. She further noted that appellant was totally disabled from work from
March 30 to April 14, 2017. Dr. Munoz released her to return to regular work on April 14, 2017.
An unsigned letter dated May 2, 2017 from the Department of Veterans Affairs, North
Florida/South Georgia Veterans Health System informed appellant that a lower back x-ray
showed mild degenerative disc disease with small osteophyte formation at Tl0-T1l, Tl1-T12, and
L2-L3 levels. The letter also indicated that the x-ray showed mild facet joint arthropathy at L3L4 and L4-L5 levels and mild degenerative arthritic changes in bilateral sacroiliac joints.
By decision dated May 22, 2017, OWCP denied appellant’s claim for an occupational
disease because she failed to establish the factual component of fact of injury. It noted that she
had not identified the direct cause of her claimed injury. Additionally, OWCP found that
appellant failed to submit medical evidence containing a medical diagnosis in connection with
work events.
On July 5, 2017 appellant requested reconsideration. She contended that Dr. Munoz’s
May 2, 2017 Form CA-20 report established that her preexisting back sciatica was aggravated by
her work duties. Appellant submitted letters dated April 10 and 12, 2017 in which the employing
establishment addressed her request for leave under the Family Medical Leave Act (FMLA) and
its denial of her request. She also submitted a June 9, 2017 letter from the employing
establishment, which advised her to request light-duty work if she was unable to perform her
full, regular duties.
On a Florida Workers’ Compensation form with a partial date, Markira Stewart, a
physician assistant, noted July 22, 2017 as the date of accident and that appellant was seen on
July 25, 2017. She advised that appellant could return to activities with restrictions related to her
back and right shoulder. Ms. Stewart indicated that no clinical services were indicated at that
time.
Appellant resubmitted the May 2, 2017 letter from the Department of Veterans Affairs,
and April 11, 2017 excuse note from the Lake City, FL, VA Medical Center. She also
resubmitted her April 14, 2017 letter, Dr. Munoz’s May 2, 2017 Form CA-20 report, and the
employing establishment’s April 14, 2017 letter.
By decision dated August 2, 2017, OWCP denied reconsideration of the merits of
appellant’s claim. It found that she did not submit a pertinent new and relevant argument and did
not show that OWCP erroneously applied or interpreted a point of law not previously considered
by OWCP.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 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, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, and that any disability
or specific condition for which compensation is claimed is 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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors or conditions which he believes caused or adversely affected a condition for
which compensation is claimed.5
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet her burden of proof to establish a back
condition causally related to factors of her federal employment.
Appellant’s claim form generally stated that she sustained a strain caused or aggravated
by factors of her federal employment. However, she did not present a clear factual statement
identifying specific employment factors or conditions alleged to have caused or contributed to
the presence or occurrence of her claimed medical condition, nor has she explained how those
work factors caused or aggravated her claimed condition.
On April 19, 2017 OWCP informed appellant that the evidence received was insufficient
to establish that she experienced any employment factors that were alleged to have caused an
injury. Appellant was asked to provide a detailed description of the employment-related
activities she believed contributed to her condition and how often she performed the described
activities. OWCP received an April 14, 2017 letter from appellant which described the back
symptoms she experienced while working as a mail handler assistant and the medical treatment
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

5

T.B., Docket No. 17-0444 (issued May 5, 2017).

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she received. However, appellant still did not clearly identify any specific work duties as the
cause of her claimed condition or explain how work duties caused or aggravated her condition.
The Board notes that, while Dr. Munoz, in her May 2, 2017 Form CA-20 report, attributed
appellant’s diagnosed chronic back pain to pushing and lifting heavy boxes at work, there is no
evidence that she had direct knowledge of appellant’s employment duties. Under history of
injury, Dr. Munoz only related appellant’s account of an exacerbation of back pain. As appellant
did not provide a factual statement describing in detail the events that caused the claimed injury
and the circumstances surrounding the injury, she has not met her burden of proof.6
As appellant has not established the factual component of her claim, the Board will not
address the medical evidence with respect to causal relationship.7
On appeal appellant contends that she submitted the proper documentation to establish an
employment-related back injury that resulted in her resignation from the employing
establishment and need for surgery. As found above, she did not submit sufficient evidence to
establish employment factors that caused or contributed to her claimed back condition.
Accordingly, appellant failed to establish fact of injury in the performance of duty.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.8 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).9 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.10 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.11

6

D.D., 57 ECAB 734 (2006); P.G., Docket No. 15-1345 (issued August 23, 2016).

7

See B.G., Docket No. 16-1454 (issued November 22, 2016).

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.608(a).

10

Id. at § 10.606(b)(3).

11

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
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).
On July 5, 2017 appellant requested reconsideration of OWCP’s May 22, 2017 decision
which denied her occupational disease claim. The underlying issue on reconsideration is factual
in nature - whether appellant established factors of her federal employment that caused or
contributed to her claimed back condition.
In her June 23, 2015 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of reconsideration. The new letters from the employing establishment regarding
appellant’s FMLA leave request and work assignment are not relevant to the underlying factual
issue. These documents do not address the factual issue of whether appellant established factors
of her federal employment that caused or contributed to her claimed back condition. Similarly,
appellant submitted a new medical report from a physician assistant, which does not address the
factual issue of whether she established work duties that caused or contributed to her claimed
back condition. Evidence which does not address the particular issue under consideration does
not constitute a basis for reopening a case.12
Appellant resubmitted the May 2, 2017 letter from the Department of Veterans Affairs,
an April 11, 2017 excuse note from the Lake City, FL, VA Medical Center, her April 14, 2017
letter, Dr. Munoz’s May 2, 2017 Form CA-20 report, and the employing establishment’s
April 14, 2017 letter. Evidence or argument that repeats or duplicates evidence previously of
record has no evidentiary value and does not constitute a basis for reopening a case.13
The Board accordingly finds that appellant failed to meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a back
condition causally related to factors of her federal employment. The Board further finds that
OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

12

See K.T., Docket No. 15-1916 (issued February 1, 2016).

13

D.K., 59 ECAB 141 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the August 2 and May 22, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 23, 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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