United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Babylon, NY, Employer
__________________________________________

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Appearances:
Kevin Card, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1648
Issued: September 18, 2017

Oral Argument June 14, 2016

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

JURISDICTION
On February 12, 2015 appellant, through his representative, filed a timely appeal from an
August 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from August 22, 2014, the date of OWCP’s last decision, was
February 18, 2015. Since using February 26, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark or other carrier’s date marking is
considered the date of filing. The date of the U.S. Postal Service carrier’s date marking is February 12, 2015,
rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUES
The issues are: (1) whether OWCP met its burden of proof to establish that appellant
forfeited his right to compensation for the period September 30 to November 22, 2013;
(2) whether appellant received a $6,287.29 overpayment of compensation due to the forfeiture of
his right to compensation for the period September 30 to November 22, 2013; and (3) whether
appellant was at fault in the creation of the $6,287.29 overpayment of compensation, thereby
precluding waiver of recovery of the overpayment of compensation.
FACTUAL HISTORY
On August 9, 2013 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on July 29, 2013, he sustained an injury to his right shoulder
when lifting a heavy package. OWCP accepted his claim for a right biceps tendon rupture.
Appellant stopped work on August 16, 2013 and was paid continuation of pay for the period
August 16 to September 29, 2013.4 OWCP paid appellant disability compensation on the daily
rolls beginning September 30, 2013.
On August 22, 2013 OWCP assigned appellant a field nurse to provide medical case
management services designed to facilitate his return to work. In an undated report covering the
period August 23 to September 23, 2013, the field nurse noted that appellant reported that since
2005, in addition to his federal job, he had worked four hours per day for five days per week as a
custodian for the school district of North Babylon, NY.
In an August 27, 2013 e-mail to an OWCP claims examiner, the field nurse advised that
appellant had a part-time job working four hours per day, five days per week as a custodian for
the school district of North Babylon, NY. The field nurse noted that she advised appellant to
report this information to the claims examiner.
Appellant telephoned OWCP’s claims examiner on September 13, 2013 and advised her
that he wanted to report his “second job and income” to OWCP. He reported that the field nurse
told him that he had to report his second job to OWCP and that “he is doing so via this call.”
During a September 17, 2013 telephone call, appellant told the same OWCP claims examiner
that he had lost income from his part-time nonfederal job due to his July 29, 2013 employment
injury. The claims examiner informed appellant that OWCP would only cover his wage loss up
to 40 hours if his date-of-injury job had a 40-hour per week schedule and advised that he could
contact the U.S. Department of Labor to inquire whether he is eligible to claim unemployment or
disability for the part of his wage loss related to his part-time nonfederal job. She also advised
appellant that on a Form CA-7 “he must provide his other employment information and pay stub
if he had done any work for the period claimed.” Appellant told the claims examiner that he was
temporarily totally disabled due to his July 29, 2013 employment injury and that he did not work
in his part-time nonfederal job after his July 29, 2013 injury.
On October 11, 2013 appellant filed a claim for compensation (Form CA-7) for wage loss
due to his July 29, 2013 employment injury. In Section 2 of the Form CA-7, he indicated that he
was claiming such compensation for the period September 30 to October 11, 2013. Section 3 of
4

On August 22, 2013 appellant underwent OWCP-authorized repair surgery for his right biceps tendon rupture.

2

the Form CA-7 contains the statement, “You must report all earnings from employment (outside
your federal job); include any employment for which you received a salary, wages, income, sales
commissions, piecework, or payment of any kind during the period(s) claimed in Section 2.”
The Form CA-7 also indicates, “Include self-employment, involvement in business enterprises,
as well as service with the military forces.” Section 3 contains a question, “Have you worked
outside your federal job for the period(s) claimed in Section 2?” Next to this question is a “Yes”
box and a place to provide the name, address, dates worked, and type of work if a claimant has,
in fact, worked outside his or her federal job for the period claimed in Section 2. Section 3 also
provides the option of checking a “No” box if the answer is negative to this question and an
instruction to “Go to Section 4” if the “No” box is checked.5 The Form CA-7 contains a warning
that fraudulent concealment of employment or failure to report income may result in forfeiture of
compensation benefits and/or criminal prosecution. On the Form CA-7 he filed on October 11,
2013 (covering the period September 30 to October 11, 2013), appellant answered “No” to the
question in Section 3, “Have you worked outside your federal job for the period(s) claimed in
Section 2?”
Appellant filed a Form CA-7 on October 25, 2013 claiming compensation for the period
October 12 to 25, 2013 in Section 2. This Form CA-7 contains the same language as the
Form CA-7 he filed on October 11, 2013. On this Form CA-7, appellant again answered “No” to
the question, “Have you worked outside your federal job for the period(s) claimed in Section 2?”
In an undated letter received by OWCP on October 30, 2013, appellant noted:
“As you are aware, I am out on compensation due to a biceps tendon repair. This
injury has caused [me] to be unable to work at the Postal Service, in which I am
compensated. Currently, I’m not being compensated for my lost wages at the
North Babylon Union Free School District, in which I’ve been employed since
2005. I contacted New York State Compensation and was told that the U.S.
Department of Labor is responsible for my lost wages at this job, due to the fact
that I was injured at the Postal Service.... Will I be compensated for my lost
wages of my second job? Please reply in writing to my home address.”
Appellant also filed CA-7 forms on November 8, 2013 claiming compensation for the
period October 26 to November 8, 2013 in Section 2, and November 22, 2013 claiming
compensation for the period November 9 to 22, 2013 in Section 2. These CA-7 forms contain
the same language as the Form CA-7 he filed on October 11, 2013. On each of these CA-7
forms, appellant again answered “No” to the question, “Have you worked outside your federal
job for the period(s) claimed in Section 2?”
The record contains documents showing that OWCP paid gross compensation benefits in
the amount of $6,287.29 for the period September 30 to November 22, 2013.6 On November 25,
2013 appellant returned to regular work on a full-time basis with the employing establishment.
5

Section 4 requests information about various matters such as whether there has been a change in the claimant’s
dependents and whether the claimant’s direct deposit information has changed.
6

After deductions for insurance premiums, appellant received $5,807.19 in net compensation for the period
September 30 to November 22, 2013.

3

He also returned to his part-time job as a custodian with the North Babylon Union Free School
District on that date.7
In a “Case Summary Report” dated January 29, 2014, a special agent for the employing
establishment’s Office of the Inspector General (OIG) discussed appellant’s employment as a
part-time custodian in a school in North Babylon Union Free School District. The report
includes several payroll and attendance records from the school district to which the special
agent referred in the body of the report. The special agent reported that the school district
records entitled “After Payroll Transactions for Checks dated between July 29 [to] December 27,
2013” revealed that appellant received several “paid sick leave” payments related to his work as
a custodian through direct deposits of $53.90 on September 20, 2013, $551.16 on October 4,
2013, $551.16 on October 18, 2013, and $488.26 on November 1, 2013.8 He also noted that a
payment record of the school district showed that appellant had received $3,555.20 in gross pay
for the period July 29 to December 27, 2013. A school district document entitled “Attendance
Detail Report for the Period of July 1, 2013 to June 30, 2014” shows that appellant was on
“Sick” status for intermittent dates between September 3 and October 16, 2013 and on “No Pay”
status for intermittent dates between October 17 and November 22, 2013.
In a March 19, 2014 decision, OWCP found that appellant had forfeited his right to
compensation in the amount of $6,287.29 for the period September 30 to November 22, 2013
because he failed to report employment and earnings on CA-7 forms covering this period. It
indicated that appellant had earnings as a custodian during the periods listed on the CA-7 forms
and noted that the wording of the CA-7 forms covering the period September 30 to
November 22, 2013 advised him of the need to report such earnings. OWCP discussed the
content of the CA-7 forms completed by appellant and noted:
“We received a Report of Investigation from the [OIG]. This report provided
evidence of your earnings from the North Babylon Union Free School District for
the period July 29 through December 27, 2013 in the gross amount of $3,555.20.
“The Form CA-7 clearly states ‘Fraudulent concealment of employment or failure
to report income may result in forfeiture of compensation benefits and/or criminal
prosecution.’ The evidence supports that on the Form CA-7 covering the period
of September 30 through November 22, 2013, that you knowingly omitted your
earnings from employment with the North Babylon Union Free School District.
“The evidence of record does not show that you are suffering from any defects
and/or impediments relative to your ability to fully understand the reporting
requirements of the CA-7 forms. You were paid a total of $6,287.29 in gross
compensation for wage loss for the period September 30 through
November 22, 2013. As you knowingly misrepresented your employment and
earnings on the Form CA-7, this compensation must be found to be forfeit.”

7

The field nurse closed the case with appellant in late December 2013.

8

The document also shows a sick leave payment in the form of a direct deposit of $173.75 on
December 13, 2013.

4

In a March 19, 2014 letter, OWCP advised appellant of its preliminary determination of
an overpayment of compensation in the amount of $6,287.29 because he forfeited his right to
compensation for the period September 30 to November 22, 2013 after failing to report earnings
on CA-7 forms covering that period. It also made a preliminary determination that he was at
fault in the creation of the overpayment because he was aware or should have reasonably been
aware that he had failed to report earnings on the CA-7 forms, thereby precluding waiver of
recovery of the overpayment. OWCP advised appellant that he could submit evidence
challenging the fact, amount, or finding of fault and request waiver of the overpayment. It
informed him that he could submit additional evidence in writing or at a prerecoupment hearing
with OWCP’s Branch of Hearings and Review, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. OWCP requested that
appellant complete and return an enclosed financial information questionnaire (Form OWCP-20)
within 30 days even if he was not requesting waiver of recovery of the overpayment.
Appellant completed a Form OWCP-20 on March 29, 2014 in which he challenged the
fact and amount of the overpayment, and fault findings of OWCP’s March 19, 2014 preliminary
overpayment letter and requested a prerecoupment hearing. He listed figures for monthly
income, monthly expenses, and assets and submitted documents further detailing his monthly
expenses. Regarding appellant’s reasons for contesting the overpayment of compensation, he
noted:
“Section 3 of CA-7 asked ‘have you worked.’ I did not. I was not employed. I
was out on workers’ comp from Post Office injury. I was not compensated for
lost earnings at North Babylon school district. I received previously accrued sick
leave. I disclosed my relationship with North Babylon schools to DOL by
telephone. I was told to file unemployment for lost work. I did not receive
unemployment, so I replied to DOL by certified mail hoping for a lost leave buy
back. I was not contacted.”
In a March 25, 2014 letter, received by OWCP on April 4, 2014, an assistant
superintendent for educational services at the North Babylon Union Free School District
indicated that, as a part-time custodian, appellant worked for four hours per day, five days per
week from September through June. She reported that, during the summer months of July and
August, part-time custodians such as appellant worked a total of approximately 20 days and were
only paid for the days they worked. The assistant superintendent noted that appellant worked
sixteen days during July and August 2013, with his last date of work being August 13, 2013.
She noted that, per the report entitled “Attendance Detail Report for the period July 1, 2013 [to]
June 30, 2014,”9 Appellant was granted sick leave effective July 1, 2013, but that school district
policy provides that sick leave is not charged against part-time custodians until September 3,
2013, the date which is considered the beginning of their “work year.” The assistant
superintendent indicated that appellant was paid sick leave for his absences between September 3
and October 16, 2013. She noted that, effective October 17, 2013, appellant had run out of sick
leave and that he went on “no pay” status from October 17, 2013 until he returned to work on
November 25, 2013. The assistant superintendent indicated that appellant was placed back on
the payroll upon his return to work on November 25, 2013.
9

The assistant superintendent attached a copy of this document to her letter.

5

During the prerecoupment hearing, held on July 9, 2014, appellant testified that he
contacted OWCP on two occasions in September 2013 to inquire as to how he could be
compensated for wages he lost from his part-time custodian job for the North Babylon Union
Free School District due to the effects of his July 29, 2013 work injury. He noted that he began
being paid sick leave by the school district for his absences from the custodian job, but that he
sent OWCP a letter requesting reimbursement for lost wages from the custodian job because he
did not want to use this sick leave. Appellant testified that he “was not concealing [his] second
job” as a custodian and that he also reported his work as a custodian to an OWCP-sponsored
field nurse. He provided additional testimony regarding his monthly income, monthly expenses,
and assets.10 Counsel argued that the evidence of record revealed that appellant made no effort
to hide his private employment as a custodian and that he answered the questions on the CA-7
forms in a manner that he believed to be consistent with two telephone conversations he had with
OWCP officials in mid-September 2013. He asserted that these telephone conversations and the
fact that the CA-7 forms required reporting of income from work led appellant to believe that,
because he did not work during the periods covered by the CA-7 forms, he was not required to
report any other income that was not from work.
By decision dated August 22, 2014, an OWCP hearing representative affirmed OWCP’s
March 19, 2014 determination that appellant forfeited his right to compensation in the amount of
$6,287.29 for the period September 30 to November 22, 2013 because he failed to report
earnings and employment activities on CA-7 forms covering this period. The hearing
representative further found that appellant received a $6,287.29 overpayment of compensation
for the period September 30 to November 22, 2013, and that he was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.11 Regarding his
affirmance of OWCP’s forfeiture action, OWCP’s hearing representative noted:
“The record establishes that the claimant knowingly failed to report employment
earnings. The [Board] has held that ‘earnings from employment’ includes
payment for vacation leave.
Clearly ‘earnings from employment’ also
encompasses payment for sick leave. The claimant was paid sick leave referable
to his nonfederal position with the school district for the same period in which he
was paid compensation for total disability under FECA. However, the claimant
did not report such sick leave income to OWCP. The claimant’s letter received
October 30, 2013 made no reference to sick leave. Consequently the claimant
knowingly failed to report employment earnings.”

10

Appellant testified that he had been removed from the employing establishment due to the manner in which he
completed the Forms CA-2 covering the period September 30 to November 22, 2013 and that the termination action
was in the process of being appealed. The record contains a copy of an April 15, 2014 notice of removal from the
employing establishment.
11

OWCP indicated that appellant was at fault in the creation of the overpayment of compensation because he
“knowingly failed to report income from sick leave paid to him in connection with his nonfederal job.”

6

LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA12 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for
which the affidavit or report was required. Compensation forfeited
under this subsection, if already paid, shall be recovered by a
deduction from the compensation payable to the employee or
otherwise recovered under section 8129 of this title, unless
recovery is waived under that section.”13
An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
or she “knowingly” omitted or understated earnings. It is not enough to merely establish that
there were unreported earnings. OWCP procedures recognize that forfeiture is a penalty,14 and,
as a penalty provision, it must be narrowly construed.15 In OWCP’s regulations, “knowingly” is
defined as: “with knowledge, consciously, willfully, or intentionally.”16 OWCP has the burden
of proof to establish that a claimant, either with knowledge, consciously, willfully, or
intentionally, failed to report earnings or employment activities.17 OWCP procedures provide
that an OWCP forfeiture decision should specifically discuss the evidence which supports that
the claimant knowingly failed to report earnings or employment.18 To meet its burden of proof
to establish forfeiture, OWCP is required to examine closely the employee’s activities and
statements. OWCP may meet this burden without an admission by an employee if the

12

5 U.S.C. § 8106(b).

13

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether he or she received compensation for that period for total or
partial loss of wage-earning capacity. The Board explained that a totally disabled employee normally would not
have any employment earnings and therefore a statutory provision about such earnings would be meaningless.
Ronald H. Ripple, 24 ECAB 254, 260 (1973).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

15

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

16

20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268 (1992).

17

Billy J. McCamey, Docket No. 00-2725 (issued June 11, 2002).

18

See supra note 14 at Chapter 2.1402.8d.

7

circumstances of the case establish that he or she failed to reveal fully and truthfully the full
extent of his or her employment activities and earnings.19
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a work-related right biceps tendon rupture on
July 29, 2013. He stopped work on August 16, 2013 and received disability compensation on the
daily rolls beginning September 30, 2013.
On October 11, 2013 appellant filed a Form CA-7 claim for wage-loss compensation due
to his July 29, 2013 employment injury. Appellant filed additional CA-7 forms on October 25,
2013 (covering the period October 12 to 25, 2013), November 8, 2013 (covering the period
October 26 to November 8, 2013), and November 22, 2013 (covering the period November 9
to 22, 2013). On each of these CA-7 forms, appellant answered “No” to the question, “Have you
worked outside your federal job for the period(s) claimed in Section 2?”
On November 25, 2013 appellant returned to regular work on a full-time basis with the
employing establishment and he was taken off the compensation rolls. He also returned to his
part-time job as a custodian with the North Babylon Union Free School District on that date.
Appellant had been working in this nonfederal job since 2005 and also stopped working in this
position after he suffered his federal work injury on July 29, 2013. He did not work in the
custodian position on any dates covered by the CA-7 forms he completed, i.e., the period
September 30 to November 22, 2013.
By decision dated March 19, 2014, OWCP found that appellant had forfeited his right to
compensation because he failed to report employment and earnings on the CA-7 forms covering
this period. It notified him by letter of the same date that it had preliminarily determined that
this forfeiture resulted in an overpayment of compensation in the amount of $6,287.29 for the
period September 30 to November 22, 2013. Appellant requested a prerecoupment hearing, held
on July 9, 2014.
By decision dated August 22, 2014, OWCP’s hearing representative affirmed and
finalized OWCP’s March 19, 2014 forfeiture and overpayment decisions.
The Board finds that OWCP properly determined that appellant received earnings during
the period September 30 to October 11, 2013 (the period covered by the Form CA-7 filed on
October 11, 2013) because he received a sick leave payment in the form of a direct deposit of
$551.16 on October 4, 2013. In addition, OWCP properly determined that appellant received
earnings during the period October 12 to 25, 2013 (the period covered by the Form CA-7 filed on
October 25, 2013) because he received a direct deposit sick leave payment of $551.16 on
October 18, 2013. It also properly determined that appellant received earnings during the period
October 26 to November 8, 2013 (covered by the Form CA-7 filed on November 8, 2013)
because he received a direct deposit sick leave payment of $488.26 on November 1, 2013.
The Board finds, however, that OWCP improperly determined that appellant had
forfeited his compensation for the period September 30 to November 22, 2013 because appellant
19

Terry A. Geer, 51 ECAB 168 (1999).

8

“knowingly” failed to report those earnings or employment activities on his CA-7 forms which
collectively covered this period.20
OWCP did not adequately explain the basis for its determination that appellant
“knowingly” failed to report earnings or employment activities on the CA-7 forms covering the
period September 30 to November 22, 2013. As noted above, OWCP has the burden of proof to
establish that a claimant “knowingly” failed to report earnings or employment within the
meaning of section 8106(b) of FECA, and an OWCP forfeiture decision should specifically
discuss the evidence which supports such a determination.21
OWCP failed to consider appellant’s communications with the claims examiner prior to
completing the CA-7 forms or consider how, under the specific facts of the present case, such
communications might have impacted his understanding of what was required to be included on
the CA-7 forms. Appellant telephoned the OWCP claims examiner on September 13, 2013 and
advised her that he wanted to report his “second job and income” to OWCP. Appellant reported
that the assigned field nurse told him that he had to “report his second job” to OWCP and that
“he is doing so via this call.”22 During a September 17, 2013 telephone call, appellant told the
same OWCP claims examiner that he had lost income from his part-time nonfederal job as a
custodian due to his July 29, 2013 employment injury. The claims examiner advised appellant
that on a Form CA-7 “he must provide his other employment information and pay stub if he had
done any work for the period claimed.”23 The record establishes that appellant did not perform
any work during the period covered by the CA-7 forms he completed and OWCP did not address
how this statement by its claims examiner might have affected appellant’s understanding of what
information had to be included on the CA-7 forms.
Appellant consistently expressed his belief that he made no attempt to conceal his parttime nonfederal employment as a custodian and that he properly completed the CA-7 forms. In a
Form OWCP-20 signed on March 29, 2014, he noted, “Section 3 of CA-7 asked ‘have you
worked.’ I did not. I was not employed. I was out on workers’ comp from Post Office injury... I
disclosed my relationship with North Babylon schools to DOL by telephone.” During the
hearing held on July 9, 2014 before an OWCP hearing representative, appellant testified that he
contacted OWCP on two occasions in September 2013 to inquire as to how he could be
compensated for wages he lost from his part-time custodian job for the North Babylon Union
Free School District due to the effects of his July 29, 2013 work injury. He noted that he began
being paid sick leave by the school district for his absences from the custodian job, but that he
sent OWCP a letter requesting reimbursement for lost wages from the custodian job because he
did not want to use this sick leave. Appellant testified that he “was not concealing second job”

20

See supra notes 12 through 19.

21

See supra notes 18 and 19.

22

In a report covering the period August 23 to September 23, 2013, a field nurse assigned to appellant’s case
related that, since 2005, appellant worked four hours per day, five days per week as a custodian for the North
Babylon Union Free School District in addition to his federal job.
23

In an undated letter received by OWCP on October 30, 2013, appellant again advised OWCP of his work as a
custodian for a nonfederal employer.

9

as a custodian and that he also reported his work as a custodian to an OWCP-sponsored field
nurse.
Furthermore, appellant did not actually work during the periods covered by the CA-7
forms he completed. Section 3 of the CA-7 forms asks, “Have you worked outside your federal
job for the period(s) claimed in Section 2?” Section 3 also provides the option of checking a
“No” box if the answer is negative to this question. Appellant truthfully checked the “No” box
and the form instructs the employee to “Go to Section 4” if the “No” box is checked. The Board
notes that there was no specific space in Section 3 of the CA-7 forms for appellant to report the
sick leave payments he received from his part-time nonfederal employer. Section 3 of the CA-7
forms completed by appellant only contained spaces for providing the name, address, dates
worked, and type of work if a claimant has, in fact, worked outside his or her federal job for the
period claimed in Section 2.
The Board further notes that there is no evidence of record that appellant had any
earnings, sick leave or otherwise, from his nonfederal job during the period November 9
to 22, 2013. Appellant received a sick leave payment through a direct deposit of $488.26 on
November 1, 2013 and a sick leave payment through a direct deposit of $173.75 on
December 13, 2013. He did not receive a sick leave payment or any other form of employmentrelated payment between November 9 and 22, 2013. Because appellant did not have any
earnings during the period November 9 to 22, 2013, there can be no finding that he “knowingly”
failed to report earnings or employment activities during that period. Therefore, OWCP did not
properly invoke the penalty provision under 5 U.S.C. § 8106(b) to find forfeiture of appellant’s
right to compensation for the period November 9 to 22, 2013.24
Given the particular circumstances of appellant’s work situation, the particular wording
of the CA-7 forms, and the various attempts appellant made to inform OWCP of his other job,
the Board finds that OWCP failed to adequately establish that appellant knowingly failed to
report earnings or employment activity.
The facts of the present case are distinguished from cases such as N.D.25 Where the
Board has found that the employee had “knowingly” failed to report earnings and/or employment
activities on CA-7 forms. In the present case, appellant received sick leave payments from his
part-time nonfederal second job for the same periods claimed on the CA-7 forms, but he did not
actually work during the claimed periods covered by the CA-7 forms. Second, the present case
involves communications between appellant and OWCP regarding his second job that were not
present in N.D. and similar cases. These communications negate an intent to omit or knowingly
understate any part of his earnings.26

24

B.S., Docket No. 09-0741 (issued May 14, 2010).

25

N.D., Docket No. 13-0108 (issued September 17, 2014).

26

On appeal before the Board, counsel submitted a brief in which he asserts that appellant did not report the sick
leave payments on the CA-7 forms because the combination of his lack of work during the periods covered by the
CA-7 forms, the communications he had with OWCP officials, and the manner in which the CA-7 forms were
worded led him to believe that he did not have to report such sick leave payments in Section 3 of the CA-7 forms.

10

Because OWCP did not establish that appellant “knowingly” failed to report earnings or
employment activities on CA-7 forms covering the period September 30 to November 22, 2013,
OWCP has failed to meet its burden of proof to forfeit his right to compensation for that period.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to establish that appellant
forfeited his right to compensation for the period September 30 to November 22, 2013.27
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 18, 2017
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

27

Because OWCP’s findings of an overpayment was based on the findings of forfeiture, the overpayment of
compensation is moot.

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
SMALL BUSINESS ADMINISTRATION,
OFFICE OF DISASTER PERSONNEL,
Atlanta, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-954
Issued: September 26, 2014

Case Submitted on the Record

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

On March 20, 2014 appellant filed a timely appeal of a February 25, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as
No. 14-954. 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.
Appellant filed a claim for benefits on February 15, 2013, which was accepted for tibia
fracture and fibula fracture. Appellant stopped work on the date of injury. He began receiving
compensation for temporary total disability and was placed on the periodic rolls. By letter dated
January 23, 2014, OWCP made a preliminary finding that an overpayment in the amount of
$10,010.11 had occurred because appellant was paid an incorrect pay rate during the period
April 1 to December 3, 2013. It further found that appellant was without fault in its creation.
The Board has duly considered the matter and notes that in the case of William A.
Couch, the Board held that, when adjudicating a claim, OWCP is obligated to consider all
2

1

5 U.S.C. § 8101 et seq.

2

41 ECAB 548 (1990).

evidence properly submitted by a claimant and received by OWCP before the final decision is
issued. In the present case, OWCP received a February 24, 2014 response from appellant to its
January 23, 2014 preliminary overpayment notice in which he requested a telephonic conference
to address waiver of the overpayment. Appellant also submitted a cover letter in which he
requested waiver of the overpayment due to financial hardship.
While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that the statement and financial documents appellant submitted, received by
OWCP on February 24, 2014, were not reviewed. In its February 25, 2014 decision, OWCP
finalized the January 23, 2014 preliminary determination that an overpayment had occurred and
denied waiver of the overpayment. It stated that no response had been received to the
preliminary decision when in fact the record reflects that OWCP received appellant’s response
on February 24, 2014. For this reason, the case will be remanded to OWCP to enable it to
properly consider appellant’s response and all the evidence submitted prior to the issuance of the
February 25, 2014 decision. Following further development as the OWCP deems necessary, it
shall issue an appropriate decision on the merits.
IT IS HEREBY ORDERED THAT the February 25, 2014 decision of the Office of
Workers’ Compensation Programs is set aside; the case record is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: September 26, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 20-1247
Issued: August 5, 2021

Case Submitted on the Record

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

JURISDICTION
On May 18, 2020 appellant filed a timely appeal from a November 20, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $16,931.91 during the period March 12, 2007 through November 21, 2012 because she
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 20, 2019, the date of OWCP’s decision, was
May 18, 2020. Since using May 20, 2020, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 18, 2020, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

was overpaid for mileage reimbursements; and (2) whether OWCP properly found appellant at
fault in creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On October 29, 2000 appellant, then a 39-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
lifting trays of mail at work. OWCP initially accepted the claim for bilateral carpal tunnel
syndrome. It later expanded the acceptance of the claim to include bilateral epicondylitis and
lesion of ulnar nerve (cubital tunnel syndrome), left side.
Appellant submitted numerous medical travel refund requests, Form OWCP-957, for travel
to and from her duty office and for medical services in connection to her employment injury.4
An April 8, 2015 investigative report from the employing establishment’s Office of
Inspector General (OIG) analyzing appellant’s medical billing payments, including transportation
reimbursements, for the period January 2007 through March 2015 noted that appellant received an
unusual amount in mileage reimbursement funds related to her workers’ compensation claim.
During the course of the investigation, it was determined that she submitted a total of 964 requests
for reimbursement for transportation service dates, from December 5, 2000 through August 13,
2014, where there were no corresponding medical services, appliances, or supplies; or had
overstated mileage amounts; and/or reflected travel to/from work at a postal facility. The OIG
provided 33 examples with corresponding exhibits of appellant’s OWCP-957 forms from 2008
through 2012 which illustrated where there were no corresponding medical claims, appliances, or
supplies; overstated mileage amounts; and had traveled to/from work at a postal facility. It
determined that the yearly synopses from 2000 to 2014 totaled $24,800.96 in reimbursement
requests for which she was not entitled.
In a preliminary notice of overpayment dated December 15, 2015, OWCP advised
appellant that she was overpaid $24,800.96 in travel reimbursements for the period December 5,
2000 through August 13, 2014. It provided a summary of the overpayment charges, noting the
specific date and amount of the overpayment. OWCP related that it appeared appellant was at
fault in the creation of the overpayment because she willingly submitted claims for travel
reimbursement without submitted corresponding documentation of medical appointments,
overstated mileage, and received reimbursement for travel from the employing establishment. It
provided appellant with an overpayment action request form, an overpayment recovery
questionnaire (Form OWCP-20), and 30 days to request a pre-recoupment hearing, and/or contest
the fact, amount, and fault of the overpayment.

3

Docket No. 10-1982 (issued July 11, 2011); Docket No. 17-0479 (issued March 19, 2019).

4
The record contains medical travel refund request forms for approximately 33 dates in the period from 2008
through 2012, which appellant signed on 11/04/08, 8/7/09, 5/2/09, 2/22/11, 4/28/11, 11/13/11, and 11/28/12.

2

On January 11, 2016 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. The hearing was held on September 15, 2016.
By decision dated November 30, 2016, the OWCP hearing representative finalized the
December 15, 2015 preliminary overpayment determination.
Appellant subsequently appealed to the Board. By decision dated March 19, 2019, the
Board set aside OWCP’s November 30, 2016 decision which found that appellant was with fault
for an overpayment of $24,800.96 during the period December 5, 2000 through August 13, 2014
due to incorrect payments of travel reimbursements.5 The Board noted that while the employing
establishment’s OIG determined that appellant had submitted 964 requests for reimbursement over
a 14-year period where there were no corresponding medical services, overstated mileage amounts,
or reflected travel to/from work, only 33 of the requests for reimbursement were submitted as
exhibits. It found that it was important to review all 964 medical travel refund requests forms as
OWCP did not fully establish the existence of the total overpayment or explain the calculation
methods used and their validity.
Following the Board’s decision, OWCP requested all of the travel vouchers identified in
the employing establishment’s investigation. OWCP subsequently received 294 medical travel
refund request forms signed by appellant for the period of March 12, 2007 through
November 21, 2012. These travel refund request forms were signed by appellant on June 15, 2007;
December 7, 2007; March 26, 2008; November 3, 2008; November 4, 2008; November 7, 2008;
November 25, 2008; May 2, 2009; August 7, 2009; September 10, 2009; September 11, 2009;
December 1, 2009; December 29, 2009; January 12, 2010; March 29, 2010; April 17, 2010;
June 29, 2010; July 14, 2010; November 23, 2010; February 22, 2011; April 28, 2011; July 5,
2011; November 13, 2011; February 6, 2012; November 28, 2012; and February 6, 2017.
On October 3, 2019 OWCP made a preliminary determination that appellant received a
$16,931.91 overpayment of compensation for the period March 12, 2007 through November 21,
2012 because she received travel expense reimbursement which was not supported by medical
documents or was unauthorized. It found her with fault in the creation of the overpayment because
she willingly submitted claims for travel reimbursement without providing corresponding
documentation for medical claims, appliances or supplies, over stated mileage amounts, and
received reimbursement for travel to/from work at a postal facility which she knew or should have
reasonably been aware were incorrect. OWCP provided mileage reimbursement rates6 and advised
how the overpayment amounts were calculated.7 It provided a list of specific dates from March 12,
2007 through November 21, 2012 with the amount OWCP paid for each date, which it found
5

Docket No. 17-0479 (issued March 19, 2019).

6

The mileage reimbursement rate was $0.375 for the period 1/1/2004 to 2/4/2005; $0.400 for the period 2/4/20058/31/2004; $0.485 for the period 9/1/2005 to 12/31/2005; $0.445 for the period 1/1/2006 to 1/31/2007; $0.485 for the
period 2/1/2007 to 3/18/2008; $0.505 for the period 3/19/2008 to 7/31/2008; $0.585 for the period 8/1/2008 to
12/31/2008; $0.550 for the period 1/1/2009 to 12/31/2009; $0.500 for the period 1/1/2010 to 12/31/201; $0.510 for
the period 1/1/2011 to 4/16/2012 and $0.555 for the period 4/17/2012 to December 31, 2012.
7
The mileage claimed on the date (rounded up) multiplied by the mileage rate for that date equaled the amount
paid.

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totaled $16,932.91.8 OWCP advised appellant to complete an accompanying Form OWCP-20 and
submit supporting financial documentation. Additionally, it advised 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 pre-recoupment hearing. Appellant did not respond or submit any additional
evidence.
By decision dated November 20, 2019, OWCP finalized the preliminary overpayment
determination and the finding of fault. It required recovery of the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.9
With respect to travel expenses for medical treatment, the regulations provide:
“(a) The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what a reasonable distance to travel is, OWCP
will consider the availability of services, the employee’s condition, and the means
of transportation. Generally, a roundtrip distance of up to 100 miles is considered
a reasonable distance to travel. Travel taken by the shortest route, and if practical,
by public conveyance. If the medical evidence shows that the employee is unable
to use these means of transportation, OWCP may authorize travel by taxi or special
conveyance.”10
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA to ensure that an employee recovers from
his or her injury to the fullest extent possible in the shortest amount of time. OWCP has
administrative discretion in choosing the means to achieve this goal and the only limitation on
OWCP’s authority is that of reasonableness.11
ANALYSIS - ISSUE 1
The Board finds that this case is not in posture for decision.
By decision dated March 19, 2019, the Board set aside OWCP’s November 30, 2016
decision which found that appellant was with fault for an overpayment of $24,800.96 during the
period December 5, 2000 through August 13, 2014 due to incorrect payments of travel
8

This appears to be a typographical error as the total overpayment amount is for $16,931.91.

9

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

10

20 C.F.R. § 10.315(a).

11

See B.H., Docket No. 17-0479 (issued March 19, 2019); R.L., Docket No. 08-0855 (issued October 6, 2008).

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reimbursements. The Board found that the case was not in posture for decision because the
evidence of record did not include all of the OWCP-957 forms to establish the overpayment period,
nor did OWCP explain the calculation methods used to determine the overpayment amount.
On remand, OWCP received 294 OWCP-957 medical travel refund request forms signed
by appellant, in which she claimed mileage reimbursement for the period of March 12, 2007
through November 21, 2012.
A review of part of the initial dates identified by OWCP in its October 3, 2019 decision
reflects that the medical evidence of record is devoid of any evidence to support medical services
were rendered on March 12, April 4, April 11, April 13, 2007 as appellant claimed on
June 15, 2017. Therefore, the Board affirms OWCP’s finding of fact of overpayment.
However, the Board further finds that the case is not in posture for decision with regard to
the amount of the overpayment. The Board notes that some of dates which OWCP listed as being
subject to the overpayment were in fact supported by the evidence of record. For example,
appellant claimed transportation for medical services on April 23, May 4, and May 7, 2007 and
the evidence of record supported that physical therapy medical services were rendered, but OWCP
listed such dates as being overpaid by OWCP. An another example includes, but is not limited to,
OWCP’s finding of an overpayment on October 17 and October 22, 2008 which the record
supports that medical services were rendered in conjunction with appellant’s accepted conditions.
In light of the discrepancy between the evidence of record and OWCP’s finding of an overpayment
for certain dates, the Board finds that the final overpayment decision is insufficient to set forth a
basis for appellant to understand how and why she received an overpayment in compensation in
the amount of $16,931.91 during the period in question. OWCP provided an exhaustive listing of
the dates appellant was overpaid, but it failed to explain why the overpayment occurred on those
dates or provide an accurate listing of the overpayment.
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.12 The Board finds that the overpayment decision in this case does not provide
such an explanation. Therefore, the amount of overpayment has not been established.
On remand, OWCP shall prepare detailed calculations setting forth the exact amounts of
overpayment. Following this and other such further development as deemed necessary OWCP
shall issue a new preliminary overpayment determination.13

12
See L.J., Docket No. 19-0800 (issued October 17, 2019); A.J., Docket No. 18-1152 (issued April 1, 2019); J.W.,
Docket No. 15-1163 (issued January 13, 2016); O.R., 59 ECAB 432 (2008) with respect to overpayment decisions,
OWCP must provide clear reasoning showing how the overpayment was calculated); see Jenny M. Drost, 56 ECAB
587 (2005) (to comply with OWCP’s overpayment procedures, an overpayment decision must contain a clearly written
explanation indicating how the overpayment was calculated).
13

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation because she was overpaid for mileage reimbursements. The case is not in
posture for decision, however, with regard to the period and amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this opinion.
Issued: August 5, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Meyersdale, PA, Employer
__________________________________________

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

Docket No. 18-0449
Issued: October 23, 2019

Case Submitted on the Record

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

JURISDICTION
On December 29, 2017 appellant, through counsel, filed a timely appeal from a
November 2, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the November 2, 2017 nonmerit
decision.

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

The record also includes a September 26, 2017 merit decision, which affirmed a schedule award for two percent
permanent impairment of the left lower extremity. As counsel did not challenge OWCP’s September 26, 2017 merit
decision, the Board will not exercise jurisdiction over that particular decision.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 17, 2011 appellant, then a 40-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, he injured his left knee and foot when walking up
steps while in the performance of duty. On November 8, 2011 he underwent left knee arthroscopic
medial meniscal debridement. By decision dated November 21, 2011, OWCP accepted appellant’s
traumatic injury claim for left knee medial meniscus tear. It also authorized his recent left knee
arthroscopic procedure.
On December 9, 2015 appellant filed a claim for a schedule award (Form CA-7).
In support of his claim, appellant provided a November 30, 2015 impairment evaluation
from Dr. Gerald E. Dworkin, a physical medicine and rehabilitation specialist. Dr. Dworkin
indicated that appellant reached maximal medical improvement. He noted appellant’s history of
injury and treatment and utilized the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).4 Dr. Dworkin referenced Table 16-3,
Knee Regional Grid, A.M.A., Guides 509-11, and found 12 percent left lower extremity permanent
impairment based on a diagnosis of meniscal injury.
In a May 16, 2016 report, OWCP’s district medical adviser (DMA) found one percent left
lower extremity permanent impairment under Table 16-3 based on a diagnosis of “partial
meniscectomy.”5
OWCP subsequently declared a conflict in medical opinion, and referred appellant to an
impartial medical examiner (IME) to resolve the conflict.
In an August 9, 2016 report, Dr. Michael D. Wolk, a Board-certified physiatrist and IME,
noted appellant’s history of injury and treatment and determined that he had two percent left lower
extremity permanent impairment under Table 16-3 based on a diagnosis of “partial medial
meniscal injury status post meniscectomy.”6
On December 8, 2016 a second DMA reviewed the relevant evidence, including the IME’s
August 9, 2016 impairment rating, and concurred with the finding of two percent left lower
extremity permanent impairment under Table 16-3, A.M.A., Guides, page 509.

4

A.M.A., Guides (6th ed. 2009).

5

Id. at 509.

6

Id.

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By decision dated January 18, 2017, OWCP granted a schedule award for two percent
permanent impairment of the left lower extremity, which amounted to 5.76 weeks of compensation
beginning August 9, 2016.
On January 24, 2017 appellant, through counsel, requested a telephonic hearing, which was
held on July 13, 2017.
In an August 31, 2017 report, Dr. Dworkin reiterated his impairment evaluation rating of
12 percent permanent impairment of the left lower extremity.
By decision dated September 26, 2017, the hearing representative affirmed the January 18,
2017 decision, finding that the additional August 31, 2017 report from Dr. Dworkin was
insufficient to overcome the special weight accorded to IME Dr. Wolk.
On October 26, 2017 appellant, through counsel, requested reconsideration and attached
copies of Dr. Dworkin’s reports dated November 30, 2015 and August 31, 2017.
By decision dated November 2, 2017,
reconsideration of the merits of his claim.

OWCP denied appellant’s

request for

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (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.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one of the
7

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
8

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees ’ Compensation
System. Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

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requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The October 26, 2017 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Additionally, it did not advance
any relevant legal arguments not previously considered by OWCP. The Board thus finds that
appellant is not entitled to a review of the merits based on the first and second requirements under
section 10.606(b)(3).12
Counsel also failed to submit any “relevant and pertinent new evidence” with the
October 26, 2017 request for reconsideration. Attached to his request for reconsideration were
identical copies of the November 30, 2015 and the August 31, 2017 reports which were previously
considered by OWCP. Providing additional evidence that either repeats or duplicates information
already in the record does not constitute a basis for reopening a claim. 13 As these reports were
previously considered and reviewed by OWCP in the prior decision, appellant is not entitled to a
review of the merits based on the third requirement under section 10.606(b)(3). 14
The Board accordingly finds that appellant has not met 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. 15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

12

Id. at § 10.606(b)(3)(i) and (ii).

13

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

14

20 C.F.R. § 10.606(b)(3)(iii).

15

A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,
Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694
(2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not meet at least one of
the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the November 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL HIGHWAY ADMINISTRATION,
SAN FRANCISCO RESOURCE CENTER,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-637
Issued: October 3, 2008

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 December 27, 2007 appellant filed a timely appeal from a November 29, 2007
decision of the Office of Workers’ Compensation Programs denying continuation of pay.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant is entitled to continuation of pay for the period
December 30, 2005 through February 12, 2006 causally related to her accepted employment
injury of December 30, 2005. On appeal, appellant contends that her timely traumatic injury
claim should entitle her to continuation of pay.
FACTUAL HISTORY
On November 4, 2006 appellant, then a 57-year-old program assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 30, 2005, she sustained a right knee sprain

with a torn medial meniscus while lifting heavy boxes during an office move. Appellant delayed
filing a claim for more than 30 days after the injury as she was unaware of its severity until
November 1, 2006. She first notified the employing establishment of her injury claim on
November 2, 2006. The Office accepted that appellant sustained a right knee sprain/strain with
internal derangement and a torn medial meniscus.
In a January 26, 2007 telephone memorandum, the Office noted that appellant explained
that she did not file a claim for the December 30, 2005 injury until November 4, 2006 as she was
unaware of the torn medial meniscus until November 1, 2006.
By decision dated November 29, 2007, the Office denied appellant’s claim for
continuation of pay on the grounds that her claim was not made within 30 days of the
December 30, 2005 injury.
LEGAL PRECEDENT
Section 81181 of the Federal Employees’ Compensation Act2 provides for payment of
continuation of pay, not to exceed 45 days, to an employee “who has filed a claim for a period of
wage loss due to traumatic injury with her immediate supervisor on a form approved by the
Secretary of Labor within the time specified in section 8122(a)(2) of this title.” Section
8122(a)(2)3 provides that written notice of injury must be given as specified in section 8119.
The latter section provides in part that notice of injury shall be given in writing within 30 days
after the injury.4
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a claim within 30
days of the injury. When an injured employee makes no claim for a period of wage loss within
30 days, she is not entitled to continuation of pay, notwithstanding prompt notice of injury.5 The
Act makes no provision for exceptional or mitigating circumstances entitling a claimant to
continuation of pay who has not filed a claim within 30 days of the injury.6
The Act’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must: “(1) Have a traumatic injury which is job related and the
cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) File Form CA-1 within 30 days of the date of the injury; and (3) Begin losing time

1

5 U.S.C. § 8118.

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8122(a)(2).

4

5 U.S.C. § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Laura L. Harrison, 52 ECAB 515 (2001).

6

Id. William E. Ostertag, 33 ECAB 1925 (1982).

2

from work due to the traumatic injury within 45 days of the injury.”7 The Act further authorizes
continuation of pay of an employee who has filed a valid claim for traumatic injury.8
ANALYSIS
The Office accepted that appellant sustained a right knee injury on December 30, 2005.
Appellant filed a notice of traumatic injury (Form CA-1) on November 4, 2006, more than 30
days after December 30, 2005. She acknowledged that she did not file a claim form prior to
November 4, 2006. Thus, appellant is not entitled to continuation of pay as she did not file her
traumatic injury claim within 30 days of the injury.
On appeal, appellant contends that because she filed a timely traumatic injury claim
under section 8122 of the Act,9 her claim should also be considered timely for purposes of
granting continuation of pay under section 8118 of the Act.10 However, timeliness under section
8122 does not confer timeliness under section 8118. The two standards are independent. A
traumatic injury claim may be timely under section 8122 if filed more than 30 days after the
injury, as in this case. But the 30-day time limitation for claiming continuation of pay under
section 8118(a) is absolute.11 There are no provisions for extending or waiving this 30-day time
limit.12 As appellant did not file her traumatic injury claim within 30 days of the December 30,
2005 injury, she is not entitled to continuation of pay.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay. She did not file a
traumatic injury claim within 30 days of the accepted injury.

7

20 C.F.R. § 10.205(a)(1)-(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

8

5 U.S.C. § 8118(a).

9

5 U.S.C. § 8122(a).

10

5 U.S.C. § 8118.

11

5 U.S.C. § 8118(a).

12

Laura L. Harrison, supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2007 is affirmed.
Issued: October 3, 2008
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
__________________________________________
E.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Morgantown, WV,
Employer
__________________________________________

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

Docket No. 14-141
Issued: May 14, 2014

Case Submitted on the Record

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

JURISDICTION
On October 28, 2013 appellant timely appealed the July 12, 2013 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration. The
latest merit decision is dated November 22, 2010, which is more than 180 days prior to the filing
of the instant appeal. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to the July 12, 2013 nonmerit
decision.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
This case was previously before the Board. Appellant, a 70-year-old cook foreman, last
worked for the employing establishment in August 1978.2 Prior to his federal civilian service, he
served on active duty with the U.S. Army from October 1967 through February 1976. Medical
records from the Department of Veterans Affairs note that, in July 1997, appellant was diagnosed
with delayed onset post-traumatic stress disorder (PTSD). It paid disability benefits for his
service-connected PTSD.3
On November 20, 2008 appellant filed an occupational disease claim (Form CA-2) for
PTSD. He attributed his condition to a constructive termination in August 1978.4 Appellant first
became aware of the employment-related nature of his PTSD on February 15, 2004. He claimed
to have promptly notified the employing establishment of his condition at that time.
Dr. Martin L. Boone, Ph.D., a neuropsychologist, evaluated appellant on July 7, 2004.
He diagnosed delayed onset PTSD. Dr. Boone indicated that appellant had likely been
experiencing some level of PTSD since returning from Vietnam in 1968. He also noted that
appellant reported experiencing a substantial increase in symptoms after a very stressful
occupational experience associated with his employment at the employing establishment in
Morgantown in the late 1970s. Appellant told Dr. Boone that he was forced to resign or be fired,
without any apparent justification. Consequently, he was extremely worried about his finances.
Dr. Boone explained that anxiety disorders were known to exacerbate at times of increased
stress.
By decision dated July 10, 2009, OWCP denied appellant’s November 20, 2008 claim as
untimely filed pursuant to 5 U.S.C. § 8122. It determined that Dr. Boone’s July 2004 evaluation
put appellant on notice of the possible relationship between his PTSD and his federal
employment; but he waited four years before filing his occupational disease claim.
Consequently, appellant failed to meet the three-year filing requirement under 5 U.S.C. § 8122.
On December 14, 2009 the Branch of Hearings and Review affirmed the July 10, 2009 decision.
On November 22, 2010 the Board affirmed the hearing representative’s decision.5
Appellant sought reconsideration before OWCP, which was denied by decision dated
January 5, 2011. He then sought review before the Board; however, his September 13, 2011
appeal was untimely. By order dated January 25, 2012, the Board dismissed the appeal.6 On
2

Between July 1976 and August 1978, appellant worked approximately 18 months at the Robert F. Kennedy
Youth Center, Federal Correctional Institution (FCI), Morgantown, WV. Personnel records (Standard Form 52)
indicate that he resigned effective August 18, 1978.
3

Appellant also received disability benefits from the Social Security Administration for anxiety disorders.

4

Appellant claimed that he was forced to quit.

5

Docket No. 10-673 (issued June 10, 2011) (the Board issued an order denying appellant’s petition for
reconsideration).
6

Docket No. 12-4 (issued January 25, 2012) (the Board’s prior decision and orders are incorporated herein by
reference).

2

July 11, 2012 appellant petitioned the Board to reconsider its January 25, 2012 order, but his
petition was also untimely. He sought further review in U.S. District Court; however, on
March 21, 2013 the court dismissed his civil complaint for lack of subject matter jurisdiction.
On April 8, 2013 appellant requested reconsideration before OWCP. He argued that he
timely notified the employing establishment of his injury in 2004 when he filed an Equal
Employment Opportunity (EEO) discrimination complaint.7 Appellant contended that the
employing establishment failed to inform OWCP of his injury or to inform him that he had to file
a FECA claim for PTSD instead of an EEO complaint. He submitted a copy of two statutory
provisions (5 U.S.C. §§ 8120 and 8122), an April 13, 2004 EEO complaint, an EEO counselor’s
report and employee personnel records listing his hourly wages as a cook foreman effective
May 7, 1978.
By decision dated July 12, 2013, OWCP denied appellant’s April 8, 2013 request for
reconsideration. It found that the request was untimely and he failed to establish clear evidence
of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the application for
reconsideration must be received within one year of OWCP decision for which review is
sought.10 When a request for reconsideration is untimely, OWCP will undertake a limited review
to determine whether the application presents clear evidence of error on the part of OWCP in its

7

In an April 13, 2004 EEO complaint (Form DOJ-201A), appellant alleged discrimination based on mental
disability (PTSD and alcoholism). The discrimination allegedly occurred on August 9, 1978. Appellant believed
that he was discriminated against when he was forced to resign from FCI Morgantown. The employing
establishment dismissed the EEO complaint as untimely. There was a 45-day time limitation within which to
initiate an EEO complaint. In appellant’s case, he waited more than 25 years before contacting an EEO counselor
regarding discriminatory activity that allegedly occurred in August 1978. The Equal Employment Opportunity
Commission subsequently upheld the dismissal of appellant’s EEO complaint, as did the U.S. District Court.
8

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a).

3

most recent merit decision.11 The application must establish, on its face, that such decision was
erroneous.12
ANALYSIS
OWCP’s last merit decision is dated December 14, 2009, which the Board affirmed by
decision dated November 22, 2010. It subsequently denied reconsideration in a decision dated
January 5, 2011. Appellant filed an untimely appeal of the January 5, 2011 nonmerit decision,
which the Board dismissed by order dated January 25, 2012.
His latest request for
13
reconsideration was dated April 8, 2013 and received on April 15, 2013.
The April 8, 2013 request for reconsideration was more than one year after the most
recent merit decision; therefore, appellant’s request is untimely. Consequently, he must
demonstrate clear evidence of error on the part of OWCP in finding his November 20, 2008
claim untimely pursuant to 5 U.S.C. § 8122.
Section 8122(a) of FECA provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.14 A claim filed outside this
timeframe must be disallowed unless the immediate superior had actual knowledge of the injury
or death within 30 days.15 An otherwise untimely claim will also be considered timely if the
immediate superior received written notice within 30 days of the date of injury or death.16
However, in a case of latent disability, the time for filing a claim does not begin to run until the
employee has a compensable disability and is aware or reasonably should have been aware, of
the causal relationship between the disability and the employment.17 An employee with actual or
constructive knowledge of his or her employment-related condition, who continues to be
exposed to injurious working conditions, must file his or her claim within three years of the date

11

Id. at § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and
explicit and it must be apparent on its face that OWCP committed error. See Leona N. Travis, 43 ECAB 227 (1991).
It is not enough to merely show that the evidence could be construed to produce a contrary conclusion. Id.
Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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 OWCP’s decision. Thankamma Mathews, 44 ECAB 765,
770 (1993).
12

20 C.F.R. § 10.607(b).

13

The Board’s November 22, 2010 decision is the most recent merit decision of record.

14

5 U.S.C. § 8122(a).

15

The knowledge must be such to put the immediate superior reasonably on notice of an on-the-job injury. Id. at
§ 8112(a)(1).
16

Id. at § 8122(a)(2) (written notice must be in accordance with 5 U.S.C. § 8119).

17

Id. at § 8122(b); 20 C.F.R. § 10.101(c).

4

of last exposure to the implicated conditions.18 In this case, the last possible employment
exposure was August 18, 1978, the effective date of appellant’s resignation.
There is no evidence of record that appellant’s immediate superior received written notice
or had actual knowledge of appellant’s injury PTSD within 30 days of August 18, 1978.
Appellant claimed that he was aware of the employment-related nature of his condition as early
as February 2004. OWCP determined that Dr. Boone’s July 7, 2004 evaluation commenced the
three-year filing period under 5 U.S.C. § 8122(b). However, appellant did not file his claim until
November 20, 2008, which was more than three years afterwards. As such, his claim was
untimely.
Appellant contended that his April 2004 EEO complaint represented timely notice of
injury to his employer. As noted, an otherwise untimely claim will be considered timely if the
immediate superior had actual knowledge of the injury or received written notice within 30 days
of the date of injury.19 Appellant has not submitted evidence to establish that his immediate
superior or another employing establishment official had actual knowledge or received written
notice of his PTSD within 30 days of his last employment exposure. The April 2004 EEO
complaint filed more than 25 years later does not satisfy the notice requirements under 5 U.S.C.
§ 8112(a)(1), (2).20
Appellant also argued that the employing establishment should have informed OWCP of
his injury. Additionally, he claimed that his employing establishment failed to advise him to file
a FECA claim rather than an EEO complaint. The Board previously noted that appellant’s
unfamiliarity with FECA’s filing requirements did not excuse his untimely filing.21
Notwithstanding perceived failures on the part of the employing establishment, he is ultimately
responsible for filing his FECA claim in a timely fashion.
The Board finds that appellant has not demonstrated clear evidence of error. As such,
there is no justification for further merit review. Accordingly, OWCP properly declined to
reopen his case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant’s April 8, 2013 request for reconsideration was untimely
and he failed to demonstrate clear evidence of error. Therefore, appellant is not entitled to
further merit review.
18

E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.6 (March 1993).
19

5 U.S.C. § 8112(a)(1), (2).

20

An EEO complaint is not a claim for benefits under FECA.
September 23, 2009).
21

See M.M., Docket No. 08-1756 (issued

5 U.S.C. § 8122(d)(3) (“exceptional circumstances”); see Ralph L. Dill, 57 ECAB 248, 253-54 (2005)
(ignorance of the law or one’s obligations under it does not constitute “exceptional circumstances” that would
otherwise excuse an untimely filing).

5

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2014
Washington, DC

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

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

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

6