United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
PUGET SOUND HEALTH CLINIC, Seattle, WA, )
Employer
)
__________________________________________ )
R.L., Appellant

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

Docket No. 20-0098
Issued: March 17, 2022

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 October 16, 2019 appellant filed a timely appeal from a July 18, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 13, 2015 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she developed emotional distress and severe anxiety on December 18,
2014 at 11:00 a.m. when the employing establishment police improperly arrested her with an
unwarranted display of force while she was engaged in union duties.
In a January 21, 2015 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed and provided a factual
questionnaire for her completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide additional information regarding appellant’s alleged
emotional condition claim, including comments from a knowledgeable supervisor regarding the
accuracy of her allegations and an explanation of any areas of disagreement, a copy of her position
description, and the results of any investigation. It afforded both parties 30 days for response.
On January 15, 2015 Dr. Keith Sonnanburg, a licensed clinical psychologist, opined that
appellant was totally disabled due to a work-related psychological injury. On February 2, 2015 he
diagnosed work-related stress and anxiety. Dr. Sonnanburg, in an attending physician’s report
(Form CA-20) dated February 4, 2015, checked a box marked “Yes” to indicate that her condition
was caused or aggravated by her employment activity and added that her condition was directly
related to episodes at her place of work.
By decision dated February 24, 2015, OWCP denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish that the claimed incident
occurred, as alleged. It noted that she had not submitted a factual statement outlining specific
details of the alleged December 18, 2014 employment incident. Thus, OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On March 4, 2015 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review. She provided additional information in support of
her request. In a March 3, 2015 statement, appellant noted that she was a union vice-president and
was responsible for representing employees in meetings and hearings with management, filing
grievances, and protecting employees’ rights. She explained that in the course of representing an
employee, R.G., a pathologist, she met with him on December 18, 2014 to discuss a fact-finding
interview scheduled on that date. Appellant had consulted via telephone with J.M., a physician
who was also the national union representative, who confirmed that R.G. was entitled to union
representation at the scheduled fact-finding interview. She and the chief union steward, A.T., met
S.L, the Acting Director of the employing establishment, and R.N., an employing establishment
official, in the hallway and S.L. informed them that R.G. did not have representation rights for the
interview. Appellant disagreed and noted that R.G. had requested her presence during the
interview. She attended the interview with the permission of the interviewer and took notes.
2

Docket No. 18-1375 (issued May 1, 2019).

2

Shortly after the interview began, R.N. interrupted the meeting and insisted that appellant and A.T.
leave. After appellant left the room, she informed R.N. that she would file an unfair labor practice
complaint against the employing establishment and requested his name. She remained outside the
conference room in the hallway on her cellphone when two armed and uniformed employing
establishment police officers, Lt. W.C., and Lt. E., began searching the area near the conference
room. They subsequently entered the conference room, returned to appellant, and asked her name.
The officers then informed her that they had been asked to remove her from that area and then that
floor of the employing establishment’s building. Appellant alleged that her removal was solely
because of her protected union activities. She noted that Lt. W.C. became agitated and denied that
there were any charges against her, but asked for her security badge. Appellant informed the
officers that her badge was in her office and led them to her office to retrieve her badge. The
officers again denied that she was under arrest and released her from custody after reviewing her
badge. Appellant alleged that this incident caused her heart palpitations, shock, and fear. She was
unable to continue her work that day and eventually went home. Appellant reported to work the
next day and again experienced heart palpitations and tension. She felt that the stress was too
much. Appellant had to ask coworkers to assist with completing her assigned work. Thereafter,
she began to have nightmares about working at the employing establishment.
Appellant noted that she had filed a Federal Labor Relations Authority (FLRA) complaint
against the employing establishment, but had not yet received a final decision. She alleged that
the employing establishment interfered with protected union activity when it called the police after
she left the interview on December 18, 2014.
Appellant provided a February 19, 2015 witness statement from R.G., who noted that he
had requested that she accompany him to the interview to protect his rights. R.G. noted that he
had invited appellant into the interview and the interviewer had indicated that he did not have a
problem with her presence. He asserted that shortly after the interview began, management
officials, including R.N., entered the room and informed the participants that R.G. did not have
the right to union representation. Appellant then left the room.
In a February 19, 2015 statement, B.A., the union president, described the events of
December 18, 2014 and confirmed that the police officers denied that appellant was under arrest,
but escorted her into her office and examined her badge. She informed B.A. that the officers had
been called to remove her from the area of the meeting. B.A. alleged that an officer advised her
that the “panic button” had been pushed as a means of calling the police to the scene.
A February 20, 2015 e-mail from J.M. indicated that he was aware that appellant was acting
as R.G.’s representative in the scheduled interview. On February 20, 2015 A.T. reported that he
had attended the December 18, 2014 meeting with appellant and R.G. He confirmed that the
interviewer consented to their presence during the interview. A.T. was taking notes when R.N.
entered and asserted that union representation was not allowed. He and appellant then left the
room.
In an undated form report, Dr. Sonnanburg noted that appellant was attending a meeting as
a union representative and was shocked by the employing establishment police who responded to
an improper panic signal and removed her. He diagnosed adjustment disorder with mixed anxiety
and depressed mood with post-traumatic stress disorder symptom pattern.

3

On May 5, 2015 appellant requested reconsideration of the February 24, 2015 OWCP
decision.
In a September 29, 2015 development letter, OWCP requested additional factual
information from the employing establishment including a statement from a supervisor regarding
the accuracy of appellant’s claim, whether her job was stressful, and a copy of her position
description. It afforded 30 days for a response. The employing establishment responded,
contending that R.G. was not entitled to union representation at the December 18, 2014 interview
and that appellant was aware of this fact. It alleged that appellant entered the room where the
interview was scheduled on December 18, 2014 and R.N. had asked her to leave. The employing
establishment asserted that she commented that she would leave the room, but would stand
immediately outside the door. Appellant then demanded information from R.N. in a loud and
aggressive manner. R.N. informed her that her behavior was inappropriate and asked her to leave
the floor. Appellant refused. R.N. then asked the receptionist to summon the police and she
activated the panic button call. The police arrived and asked to see appellant’s identification. They
escorted her to her office to retrieve her badge.
The employing establishment contended that appellant was not arrested, accosted, or
subject to unwarranted display of force. It asserted that R.G. had no right to union representation,
that she was advised of this, that she refused to leave the area when asked, and that she was
therefore acting on her own volition, not as part of protected union activity. The employing
establishment concluded that appellant was not in the performance of duty.
By decision dated January 19, 2016, OWCP modified its February 24, 2015 decision,
finding that appellant had not established a compensable factor of employment and, thus, an injury
was not sustained in the performance of duty. It noted that there was no evidence that the
employing establishment’s actions regarding the December 18, 2014 meeting were abusive,
erroneous, or improper and found that her reactions were self-generated.
On January 18, 2017 appellant requested reconsideration of the January 19, 2016 decision
on January 18, 2017. She provided an additional narrative statement dated January 14, 2017,
wherein she asserted that on December 18, 2014 she attended a meeting on the fifth floor of the
employing establishment in room 523 to represent R.G. Appellant was ordered to leave the room
and did so. She remained in the hallway, outside of the room awaiting R.G. in case her assistance
was needed. Appellant alleged that she was quiet, that she was not disruptive, and that she was
checking her cellphone for the number of J.M. to ask for advice. She noted that she was so quiet
that the police officers did not notice her and had to ask where she was. When appellant asked
what charges were being leveled against her, one of the officers became red -faced and flustered.
The police officer used an angry voice to tell appellant that she had to leave the fifth floor and that
he had to remove her from the area. Appellant believed that she had no choice but to leave with
the police under their escort. The police officers walked on either side and escorted her to her
fourth floor office. While there, they notified appellant that she was free to go.
In a January 3, 2017 letter, B.A. indicated that R.G. requested union help and that on
December 18, 2014 appellant was engaged in representational functions at the time of her injury.
She noted that she was appellant’s supervisor and that appellant was entitled to official time at the
time of her injury.

4

On January 4, 2017 A.B., an employing establishment administrative assistant, provided a
statement noting that on December 18, 2014 she observed appellant enter the conference room.
She asserted that appellant was asked to leave the room and did so. R.N. then asked A.B. to call
security, which she did. A.B. noted that appellant was in the hallway after leaving the conference
room and did not raise her voice or make noise. She contended that appellant did not cause any
commotion or disturbance from the time when she left the conference room until the police
removed her from the area.
Appellant provided a copy of the FLRA-approved settlement agreement signed by the
acting regional director of the employing establishment on January 23, 2016 and the FLRA notice
to employees which was signed by the employing establishment’s medical center director on
January 24, 2016. Under the FLRA settlement agreement, the employing establishment was
required to ensure that all references to the police encounter with appellant o n December 18, 2014
was expunged from its records, and forbidden to rely on this incident in any future action. It was
also required to post the following notice to all employees:
“On or about December 18, 2014, [the employing establishment] police removed
[appellant] from a location where she was waiting for an employee to exit a
meeting. The [FLRA] statute prohibits an agency from interfering with an
employee’s exercise of protected activity and/or taking an action against an
employee because of the exercise of protected activity.”
The notice further provided that the employing establishment would not interfere with the exercise
of protected activity or take an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
On March 17, 2017 the employing establishment responded to appellant’s January 18,
2017 request for reconsideration. In a statement dated November 3, 2015, A.B., noted that she
was sitting at her desk on December 18, 2014 near room 523 at the employing establishment. She
indicated that appellant was standing right in front of her desk and that she was shaken by her
disruptive behavior, including yelling and screaming. A.B. asserted that appellant was asked to
leave the area and refused to go. R.N. requested that she contact the police.
In an e-mail dated May 28, 2015, R.N. asserted that the December 18, 2014 meeting was
not associated with personnel issues, that the union had no vested interest in attending, and that
both R.G. and the union were made aware of these facts prior to the meeting. He indicated that
the union presence was disruptive and unnecessary. R.N. asked the union officials to leave. He
alleged that appellant became confrontational and initially refused to leave the room. Appellant
then agreed to leave the room, but asserted that she would stand immediately outside the door in
an outer office area. Once in the office area, she then demanded identification from R.N. R.N.
asserted that appellant’s demeanor was loud and aggressive. He informed her that this behavior
was inappropriate and again asked her to leave, but she refused. A.B. was asked to summon the
police and activated a panic button. When the police arrived, they asked to see appellant’s
identification. Appellant did not have identification, and the officer escorted her out of the area.

5

R.N. asserted that she was not engaged in protected union activity and that her disruptive behavior
in the outer office work environment was inappropriate.
In an e-mail dated November 23, 2015, Lt. W.C. noted that on December 18, 2014 he was
called to room 523 due to a disruptive situation. He indicated that he contacted someone in the
office who informed him that they were conducting a meeting, that appellant was being disruptive,
and that person requested that she be escorted out of the office as the meeting did not require union
presence. Lt. W.C. asserted that she was argumentative toward the staff, loud, and disruptive. He
advised appellant that she needed to leave the area and she became argumentative toward him and
told him that it was her right to be in the office. Lt. W.C. escorted her to the union office and
directed her actions to the union president. He alleged that appellant accused him of not knowing
how to do his job.
On April 26, 2017 OWCP provided appellant with a copy of the employing establishment’s
responses and afforded her 20 days to submit comments. On May 15, 2017 appellant responded
and asserted that in the FLRA posting, the employing establishment admitted to interfering with
protected activity and interfering with appellant’s exercise of her rights in accordance with FLRA
statute. She further noted that the settlement agreement included that her interactions with the
employing establishment police on December 18, 2014 would be expunged from the employing
establishment’s records.
By decision dated June 27, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
her reconsideration request was received on January 20, 2017. In a memorandum of telephone
call (Form CA-110) dated September 7, 2017, OWCP’s claims examiner noted reviewing
appellant’s claim file and found that her requests for reconsideration were entered into the
Integrated Federal Employees’ Compensation System (iFECS) on January 18, 19, and 20, 2017.
The claims examiner directed her to either appeal to the Board or to make an additional request
for reconsideration which would not be timely, but noted that the date of her original request for
reconsideration would establish clear evidence of error.
On September 20, 2017 appellant requested reconsideration of the January 19, 2016
decision. She noted that her initial request for reconsideration was received by OWCP on
January 18, 2017 and therefore, was timely.
By decision dated January 8, 2018, OWCP reviewed the merits of appellant’s claim but
denied modification of its January 19, 2016 decision. It found that she had submitted no evidence
to demonstrate that the employing establishment acted in an abusive or improper manner in regard
to the accepted December 18, 2014 employment incident. OWCP further found that the FLRA
settlement agreement did not include an admission of error or abuse on the part of the employing
establishment. It determined that appellant’s emotional reaction was self-generated and not due
to a compensable factor of her employment.
Appellant appealed to the Board, and in its May 1, 2019 decision, 3 the Board set aside the
January 8, 2018 decision and remanded the case for OWCP to request that the employing
3

Id.

6

establishment address her use of official time at 11:00 a.m. on December 18, 2014, when she
alleged that her injury occurred. The Board further directed OWCP to require that the employing
establishment provide documentation establishing whether she was performing a representational
function at the fact-finding interview on December 14, 2018. The Board determined that if the
employing establishment found that appellant was not on official time, she should be advised of
this finding and provided an opportunity to submit relevant evidence on the issues. Following any
further development, OWCP was to issue a de novo decision.
In a May 22, 2019 development letter, OWCP requested that the employing establishment
address appellant’s use of official time on December 18, 2014 at 11:00 a.m. and to provide
documentation establishing her representational function. It further requested that the employing
establishment provide documentation, in the form of appropriate regulations, executive order, or
union agreement covering the specific situation. OWCP noted that in the absence of a full reply
from the employing establishment, it could accept appellant’s allegations as factual.
In a June 28, 2019 letter, the employing establishment responded and asserted that
appellant was not performing a union representational function during the time of her alleged
workplace injury on December 18, 2014 at 11:00 a.m. It noted that prior to the alleged incident,
appellant had represented R.G. in a grievance filed on December 1, 2014. In addressing this
grievance, R.G. also raised quality of medical care concerns. On December 12, 2014 W.C., the
Chief of Staff and the employing establishment deciding official, partially accepted the grievance
and directed the employing establishment to initiate an independent fact-finding by a qualified
pathologist into the issues raised by R.G. regarding validation of laboratory studies which resulted
in the medical quality review scheduled on December 18, 2014. The employing establishment
asserted that on December 18, 2014 it was addressing R.G.’s concerns to ensure improvement in
quality medical care at the facility in accordance with 5 U.S.C. § 7114; 38 U.S.C. §§ 5705, 7311,
and 7422, and its medical bylaws, Article IX. It further asserted that the medical quality review
was conducted for the sole purpose of addressing concerns in medical quality raised by R.G. and
that anything he disclosed during the medical quality review was protected information and could
not be used for any purpose other than improving medical quality of care. The employing
establishment asserted that there was no right to union representation as the medical quality review
was not about R.G., his practice, performance, conduct, or any issues specified as a ba sis for the
grievance.
The employing establishment noted that as union vice president, appellant was authorized
80 percent official time to perform union duties. However, it asserted that on December 18, 2014
at 11:00 a.m. R.G. was not entitled to union representation and appellant was not authorized to
attend the medical quality review. The employing establishment asserted that under 5 U.S.C.
§ 7114, representational rights were limited to formal discussion of a grievance or personnel
policy, practices or general condition of employment, or any examination of an employee in
connection with an investigation if the employee reasonably believes that the examination could
result in disciplinary action and if the employee requests representation. It contended that R.G.
had no reasonable expectation of disciplinary action from the December 18, 2014 medical quality
review. The employing establishment asserted that, therefore, it was under no obligation to allow
union representation during the medical quality review as it was in no way an investigation of R.G.

7

The employing establishment provided copies of Article 49 of the union ’s rights and
privileges, the Bylaws and Rules of the Medical Staff of the employing establishment, Article IX;
5 U.S.C. § 7114, 30 U.S.C. §§ 5705, 7311, and 7422, the grievance filed by R.G. on December 1,
2014, and the response dated December 12, 2014 from W.C.
In a July 5, 2019 response, appellant asserted that she was performing union representation
for R.G. on December 18, 2014. She noted her prior representation of R.G. which had begun with
written counseling he received on October 7, 2014 during his probationary period. Appellant
noted that beginning on November 10, 2014 R.G. was undergoing a Focused Professional Practice
Evaluation (FPPE) which evaluated his ability to communicate effectively with staff, his
productivity in areas requiring close interaction with colleagues, and his professional behavior.
The FPPE required him to institute implementation of calculated ionized calcium in the laboratory
test menu, implemental qualitative confirmation assays for amphetamine, benzodiazepine, and
opiates, as well as correlate immunosuppressant drug testing. She asserted that each of these areas
was directly implicated during the December 18, 2014 medical quality review. Appellant asserted
that while the employing establishment contended that her answers during the medical quality
review could not be used against him, he was asked to resign shortly thereafter. She further
asserted that at the time of the medical quality review he had a reasonable belief that his
participation in this investigation could result in disciplinary action.
Appellant provided a May 3, 2012 letter from the union president indicating that beginning
September 2012 appellant would be on 100 percent official time.
In an undated and unsigned statement, R.G. noted that on October 9, 2014 a critical
component on chemistry analyzers, the indirect ion selective electrodes (ISE) which allowed
measurements of serum, plasma sodium, potassium, and chloride was updated, but not properly
validated. He formulated a plan to repair to the validation of ISE and on December 3, 2014 alerted
W.C. to his concerns about the quality of laboratory testing. W.C. commenced a 38 U.S.C. § 5705
medical quality assurance program review scheduled for December 18, 2014 with the interviewer.
R.G. was informed that his disclosures would not and could not result in a punitive action against
him or other employees so he attended the meeting with union representation which was removed
during the course of the meeting. He alleged that he was then subjected to retaliation for disclosing
a medical quality assurance issue in the December 18, 2014 meeting, for which he was explicitly
told he could not be punished.
By decision dated July 18, 2019, OWCP again denied appellant’s emotional condition
claim finding that the quality review was not associated with a grievance, a change in work
conditions or an investigation where a potential disciplinary action could have been imposed of
misconduct. It determined that she, therefore, was not on official time as a union representative at
the time her alleged emotional condition occurred. OWCP concluded, therefore, that appellant
had not sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’

8

compensation. When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable. 4
However, disability is not compensable when it results from factors such as an employee’s fear of
a reduction-in-force, or frustration from not being permitted to work in a particular environment,
or to hold a particular position. 5
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.6 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.7 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor. 8
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 9 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 10
The Board has recognized an exception to this general rule. Employees performing
representational functions which entitle them to official time are considered to be in the
performance of duty if injured during the performance of those functions. 11 The underlying
rationale for this exception is that an activity undertaken by an employee in the capacity of a union
official may simultaneously serve the interest of the employer. 12 OWCP’s procedures indicate that
representational functions include authorized activities undertaken by employees on behalf of

4

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
5

Lillian Cutler, id.

6

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
7

C.M., Docket No. 17-1076 (issued November 14, 2018); David C. Lindsey, Jr., 56 ECAB 263, 268 (2005)
Thomas D. McEuen, id.
8

Id.

9

J.G., Docket No. 17-1948 (issued September 13, 2018); Jimmy E. Norred, 36 ECAB 726 (1985).

10

J.G., id.; C.M., Docket No. 10-0753 (issued December 15, 2010).

11
J.G., supra note 9; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing
activities related to the internal business of a labor organization such as soliciting new members or collecting dues are
not considered to be in the performance of duty. The singular fact that one is on paid official time for union
representation is not enough to establish that every interaction during such official time is within the performance of
duty).
12

J.G., supra note 9; Marie Boylan, 45 ECAB 338, 342-43 (1994).

9

other employees pursuant to such employees’ right to representation under statute, regulation,
executive order, or terms of a collective bargaining agreement.13
OWCP’s procedures discuss union representational functions and official time. 14 There
are specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted official time or, in emergency cases, would have
been granted ‘official time’ if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. 15
“If [an] agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing [30]
days for a response. If there is no timely response from [appellant], a formal
decision should be issued on the grounds that [appellant] is not in the performance
of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to this evidence, providing
documentation in the form of appropriate regulations, executive order or union
agreement covering the specific situation. [OWCP] will accept the ruling of the
[employing establishment] as to whether a representative was entitled to official
time unless the ruling is later overturned by a duly authorized appellate body.”16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition when the employing
establishment demanded that she leave a medical quality review meeting and the employing
establishment police escorted her from the hallway outside of the meeting while she was
performing representational union activities on December 18, 2014.
The first issue is whether appellant was in the performance of duty at the time of the alleged
employment incident. In its June 28, 2019 letter, the employing establishment acknowledged that
she utilized official time for 80 percent of her time. It did not specifically address appellant’s
official time schedule and whether or not she was on official time at 11:00 a.m. on
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997).

14

Id.

15

Id.

16

Id.

10

December 18, 2014. Appellant submitted a May 3, 2012 letter from the union president indicating
that, beginning September 2012, she would be on 100 percent official time and a January 3, 2017
letter from B.A., the union president, in which she noted that she was appellant’s supervisor and
that appellant was entitled to official time at the time of her injury. The Board thus finds that the
weight of the evidence of record establishes that appellant was on official time on December 18,
2014 at the time of the alleged employment incident.
The Board has held that the singular fact that one is on paid official time is not enough to
establish that every interaction during such official time is within the performance of duty. 17 The
Board has also required that a claimant be performing a mutually beneficial activity such as a
representational function. 18 The facts of this case establish that the nature of the activity in which
appellant was engaged was representational and therefore of mutual benefit to the union and her
employer.19 Representational functions include authorized activities undertaken by employees on
behalf of other employees pursuant to such employees’ right to representation under statute,
regulation, executive order, or terms of a collective bargaining agreement. 20
The alleged employment incident occurred when appellant was instructed to leave the
medical quality review meeting on December 18, 2014 after she indicated that she would file an
unfair labor practice complaint against the ejecting official, R.N. Appellant further alleged that
while she was waiting outside the meeting room for R.G. to emerge, and checking her cellphone
for J.M.’s telephone number to request advice, the employing establishment police escorted her
back to her office on a different floor. Further, the FLRA-approved settlement agreement indicated
that appellant was acting in a representational capacity when the employing esta blishment police
removed her from the meeting location. As appellant was on official time and performing
representational functions, the Board finds that she was in the performance of duty at the time of
the December 18, 2014 employment incident. 21
While the Board finds that appellant was in the performance of duty at the time of the
December 18, 2014 incident, she must also establish a compensable factor of employment.
Appellant has not attributed her emotional condition to any of the regular or specially
assigned duties of her position as a nurse. Rather, she has alleged error and abuse in administrative
matters by the employing establishment. As a general rule, a claimant’s reaction to administrative

17

J.S., Docket No. 14-1532 (issued December 4, 2015).

18

J.G., supra note 9; Ray C. Van Tassell, Jr., 44 ECAB 316 (1992).

19

See Bernard Redmond, 45 ECAB 298 (1994); Ray C. Van Tassell, Jr., id. (the Board has adopted a mutual benefit
approach to determining if union activities occurred in the performance of duty, therefore activities related to the
internal business of a labor organization, such as soliciting new members or collecting dues are not included).
20

Marie Boylan, 45 ECAB 338 (1994).

21

Wayne F. Therrien, Docket No. 97-2604 (issued December 9, 1999). See also Kelly Y. Simpson, 57 ECAB 197
(2005) (the Board found that the claimant was in a representational status at the time of her injury despite, the
employing establishment’s disagreement).

11

or personnel matters falls outside the scope of FECA. 22 Absent evidence establishing error or
abuse, a claimant’s disagreement or dislike of a managerial action is not a compensable factor of
employment. Appellant has submitted corroborative evidence of error or abuse in the
administrative actions of the employing establishment demanding that she leave the medical
quality review meeting and the employing establishment police escorting her from the hallway. In
this regard, the FLRA-approved settlement agreement required the employing establishment to
expunge all references to the encounter between appellant and its police from its records and
forbade it to rely on this incident in any future action. It also required the employing establishment
to post a notice that on or about December 18, 2014, the employing establishment police had
removed appellant from a location where she was waiting for an employee to exit a meeting. It
noted that its statute prohibited an agency from interfering with an employee ’s exercise of
protected activity and/or taking an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
The Board thus finds that appellant has submitted sufficient evidence to establish error or
abuse by the employing establishment in demanding that she leave the medical quality review
meeting and escorting her from the hallway on December 18, 2014. As appellant has established
a compensable employment factor the case presents a medical question regarding whether her
emotional condition resulted from the compensable employment factor. OWCP determined that
there were no compensable employment factors and thus did not analyze or develop the medical
evidence. The case will be remanded to OWCP for this purpose. 23 After such further development
as deemed necessary, it should issue a de novo decision on this matter.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

E.M., Docket No. 19-0156 (issued May 23, 2019),

23

Id.; see also K.J., Docket No. 17-1851 (issued September 25, 2019); T.F., Docket No. 12-0439 (issued
August 20, 2012).

12

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2019 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: March 17, 2022
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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Topeka, KS, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-2060
Issued: May 22, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On September 9, 2013 appellant, through her representative, filed a timely appeal from
the June 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim. The Clerk of the Board assigned Docket No. 13-2060.
The Board has duly considered the matter and finds that this case is not in posture for
decision. It is well established that an OWCP final decision must make adequate findings and
provide a statement of reasons.1 In addition, OWCP procedures state that a final decision should
discuss key parts of the evidence received and include an evaluation of the evidence that should
be clear and detailed so that the reader understands the reason for the disallowance of the benefit
and the evidence necessary to overcome the defect of the claim.2 The June 24, 2013 OWCP
decision does not meet this standard.
On March 22, 2013 appellant, then a 56-year-old program support assistant, filed an
occupational disease claim alleging that she sustained stress and strain in aggravation of a
1

20 C.F.R. § 10.126. See also O.R., 59 ECAB 432 (2008).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013).

preexisting injury. She stated that her condition resulted from her employers’ insistence that she
use leave or work longer shifts to cover her physician’s recommended light-duty work restriction
of 10- to 15-minute breaks for every hour spent using a keyboard, due to a neck condition.
Under the heading “nature of disease or illness,” appellant wrote, “stress and strain in
aggravation of a pre-existing injury.”
In a record of a telephone conversation dated April 19, 2013, appellant stated that she had
meant to file a claim for stress at work, which aggravated her preexisting conditions of
depression and anxiety. In a letter dated April 19, 2013, she noted that the initial date of
aggravation of her depression and anxiety was March 15, 2013 and described employment
factors relating to her claim. Appellant also submitted e-mail records dating from March 19
through 21, 2013 regarding the alleged work factors.
Appellant submitted a report dated April 11, 2013 from Dr. Denise M. Hawks, a Boardcertified psychiatrist.
In an occupational disease claim dated June 5, 2013, appellant alleged that her neck and
shoulders sustained fatigue and overexertion from prolonged data entry in the performance of
duty. OWCP assigned this claim File No. xxxxxx311.
On June 17, 2013 OWCP determined that it had created two separate cases for the same
injury and combined the two cases under the File No. xxxxxx920.
In a June 24, 2013 decision, OWCP denied appellant’s claim on the grounds that she had
not established any employment factors related to an orthopedic neck condition, stating that her
claim appeared to be for a neck condition rather than an emotional condition. It noted that her
March 22, 2013 claim for occupational disease contained a statement that her condition occurred
when she sustained a neck injury. OWCP stated that, in order to have her emotional condition
considered, appellant must file a separate CA-2 claim and clearly indicate that she was claiming
an emotional condition.
Because OWCP considered only appellant’s claim for a neck condition in its June 24,
2013 decision, it did not make adequate findings regarding her statements alleging work factors
relating to her emotional condition, or the probative value of Dr. Hawks’ April 11, 2013 report.
The case will be remanded for OWCP for proper findings and a decision that adequately
addresses appellant’s claim for an emotional condition. After such further development as
OWCP deems necessary, it should issue an appropriate decision.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 24, 2013 is set aside and the case remanded for further
action consistent with this order of the Board.3
Issued: May 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

Richard J. Daschbach, Chief Judge, who participated in the preparation of this order, was no longer a member of
the Board after May 16, 2014.

3


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

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

Docket No. 14-1369
Issued: October 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2014 appellant, through his attorney, filed a timely appeal of a February 18,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration of the merits of his claim. As more than 180 days has elapsed
between the issuance of the last merit decision and the filing of this appeal on May 30, 2014, the
Board has no jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review under 5 U.S.C. § 8128(a).
On appeal appellant’s attorney asserted that OWCP did not meet its burden to terminate
appellant’s wage-loss and medical benefits because he has continuing residuals of the
employment-related fractured clavicle and was therefore entitled to wage-loss compensation.

FACTUAL HISTORY
On April 9, 2012 appellant, then a 47-year-old carrier technician, filed a traumatic injury
claim alleging that on that day he blacked out and fell from his parked postal vehicle, injuring his
right shoulder. He stopped work that day. In a May 10, 2012 statement, appellant indicated that
on April 9, 2012, as he stopped to deliver mail and began to exit the postal vehicle, he felt pain in
his knee and remembered nothing further until he woke up in an ambulance. He stated that the
emergency medical technician (EMT) told him he had broken his shoulder and perhaps had a
seizure. Appellant was then taken to Underwood Memorial Hospital and treated for a broken
clavicle and possible seizure. He stated that he had never had a seizure before this incident and
that he had surgery on April 20, 2012.
In reports dated May 4, 2012, Dr. Raymond R. Ropiak, an attending Board-certified
orthopedic surgeon, indicated that appellant fell and fractured his right clavicle and had surgery.
He advised that appellant would be unable to work for three months after his surgery,
approximately, until July 20, 2012, or until he was able to return to light duty.
In correspondence dated May 8, 2012, Patricia Takata, customer service supervisor at the
employing establishment, indicated that two witnesses saw appellant on the ground after his fall
on April 9, 2012 and called police. An ambulance responded and appellant was taken to the
hospital. Ms. Takata indicated that she arrived shortly after appellant reached the hospital, and
that, in her presence, Dr. Mark E. Flores, an osteopath, informed appellant and his wife that
appellant had broken a bone in his shoulder and that he believed appellant also had a seizure.
By decision dated May 31, 2012, OWCP denied the claim on the grounds that appellant
suffered an idiopathic fall on April 9, 2012.
Appellant’s counsel timely requested a hearing. He submitted a partial hospital record
from Underwood Memorial Hospital dated April 9, 2012. The report included the EMT history
of present illness which stated that bystanders witnessed appellant having a grand mal seizure
lasting one to two minutes, and that appellant had a laceration to his posterior head and blood on
his tongue. A right shoulder x-ray demonstrated a comminuted fracture of the distal third of the
right clavicle. A computerized tomography (CT) scan of the brain revealed no evidence of acute
intracranial abnormality. Dr. Flores noted a history that appellant was found on the ground
having a seizure per witnesses. He provided physical examination findings that included a
superficial occipital laceration and a tongue laceration. The discharge instructions, signed by
Dr. Flores, included a final diagnosis of seizure with additional diagnoses of closed clavicle
fracture and minor closed-head injury. Appellant was instructed to follow-up with his family
physician and a neurologist.
By decision dated August 14, 2012, an OWCP hearing representative remanded the case
to OWCP to obtain appellant’s initial medical record. She indicated that the medical evidence of
record did not indicate that appellant had a seizure, only that the employing establishment
referenced a seizure. On September 26, 2012 OWCP noted that the hospital records, which were
in the case file on August 2, 2012 and available for review, indicated that the most likely cause
of appellant’s fall was a seizure. It explained that, because he fell from a postal vehicle, a hazard
special to employment, the injury was accepted for a closed fracture of the right clavicle.

2

Appellant was instructed that if the injury resulted in lost time from work, he should file a CA-7,
claim for compensation.
OWCP referred appellant to a medical management nurse. On October 15, 2012 she
advised OWCP that she had been unable to contact appellant. On October 22, 2012 OWCP
referred appellant for a second opinion examination with Dr. Kenneth P. Heist, a Board-certified
osteopath specializing in orthopedic surgery. In a November 6, 2012 report, Dr. Heist noted his
review of the statement of accepted facts and medical records, including the emergency room
records from Underwood Memorial Hospital. He indicated that appellant also had an
employment-related right knee injury. Dr. Heist advised that on upper extremity physical
examination, appellant demonstrated satisfactory range of motion in supination, pronation,
flexion and extension and that there were no major restrictions in internal rotation, external
rotation, abduction or adduction. He diagnosed status postoperative open reduction, internal
fixation utilizing a bone plate and transfixing bone screws for a fractured right clavicle.
Dr. Heist advised that the clavicle fracture had healed with no residuals and that appellant was
capable of returning to work without restrictions.
By decision dated November 27, 2012, OWCP terminated appellant’s entitlement to
wage-loss compensation. It noted that Dr. Ropiak indicated that appellant could return to work
on July 20, 2012, and that appellant had submitted no additional medical evidence subsequent to
Dr. Ropiak’s May 4, 2012 reports. OWCP found that the weight of the medical evidence rested
with the opinion of Dr. Heist who provided a comprehensive evaluation and advised that
appellant had no residuals of the accepted right clavicle fracture and could return to work
without restriction. On November 28, 2012 it issued a proposed termination of medical benefits.
Appellant, through his attorney, timely requested a hearing. In medical reports dated
April 12 to June 8, 2012, Dr. Ropiak described appellant’s pre- and postoperative care. On
June 8, 2012 he indicated that appellant came in earlier than scheduled, hoping to be released to
light duty. Dr. Ropiak advised that appellant could drive but should not perform overhead
activities, should limit repetitive activities and lift nothing heavier than 10 pounds. Appellant
was to return in one month. On September 6, 2012 Dr. Ropiak indicated that appellant was
supposed to be seen prior to July 4, 2012 but at that time he had a second seizure, and had to be
placed in restraints which caused pinching and burning along the shoulder and incision line.
Physical examination demonstrated hypersensitivity at the medial and lateral aspect of the
incision consistent with paresthesias and had impingement signs. X-rays that day showed no
signs of loosening of the plate and screw fixation. Dr. Ropiak diagnosed right shoulder pain,
status postclavicle fracture and right shoulder impingement. He advised that the clavicle itself
was healed and not an issue and the pain about the incision was in the nerves. Dr. Ropiak noted
that appellant was scheduled for a partial knee replacement.
Appellant was not present at the hearing, held on March 25, 2013. His attorney asserted
that Dr. Ropiak’s reports indicated that appellant had continued residuals and needed physical
therapy. On May 9, 2013 appellant submitted a CA-7, claim for compensation, for the period
July 29 to November 27, 2012. The employing establishment indicated that appellant received
continuation of pay from April 10 to May 24, 2012 and that he had not returned to work since
that time. In a January 25, 2013 report, Dr. Laura E. Ross, a Board-certified osteopath
specializing in orthopedic surgery, noted a history that appellant fractured his clavicle on

3

April 9, 2012. She stated that he was being seen because he wanted his hardware removed
because his shoulder was painful and he felt there was looseness in the shoulder. Dr. Ross also
noted that the previous October appellant underwent a knee arthroplasty and had continued knee
pain and swelling. Physical examination demonstrated that the shoulder moved fully through
range of motion with no tenderness over the sternoclavicular joint. Dr. Ross recommended a
shoulder x-ray.
By decision dated June 12, 2013, an OWCP hearing representative affirmed the
November 27, 2012 decision. On October 29, 2013 appellant, through his attorney, requested
reconsideration. He submitted additional medical reports dated May 21 to June 25, 2013 in
which Dr. Ross indicated that appellant continued to have discomfort in his right shoulder with
tenderness on palpation over the subcutaneous hardware. Dr. Ross recommended hardware
removal. On August 22, 2013 she noted that appellant had a partial right knee arthroplasty the
previous October, in addition to the right clavicle surgery, and was also diagnosed with a seizure
disorder. Dr. Ross diagnosed painful right knee and painful hardware in the right shoulder. She
again recommended right shoulder surgery. On September 16, 2013 Dr. Ross reiterated that
appellant had painful right clavicle hardware. In a letter of medical necessity dated
November 14, 2013, she described the history of OWCP injury and indicated that when appellant
presented to her office on January 25, 2013, he felt there was looseness in his shoulder, felt pain
due to the hardware and wanted it removed. Dr. Ross indicated that appellant was tender over
the hardware and that, while the procedure was nonemergent, surgery was medically necessary
for appellant to experience relief from his continued pain. In a January 13, 2014 report, she
indicated that appellant threw a snowball on January 3, 2014 that aggravated his shoulder.
Dr. Ross diagnosed impingement tendinopathy of the right shoulder.
On November 25, 2013 OWCP informed appellant that before the claim for
compensation could be processed, he should furnish a work and leave analysis for the period
May 25 through July 29, 2012, and that if he returned to work prior to July 29, 2012, he should
submit a notice of recurrence. He was given 30 days to respond. No response was received.
In a February 18, 2014 decision, OWCP denied appellant’s request for reconsideration. It
noted that Dr. Ross did not address disability in her reports, which were therefore irrelevant to
the merit issue in this case.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with 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.1 Section 10.608(a) of the Code of Federal Regulations (C.F.R.)
provides that a timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence and/or argument that meets at least one of the standards
described in section 10.606(b)(2).2 This section provides that the application for reconsideration
must be submitted in writing and set forth arguments and contain evidence that either: (i) shows
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.608(a).

4

that OWCP erroneously applied or interpreted a specific point of law; or (ii) advances a relevant
legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent
new evidence not previously considered by OWCP.3 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.4
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated February 18, 2014 denying appellant’s application for review. Because there is no OWCP
merit decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the merits
of appellant’s claim.5
The Board finds that appellant has not established that OWCP erroneously applied or
interpreted the law to be without merit. With the October 29, 2013 reconsideration request,
appellant’s attorney asserted that appellant had continuing residuals of the accepted right clavicle
fracture. As the case remains open for medical benefits, this argument is irrelevant. The
attorney also generally asserted that appellant was entitled to wage-loss compensation.
However, this is not a new argument and has been thoroughly reviewed by an OWCP hearing
representative in its June 12, 2013 decision. 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.6 Consequently, appellant was not entitled to a review of the merits of the
claim based on the first and second above-noted requirements under section 10.606(b)(2).7
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted reports from Dr. Ross dated January 25, 2013 to January 13, 2014. However, Dr. Ross
did not discuss appellant’s ability to work in any of these reports. While she recommended that
the fixation hardware in appellant’s shoulder should be removed, as noted above, the case
remains open for medical treatment. OWCP has not issued a final decision regarding
authorization for surgery, and the Board’s jurisdiction extends only to the review of final OWCP
decisions.8 Appellant, therefore, did not submit relevant and pertinent new evidence not
previously considered by OWCP.
On appeal, appellant’s attorney also argued the merits of appellant’s claim. As noted
above, the Board does not have jurisdiction over the merits.
3

20 C.F.R. § 10.608(b)(1) and (2).

4

20 C.F.R. § 10.608(b).

5

For final adverse OWCP decisions issued on or after November 19, 2008, a claimant has 180 days to file an
appeal with the Board. See 20 C.F.R. § 501.3(e); R.C., Docket No. 10-2371 (issued July 14, 2011).
6

J.P., 58 ECAB 289 (2007).

7

20 C.F.R. § 10.606(b)(2).

8

20 C.F.R. § 501.2(c); E.L., 59 ECAB 405 (2008).

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As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or constitute relevant and pertinent new
evidence not previously considered by OWCP, it properly denied his reconsideration request.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Marion, IL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-633
Issued: June 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
On January 22, 2013 appellant filed an application for review of a December 18, 2012
decision of the Office of Workers’ Compensation Programs (OWCP), claim file number
xxxxxx530, which affirmed a May 8, 2012 decision denying appellant’s claim for a traumatic
lumbar injury filed on March 26, 2012.1 The appeal was docketed as No. 13-633.
In the December 18, 2012 decision, an OWCP hearing representative noted that appellant
had prior claims for her low back including a closed claim for “an injury of October 16, 2008
(file number xxxxxx735) that was accepted for a lumbar strain and lumbago. In addition, a claim
was accepted and administratively closed (file number xxxxxx631) on November 25, 2009, for a
back injury when she slipped on a wet floor.” The hearing representative noted reviewing the
other claim files and medical evidence, specifically stating “a review of the evidence of file
shows that in addition to the prior work-related back injuries, the claimant underwent lumbar
microdiscectomy in November 2011 for a nonwork-related back condition. An MRI scan
performed on April 10, 2012, showed evidence of the L5-S1 hemilaminectomy and discectomy.”
In the December 18, 2012 decision, the hearing representative noted that Dr. Jeffrey M. Jones’
1

On March 26, 2012 appellant a nursing assistant, alleged that on March 20, 2012 she was assisting a patient to
the restroom when the patient’s legs gave out and he fell causing appellant to be pinned underneath him and causing
injury to her low back.

August 14, 2012 report referenced that he saw appellant in 2011, prior to the claimed injury and
described symptoms similar to those coming from the claimed injury. Dr. Jones further noted
that appellant was status post the surgery and that the condition was aggravated by the injury.
The hearing representative further noted that “the claimant testified that she underwent back
surgery in November 2011 in the same area that was injured during the current injury.”
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, file number xxxxxx530, involves appellant’s claim for a
traumatic injury involving her low back, specifically that she sustained low back pain, lumbar
radiculitis, disc displacement and lumbar degenerative disc disease. In the December 18, 2012
decision, the hearing representative noted reviewing evidence and findings made in claim
numbers xxxxxx735 and xxxxxx631. The evidence also indicates that file numbers xxxxxx735
and xxxxxx631 may have evidence germane to claim number xxxxxx530.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, OWCP claims pertaining to appellant’s lumbar conditions
should be combined pursuant to OWCP procedures.2 This will allow OWCP to consider all
relevant claim files in developing appellant’s claim. Moreover, to consider appellant’s appeal at
this stage would involve a piecemeal adjudication of the issues in this case and raise the
possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.3
The case will be remanded to OWCP to combine case files numbers xxxxxx530,
xxxxxx735 and xxxxxx631. Following this and such other development as deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s claim.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the December 18, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the matter remanded to OWCP for further
proceedings consistent with this order.
Issued: June 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Louisville, KY,
Employer
__________________________________________

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

Docket No. 19-0096
Issued: June 24, 2019

Case Submitted on the Record

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

JURISDICTION
On October 16, 2018 appellant, through counsel, filed a timely appeal from an August 10,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from OWCP’s last merit decision, dated August 28, 2017, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 22, 2017 appellant, then a 53-year-old marine mechanic, filed an occupational
disease claim (Form CA-2) alleging that he sustained work-related binaural hearing loss. He
asserted that he worked every day around diesel engines, generators, air compressors, diesel
welders, air arc machines, and cranes without having proper hearing protection. Appellant
reported that he regularly worked 10-hour days, 4 to 7 days per week, but sometimes worked for
18 to 30 consecutive days. He indicated that he first became aware of his claimed condition and
its relationship to his federal employment on December 19, 2006. Appellant did not stop work.3
On the reverse side of the claim form appellant’s immediate supervisor indicated that appellant
first reported his claimed injury to him on December 19, 2006.
By development letter dated June 28, 2017, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the reported work exposures caused or aggravated his claimed hearing loss.
It provided an attached questionnaire for his completion, which posed various questions regarding
his employment history and exposure to hazardous noise in both federal and nonfederal settings.4
By separate letter of the even date, OWCP also requested that the employing establishment submit
information regarding appellant’s alleged exposure to workplace noise. It afforded both appellant
and the employing establishment 30 days to respond.
Appellant submitted audiograms, which were administered between December 28, 2000
and March 12, 2013.5 Most of the audiograms were signed by audiologists. Some of the
audiograms contain notations indicating that appellant has bilateral middle and high frequency
hearing loss.
By decision dated August 28, 2017, OWCP denied appellant’s claim for work-related
binaural hearing loss, finding that he had not established that the claimed injury and/or event(s)
occurred, as alleged. It noted that he had not provided a clear description of the events or specific
factors supporting that an injury occurred at work and therefore failed to establish the factual
component of fact of injury. OWCP noted that appellant had not responded to its June 28, 2017
development letter.

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Appellant also indicated that, while working on towboats, shop barges, and derricks around late 2005 to early
2006, he experienced ringing, hissing, and buzzing noises in his ears. He reported that these symptoms worsened and
that he now had hearing loss with accompanying loud ringing noise in his ears.
OWCP specifically requested appellant to, “List your employment history by [employing establishment,] job title,
and inclusive dates. Include all employment (federal and nonfederal) as well as military service. For each job title,
describe source(s) of noise, number of hours of exposure per day, and use of any safety devices to protect against
noise exposure. State when and what type of safety devices were provided.”
4

5

Most of the audiograms were obtained in the offices of a private provider named “Corporate Services.”

2

On July 27, 2018 appellant, through counsel, requested reconsideration of his claim and
submitted additional evidence. A federal occupational health form entitled, “Audiogram
History/Report,” was signed by a “nurse/technician” on January 23, 2017. In the section for
current occupational noise, it was noted that appellant was exposed to steady noise from machinery
for four days per week (8 to 10 hours per day) and intermittent noise from engines, air compressors,
and generators for four days per week. The document indicated that he was also exposed to
impulse noise from air arc machines and vibratory hammers for varying amounts of time and it
was noted that he always used hearing protection at work.6 Counsel also attached July 5, 2016 and
January 17, 2018 audiograms, produced by an audiologist, which showed binaural hearing loss.
By decision dated August 10, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted was
irrelevant or immaterial to the reason for the denial of his hearing loss claim, i.e., his failure to
provide a complete history of all employment and exposure to noise.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.7
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (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 If OWCP determines
that, at least one of these requirements is met, it reopens and reviews the case on its merits.9 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, it will deny
the request for reconsideration without reopening the case for review on the merits.10 To be timely,
a request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.11 The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.12

6

In the section for current nonoccupational noise, the form indicated that appellant was exposed to noise from
power tools and lawn equipment for two hours per month, and that hearing protection was always used.
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
9

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

10

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

11

Id. at § 10.607(a).

12

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

3

ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On July 27, 2018 appellant filed a timely request for reconsideration of OWCP’s
August 28, 2017 denial decision,13 but he did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a relevant legal argument not previously considered
by OWCP. Consequently, he is not entitled to review of the merits of his claim based on the first
and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).14
However, the Board finds that appellant submitted relevant and pertinent new evidence not
previously considered by OWCP, which entitles him to review of the merits of his claim based on
the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).15
In support of his timely request for reconsideration, appellant submitted an “Audiogram
History/Report” which was signed by a nurse/technician on January 23, 2017. In the section for
current occupational noise, it was noted that: he was exposed to steady noise from machinery for
four days per week (8 to 10 hours per day); intermittent noise from engines, air compressors, and
generators for four days per week; and impulse noise from air arc machines and vibratory hammers
for varying amounts of time. The form indicated that appellant always used hearing protection
while at work. In the section for current nonoccupational noise, the form indicated that he was
exposed to noise from power tools and lawn equipment for two hours per month, and that hearing
protection was always used.
The Board finds that this document constitutes pertinent new and relevant evidence
because it specifically addresses the underlying issue of this case, i.e., whether appellant has
submitted sufficient evidence to establish the factual component of fact of injury with respect to
his claim for an employment-related hearing loss. By decision dated August 28, 2017, OWCP
denied his claim because he failed to adequately respond to its request for a history of employment
and exposure to hazardous noise with details about the types and number of hours of noise
exposure per day. The January 23, 2017 Audiogram History/Report submitted by appellant in
connection with his timely request for reconsideration provides factual information which is
directly relevant to this matter.16
Thus OWCP’s denial of appellant’s request for review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a) constituted an abuse of discretion.17 Consequently, the case must be
13

See supra note 11.

14

See supra note 8.

15

Id.

16

Appellant also submitted July 5, 2016 and January 17, 2018 audiograms, which had been administered by an
audiologist. The submission of this audiometric examination evidence, in and of itself, would not require reopening
of appellant’s claim for review on the merits because such evidence is not relevant to the above-noted underlying
factual issue. See supra note 12.
17

M.P., Docket No. 17-1199 (issued March 1, 2018).

4

remanded for OWCP to conduct a merit review of the claim.18 Following this and such other
development as deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of
Workers’ Compensation Programs is reversed, and the case is remanded to OWCP for further
action consistent with this decision.
Issued: June 24, 2019
Washington, DC

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

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

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

18

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF THE AIR FORCE,
NATIONAL GUARD BUREAU, Syracuse, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1735
Issued: March 5, 2012

Case Submitted on the Record

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

JURISDICTION
On July 20, 2011 appellant, through his representative, filed a timely appeal from the
July 13, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
found him at fault for an overpayment. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant received a $4,994.61 overpayment from
November 8 to December 18, 2010; and (2) whether he was at fault in creating the overpayment,
thus precluding waiver.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 23, 1999 appellant, a 40-year-old aircraft mechanic, sustained an injury in
the performance of duty while helping to move a canopy off a maintenance stand to the floor.
OWCP accepted his claim for right wrist sprain and triangular fibrocartilage complex tear. In
2008, appellant received compensation for temporary total disability on the periodic rolls. He
received payments through direct deposit.
Appellant accepted an offer of modified work on July 2, 2010. On October 1, 2010 his
representative notified OWCP that the start date was November 8, 2010. On November 2, 2010
OWCP received confirmation of the start date from the employing establishment. Appellant
returned to work on November 8, 2010.
Appellant received a compensation payment for total disability on November 20, 2010.
On December 9, 2010 OWCP explained that it was reducing his compensation effective
November 8, 2010 to reflect his actual earnings in the modified position. Appellant received a
compensation payment for total disability on December 18, 2010.
OWCP made a preliminary determination that appellant received a $4,994.61
overpayment of compensation from November 8 to December 18, 2010.2 It found that he was at
fault in the creation of the overpayment because he accepted a payment that he knew or
reasonably should have known was incorrect: he was aware or should have been aware that
there was no entitlement to receive wage-loss benefits after returning to full-time work. OWCP
noted that its June 17, 2008 letter to appellant informing him that he would receive compensation
every 28 days and that he was responsible for informing OWCP upon return to any work and to
return all payments received for periods after he returned to work.
Appellant’s representative argued at the prerecoupment hearing that appellant was not at
fault for the first direct deposit. Appellant testified that, a couple of days after the first direct
deposit, he received a receipt in the mail showing the amount deposited and the date of deposit.
He believed that OWCP would eventually change his compensation rate to reflect his income.
On his overpayment recovery questionnaire, appellant explained that he returned to work
in the middle of a benefit period and that he was due some unknown payment of compensation -he did not know the numbers or what the benefit would be. He noted that he had always
received what OWCP stated he should receive. Appellant added that he had direct deposit and
could not control what was sent to his account.3 He informed OWCP of his reemployment.
In a decision dated July 13, 2011, an OWCP hearing representative found that appellant
was at fault in creating a $4,994.61 overpayment from November 8 to December 18, 2010. The
2

OWCP subtracted his gross entitlement -- $1,992.86 from October 24 to November 7, 2010 and $1,253.43 from
November 8 to December 18, 2010 -- from the gross amount paid for that same period or $7,440.00.
3

The direct deposit sign-up form explains that the agreement remains in effect until canceled by the recipient by
notice to the federal agency or by death or legal incapacity of the recipient. Upon cancellation by the recipient, the
recipient should notify the receiving financial institution that he or she is doing so.

2

hearing representative calculated that he received $7,440.00 for total disability from October 24
to December 18, 2010 but was entitled to only $2,445.39 due to his actual wages.
The hearing representative found that appellant was at fault on the grounds that he
accepted a payment which he knew or should have known to be incorrect. The hearing
representative noted that, for payments sent by electronic funds transfer, a notification of the date
and amount of payment appears on the statement from the recipient’s financial institution.4
Further, appellant testified that, a day or two after he received a compensation payment by direct
deposit, he separately received in the mail a receipt showing the amount of the payment and the
dates for which payment was made.5 The hearing representative found that the regulations,
together with this testimony, constituted sufficient evidence that he had the requisite knowledge
regarding the amount and period of the November 20, 2010 compensation payment. Given the
substantial difference between his compensation checks for temporary total disability and his
loss of wage-earning capacity after returning to work,6 the hearing representative found that
appellant should have known that he was accepting incorrect payments: “he did not have a
reasonable expectation that he would continue to receive compensation at the full compensation
rate following his return to work on November 8, 2010.” Having found appellant at fault, the
hearing representative denied waiver.
On appeal, appellant argues that OWCP misapplied S.H., Docket No. 10-499 (issued
November 29, 2010).
LEGAL PRECEDENT -- ISSUE 1
FECA places limitations on the right to receive compensation: While an employee is
receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, with certain exceptions.7 It is, therefore, well established that an employee is not
entitled to compensation for temporary total disability after returning to work.8
ANALYSIS -- ISSUE 1
Fact of overpayment is not in dispute. After appellant returned to work on November 8,
2010, he received two compensation checks for total disability, one on November 20, 2010 for
the period October 24 to November 20, 2010 and another on December 18, 2010 for the period
4

20 C.F.R. § 10.430 (“How does OWCP notify an individual of a payment made?”).

5

On page 16 of the hearing transcript, appellant stated that he received in the mail a receipt showing the amount
deposited and the date of deposit.
6

The record shows gross compensation of $3,720.00 on November 20 and December 18, 2010 and then gross
compensation of $856.00 beginning January 15, 2011.
7

5 U.S.C. § 8116(a).

8

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours a day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).

3

November 21 to December 18, 2010. As he was not totally disabled for these periods, he
received an overpayment of compensation. The Board will affirm OWCP’s July 13, 2011
decision on the issue of fact of overpayment.
In its preliminary determination, OWCP calculated the amount of the overpayment by
subtracting the gross compensation appellant should have received -- $1,992.86 from October 24
to November 7, 2010 and $1,253.43 from November 8 to December 18, 2010 -- from the gross
compensation paid for that same period or $7,440.00. But this gives an overpayment of
$4,193.71, not $4,994.61. Worksheets in the record show that appellant should have received
$1,992.86 in gross compensation for the 15-day period October 24 to November 7, 2010.9
Worksheets also show that he should have received $1,253.43 in gross compensation for the
41-day period November 8 to December 18, 2010.10 Subtracted from the $7,440.00 appellant did
receive over the combined 56-day period, these figures do not support the amount of
overpayment OWCP found. The Board will, therefore, set aside OWCP’s July 13, 2011 decision
on the issue of amount of overpayment and remand the case for further calculation.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he received
from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in reporting events which may affect entitlement to or the amount of benefits. A recipient who
has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which he knew or should
have known to be incorrect; (2) Failed to provide information which he knew or should have
known to be material; or (3) Accepted a payment which he knew or should have known to be
incorrect (this provision applies only to the overpaid individual).11
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he is being overpaid.12
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment because he accepted a
payment that he knew or should have known to be incorrect. The hearing representative relied
on appellant’s testimony that, several days after the first incorrect payment, he received in the
mail a receipt showing the amount deposited and the date of deposit. Such information,
9

A 28-day payment of $3,720.00 divided by 28 times 15 days is $1,992.86.

10

A weekly compensation amount of $214.00 divided by 7 times 41 days is $1,253.43.

11

20 C.F.R. § 10.433(a).

12

Id. § 10.433(b).

4

however, is immaterial to whether appellant had the requisite knowledge at the time of deposit.
As the Board explained in Tammy Craven,13 fault is defined by what the claimant knew or
should have known at the time of acceptance, which in direct deposit cases occurs upon deposit.
Knowledge gained after the fact -- in Craven, OWCP wrote to the claimant four days after the
incorrect payment was directly deposited to his bank account -- does not address the critical
question.
As the hearing representative observed, appellant did not have a reasonable expectation
that he would continue to receive compensation at the full compensation rate following his return
to work on November 8, 2010. OWCP knew that he had accepted a modified position.
Appellant’s representative notified OWCP a month in advance that November 8, 2010 was the
start date. Thus, prior to the direct deposit on November 20, 2010, there appeared to be no
reason to expect that OWCP would pay compensation for total disability beyond the date of
reemployment. The hearing representative offered no argument or evidence that appellant knew
or should have known that his November 20, 2010 payment would be incorrect. The Board
finds, therefore, that OWCP has not established fault with respect to the first incorrect payment.
With respect to the second incorrect payment, the question remains the same. To
establish fault OWCP must show that appellant knew or should have known that the
December 18, 2010 payment would also be incorrect. The hearing representative did not directly
address this issue. The hearing representative noted the substantial difference between
appellant’s checks for temporary total disability and his checks for loss of wage-earning capacity
after returning to work. Of course, appellant did not appreciate that comparison until he received
his first check for loss of wage-earning capacity on January 15, 2011. Again, information
obtained after the fact does not establish what he knew or should have known when the second
check was deposited on December 18, 2010.
A question arises whether, having received one incorrect payment on November 20,
2010, appellant should have expected another. The circumstances of this case answer in the
negative. Before the December 18, 2010 deposit, OWCP acknowledged appellant’s return to
work and explained that it was reducing his compensation effective November 8, 2010 to reflect
his actual earnings in the modified position. It appeared, therefore, that OWCP was taking action
to correct his compensation. Appellant had no reasonable expectation that OWCP would
continue to pay him for total disability.
The Board finds that appellant was not at fault in the creation of the overpayment he
received from November 8 to December 18, 2010. The Board will set aside OWCP’s July 13,
2010 decision on the issue of fault. The Board will remand the case for further development of
appellant’s financial circumstances and consideration of waiver. The Board will set aside
OWCP’s July 13, 2010 decision on the issue of recovery from continuing compensation, which
is not in posture pending a decision on waiver.
Appellant’s representative argues that OWCP misapplied S.H., Docket No. 10-499
(issued November 29, 2010). S.H. held that it is not appropriate to make a finding that a
claimant has accepted an overpayment by direct deposit until such time as a reasonable person
13

57 ECAB 689 (2006).

5

would have been aware that this overpayment had occurred, citing K.H., Docket No. 06-191
(issued October 30, 2006). This language varies from the acceptance and knowledge
components of fault, which are more clearly spelled out in Craven14 and should not be
interpreted to make acceptance of a payment dependent upon knowledge that the payment was
incorrect, a position argued by the Director in Craven but expressly rejected by the Board. In
S.H., the Board found that fault could not be imputed to the claimant for the first incorrect
payment. Under the circumstances of that case, however, the Board found that it could be
presumed that he knew the amount of compensation contained in subsequent direct deposit
checks. Those circumstances do not obtain in the present case, where OWCP notified appellant
before the second incorrect payment that it was reducing his compensation effective
November 8, 2010 to reflect his actual earnings in reemployment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from
November 8 to December 18, 2010. The Board finds that he was not at fault in creating this
overpayment. The Board further finds that the case is not in posture for decision on the issues of
amount of overpayment, waiver and recovery.

14

Because fault is defined by what a claimant knew or should have known at the time of acceptance, the
knowledge component of fault must precede acceptance. This is so regardless of whether compensation is paid by
paper check or direct deposit. Acceptance occurs when the check is negotiated. In direct deposit cases, this means
upon deposit. Thus, acceptance establishes the overpayment. Knowledge at the time of acceptance defines fault.

6

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed on the issue of fact of overpayment, is set aside on
the issue of amount of overpayment, is reversed on the issue of fault, is set aside on the issue of
recovery and is remanded for further action consistent with this opinion.
Issued: March 5, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7