United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Montgomery, AL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1290
Issued: April 7, 2011

Case Submitted on the Record

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

On April 6, 2010 appellant filed an application for review of a March 18, 2010 merit
decision of the Office of Workers’ Compensation Programs that terminated his schedule award
compensation. The appeal was docketed as No. 10-1290.1
On August 8, 2008 he was granted a schedule award for a 77 percent bilateral hearing
loss, or 154 weeks of compensation, to run from October 7, 2007 to September 18, 2010, at the
75 percent augmented compensation rate of $365.13, based on a weekly pay rate of $486.83 with
an effective date of pay of September 5, 1992.2 By decision dated March 18, 2010, the Office
terminated appellant’s schedule award compensation. It noted that his weekly pay rate for
compensation purposes was increased due to National Guard pay from $486.83 to $585.25 but
that his schedule award was terminated to avoid an overpayment because he had been paid costof-living increases in error. He was paid $345.03 in final schedule award compensation.
1

On October 24, 2007 the Office accepted that appellant, then a 70-year-old automotive worker, sustained an
employment-related bilateral hearing loss. On March 13, 2008 he filed a schedule award claim.
2

An Office memorandum indicated that appellant had an hourly pay rate of $12.13 which, when multiplied by
2087, yielded an annual pay rate of $25,315.32 which, when divided by 52, yielded a weekly pay rate of $486.83.

The Board has duly considered the matter and finds that the case is not in posture for
decision because the March 18, 2010 decision does not fully explain how the pay rate for
schedule award purposes was calculated and thus does not contain sufficient factual findings to
support its termination of appellant’s schedule award compensation. In determining whether a
claimant has discharged his or her burden of proof and is entitled to compensation benefits, the
Office is required by statute and regulation to make findings of fact.3 Office procedures further
specify that a final decision of the Office must include findings of fact and provide clear
reasoning which allows the claimant to “understand the precise defect of the claim and the kind
of evidence which would tend to overcome it.”4 These requirements are supported by Board
precedent.5
The record supports that appellant earned $12.18 an hour on the date disability began on
September 5, 1992, or the date he retired, and that he was entitled to include $98.41 received
each week for National Guard pay because this was a requirement of his federal employment.6
In calculating the rate of schedule award compensation, there is nothing of record that fully
explains how his pay rate for schedule award compensation purposes was determined.
A March 18, 2010 pay rate memorandum indicates that appellant’s weekly pay rate for
compensation purposes was $585.25, based on a weekly base pay of $486.83 plus additional
weekly pay of $98.41 for National Guard service. Adding $486.83 and $98.41 yields a total of
$585.24, not $585.25. The record indicates that appellant received gross compensation of
$2,145.00 every four weeks but does not provide any explanation as to how this amount was
computed.7 Printouts also describe the total schedule award compensation received by appellant,
and a compensation adjustment form dated March 18, 2010 noted that he received compensation
of $67,678.79 for the period October 7, 2007 to March 14, 2010 when his correct entitlement for
the period October 7, 2007 to September 18, 2010 was $68,023.82, yielding a net difference of
$345.03 still due on the schedule award. Again, no explanation was provided as to how the pay
rate was determined.8
As the record contains an insufficient factual findings as to how appellant’s schedule
award compensation was calculated, the March 18, 2010 decision will be set aside for further
development on this issue.
3

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office “shall contain findings of fact and a statement of reasons.”
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

5

See James D. Boller, Jr., 12 ECAB 45 (1960).

6

Id.

7

Computing compensation based on a $585.24 weekly pay rate yields monthly compensation of $1,755.72.

8

The Board notes that the February 11, 2010 notice of proposed termination, acknowledged by appellant in
March 2, 2010 correspondence, is not of record. On appeal appellant generally challenged the schedule award itself.
The Board does not have jurisdiction over that decision as the schedule award was issued on August 8, 2008, more
than one year prior to the filing of this appeal. 20 C.F.R. § 501.3(d)(2) (2008).

2

IT IS HEREBY ORDERED THAT the March 18, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to the Office for further
proceedings consistent with this order of the Board.
Issued: April 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JERRY L. PETTIS MEMORIAL MEDICAL
CENTER, Loma Linda, CA, Employer
__________________________________________

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

Docket No. 14-1879
Issued: February 19, 2015

Case Submitted on the Record

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

JURISDICTION
On August 26, 2014 appellant, through her attorney, filed an appeal from a June 27, 2014
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 met her burden of proof to establish that she had any
employment-related disability from June 24 to July 26, 2013 due to the accepted lumbar
condition.
On appeal, appellant’s attorney asserts that the June 27, 2014 decision is contrary to law
and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 4, 2010 appellant, then a 47-year-old nurse practitioner, filed a traumatic injury
claim alleging that she injured her thoracic and lumbar spine while administering intravenous
medication to an anxious patient that day. On June 20, 2012 OWCP accepted that she sustained
an employment-related lumbar sprain.2
An August 21, 2012 computerized tomography scan of the lumbar spine demonstrated
retrolisthesis of L5 on S1 and disc bulges at the L3-4 and L4-5 levels. A March 11, 2013
magnetic resonance imaging (MRI) scan study of the lumbar spine demonstrated a disc bulge at
L5-S1. In an April 29, 2013 report, Dr. Darren L. Bergey, an orthopedic surgeon, noted a
complaint of thoracolumbar and low back pain. Examination was deferred. He reviewed the
MRI scan study and diagnosed intermittent right leg radiculopathy, lumbar spondylosis, L5-S1
spondylolisthesis/disc degeneration, moderate foraminal stenosis at L4-5 with foraminal
compromise, and facet arthropathy at T12-L2. Dr. Bergey found that appellant was temporarily
partially disabled and could perform modified duty three days a weeks with no repetitive lifting,
pushing, or pulling greater than five pounds, and limited bending and stooping with sitting and
standing at will. He recommended radiofrequency ablation, physical therapy, a trial of
acupuncture, and a pain management consultation.
On May 15, 2013 an OWCP medical adviser opined that the therapy recommended by
Dr. Bergey was not medically necessary. On May 6, 2013 appellant accepted a modified job
within Dr. Bergey’s restrictions. The duties were described as making telephone calls and triage
consults for various specialties within the surgical department, stocking rooms, performing vital
signs for each new patient visit, checking the crash cart, escorting patients to rooms, and
assisting physicians with passing of instruments.
On May 22, 2013 Dr. Bergey advised that appellant should be excused from work that
day due to recent flare-ups. In a June 3, 2013 report, he reiterated his conclusions, again noting
that physical examination was deferred. Dr. Bergey indicated that appellant could continue to
work modified duty, three days a week. On June 5, 2013 he indicated that she was totally
disabled that day.
On June 17, 2013 appellant filed a (Form CA-7) claim for compensation for the period
June 17 to 21, 2013. The employing establishment indicated that she had used leave for the
period May 20 through June 14, 2013. On June 26, 2013 OWCP indicated that the additional
condition “other symptoms referable to back” had been accepted. In a telephone query dated
July 12, 2013, it asked the employing establishment if modified duty was available for appellant
for the claimed period of disability.
In a July 8, 2013 report, Dr. Bergey reiterated his diagnoses and conclusions, again
noting that physical examination was deferred. He indicated that appellant was totally disabled
until August 19, 2013, stating that she had continued pain that had not resolved.
2

OWCP noted that, when appellant’s claim was initially received, it appeared to be a minor injury with no lost
time from work but that the claim had been reopened because her medical bills had exceeded $1,500.00 and would
now be formally adjudicated.

2

In correspondence dated July 15, 2013, Don Grenier, workers’ compensation coordinator
with the employing establishment, indicated that appellant worked modified duty three days a
week from May 6 to 20, 2013, when she stopped and had not returned. He indicated that
modified duty was always available. Appellant’s supervisor, also indicated that modified duty
was always available. By letter dated July 16, 2013, OWCP informed appellant of the type of
medical evidence needed to support her disability claim.
In a July 18, 2013 letter of medical necessity, Dr. Bergey indicated that appellant had a
flare-up of pain that kept her from working June 4 to July 8, 2013. He stated that the pain was
“very likely” treatable, but OWCP would not approve recommended treatment and therefore she
was kept off even modified work.
On July 24, 2013 appellant filed a Form CA-7 claim for compensation for the period
June 24 to July 26, 2013.
By decision dated August 20, 2013, OWCP denied appellant’s claim for disability
compensation for the period June 17 to 21, 2013 because the medical evidence was insufficient
to establish entitlement. In correspondence also dated August 20, 2013, it informed appellant of
the medical evidence needed to support her claim for compensation for the period June 24 to
July 26, 2013.
Appellant, through her attorney, timely requested a hearing from the August 20, 2013
decision. In an August 19, 2013 report, Dr. Bergey again indicated that physical examination
was deferred and reiterated his diagnoses and treatment recommendations. He stated that
appellant could not work as even the most sedentary and minimal movements caused severe pain
after a full day of work and indicated that she remained totally disabled until
September 30, 2013. In a September 23, 2013 report, Dr. Bergey noted her complaints that
sitting, standing, and walking worsened her pain. Physical examination of the lumbar spine
demonstrated tenderness to palpation and decreased range of motion with pain. Sensory
examination of the lower extremities was intact to light touch and pinprick. Motor power was
5/5 in all modalities. Dr. Bergey reiterated his treatment recommendations and advised that
appellant remained totally disabled until November 4, 2013. The record also contains disability
slips dated June 3, July 8, and August 19, 2013, signed by Jame Lanier, a physician’s assistant.
In an October 2, 2013 decision, OWCP found the medical evidence insufficient and
denied appellant’s claim for disability compensation for the period June 24 to July 26, 2013. On
October 8, 2013 appellant, through her attorney, requested a hearing from the October 2, 2013
decision.
By report dated October 12, 2013, an OWCP medical adviser indicated that he had
reviewed the medical evidence of record. He recommended that the accepted conditions be
expanded to include aggravation of lumbar spondylosis with disc bulge at L5-S1 and suspected
facet arthropathy at multiple levels. The medical adviser recommended that a series of facet
injections or radiofrequency ablations be authorized.
In October 2013, OWCP referred appellant to Dr. John C. Steinmann, a Board-certified
osteopath specializing in orthopedic surgery, for a second opinion.

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On November 4, 2013 Dr. Bergey noted appellant’s continued complaint of pain. He
provided examination findings and reiterated his diagnoses and treatment recommendations.
Dr. Bergey indicated that appellant would be totally disabled until December 16, 2013, stating
that she was unable to work because standing, walking, and sitting aggravated her symptoms.
A December 2, 2013 MRI scan study of the lumbar spine demonstrated an annular fissure
at L1-2 and a disc protrusion at L5-S1 with foraminal narrowing and bilateral facet joint
hypertrophy.
In a report dated November 15, 2013 with a December 12, 2013 addendum,
Dr. Steinmann noted the history of injury, his review of medical records, and appellant’s
complaint of low back pain. He provided physical examination findings which included
decreased lumbar lordosis, lumbosacral tenderness, and significantly decreased lumbar range of
motion. Sensory, motor, and reflex examinations were normal. Dr. Steinmann diagnosed severe
mechanical low back pain emanating from L5-S1, related to the 2010 employment injury, which
caused a permanent aggravation of preexisting degenerative disc disease. He indicated that
appellant’s condition had deteriorated over three years, and that she met all appropriate criteria
for fusion surgery. Dr. Steinmann advised that she could not perform her regular duties for the
period June 17 through September 23, 2013 but could perform modified work with restrictions of
no prolonged standing, bending, and stooping with lifting restricted to less than 20 pounds. He
reviewed the December 2, 2013 MRI scan study, advising that it did not change his opinion. On
an attached work capacity evaluation Dr. Steinmann indicated that appellant could work eight
hours a day with temporary restrictions of sitting, standing, bending, and stooping limited to two
to four hours, and a 20-pound weight restriction.
Appellant was seen in pain management consultation on December 10, 2013 by
Dr. Jiensup Kim, a Board-certified physiatrist, who recommended lumbar facet blocks. On
December 16, 2013 Dr. Bergey reported that she had been seen for a pain management
consultation and was scheduled for a facet block. He noted his review of Dr. Steinmann’s report,
stating that their restrictions were in agreement but that appellant had been unable to tolerate
working sedentary duties for three days a week and was made totally disabled beginning in
June 2013, continuing to December 22, 2013. Dr. Bergey indicated that beginning January 2,
2014 she could work with restrictions of no pushing, pulling, or lifting greater than 20 pounds
with sedentary duties where she could sit or stand at will, with limited bending and stooping. On
December 23, 2013 Dr. Kim performed lumbar facet blocks.
In a December 26, 2013 correspondence, Mr. Grenier indicated that appellant’s sedentary
work remained available from the time she stopped work. He noted that she worked modified
duty on December 17, 18, and 19, 2013 but had not returned since that time. On January 10,
2014 Dr. Bergey reported that appellant was unsuccessful in completing a five-day workweek
performing modified duties, indicating that she stated that the position was mainly sitting that
exacerbated her symptoms and she stopped work due to pain. He advised that she could work
three days of modified duty weekly. On January 14, 2014 Dr. Bergey requested surgical
authorization, that was authorized by OWCP on January 24, 2014. Throughout the period of her
absence from work, appellant submitted additional claims for disability compensation.

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On February 12, 2014 a hearing was held regarding the claimed disability compensation
for the period June 17 to June 21, 2013. Appellant testified that after the June 4, 2010
employment injury she returned to regular duty after a few days and continued until June 2013
when repetitive bending aggravated her low back pain, and that she could not work modified
duty because it required too much sitting such that Dr. Bergey took her off work.
On February 24, 2014 Dr. Kim performed lumbar radiofrequency ablation. He and
Dr. Bergey continued to submit reports describing appellant’s condition and treatment. On
March 13, 2014 Dr. Bergey performed a spinal fusion at L5-S1. He submitted follow-up
treatment notes.
Appellant began receiving disability compensation, effective
February 24, 2014.
By decision dated April 23, 2014, an OWCP hearing representative affirmed the
August 20, 2013 decision denying appellant’s claim for disability compensation for the period
June 17 to 21, 2013.
On April 15, 2014 a hearing was held regarding the claimed disability period of June 24
to July 26, 2013. Appellant testified that the limited-duty position required her to sit too long,
which became painful. On June 9, 2014 she, through her attorney, requested reconsideration of
the April 23, 2014 decision.
In a June 27, 2014 decision, an OWCP hearing representative affirmed the October 2,
2013 decision, finding that appellant was not entitled to disability compensation for the period
June 24 to July 26, 2013.3
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.4 Disability is
thus not synonymous with physical impairment which may or may not result in incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.5 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
in the kind of work he or she was doing when injured.6 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative, and substantial medical evidence.7
3

The June 27, 2014 decision contains typographical errors in that it misidentifies the issue on page one and
indicates that OWCP’s decision being affirmed is dated October 8, 2013 rather than October 2, 2013.
4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

Corlisia Sims, 46 ECAB 963 (1995).

7

Tammy L. Medley, 55 ECAB 182 (2003).

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Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.8 The Board will not
require OWCP to pay compensation for disability in the absence of any medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.9 Causal relationship is a medical issue. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for total disability for the period June 24 to July 26, 2013 due
to a June 4, 2010 employment injury.
When appellant stopped work in June 2013, she was performing modified duties for eight
hours a day, three days a week. The job duties consisted of making telephone calls and triage
consults for various specialties within the surgical department, stocking rooms, performing vital
signs for each new patient visit, checking the crash cart, escorting patients to rooms, and
assisting physicians with passing of instruments. The physical restrictions required no pushing,
pulling, or lifting over five pounds, sitting and standing at will, and limited bending and
stooping. These were based on restrictions provided by her orthopedic surgeon, Dr. Bergey, who
advised on April 29, 2013 that she could work three days a week with the specific restrictions
listed.
Dr. Bergey submitted a number of treatment notes. On April 29, 2013 he noted a
complaint of thoracolumbar and low back pain. Examination was deferred. Dr. Bergey
reviewed a March 11, 2013 MRI scan study and diagnosed intermittent right leg radiculopathy,
lumbar spondylosis, L5-S1 spondylolisthesis/disc degeneration, moderate foraminal stenosis at
L4-5 with foraminal compromise, and facet arthropathy at T12-L2. As noted above, he indicated
that appellant was partially disabled and could perform modified duty three days a weeks with no
repetitive lifting, pushing, pulling greater than five pounds, and limited bending and stooping
with sitting and standing at will. On May 22, 2013 Dr. Bergey advised that she should be
excused from work that day due to recent flare-ups, and on June 3, 2013 reiterated his
conclusions, again noting that physical examination was deferred. He indicated that appellant
could continue to work modified duty, three days a week. In a July 8, 2013 report, Dr. Bergey
reiterated his diagnoses and conclusions, again noting that physical examination was deferred.
He indicated that appellant was totally disabled until August 19, 2013, as she had pain that had
not resolved. In a July 18, 2013 letter of medical necessity, Dr. Bergey indicated that appellant
8

Laurie S. Swanson, 53 ECAB 517 (2002).

9

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

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had a flare-up of pain that kept her from working June 4 to July 8, 2013. He stated that the pain
was “very likely” treatable, but OWCP would not approve recommended treatment and therefore
she was kept off even modified work.
In an August 19, 2013 report, Dr. Bergey again indicated that examination was deferred
and reiterated his diagnoses and recommendations. He stated that appellant could not work as
even the most sedentary and minimal movements caused severe pain after a full day of work and
indicated that she was totally disabled until September 30, 2013. In a September 23, 2013 report,
Dr. Bergey noted appellant’s complaints that sitting, standing, and walking worsened her pain.
At that time he reported examination findings of tenderness to palpation and decreased range of
motion with pain. Sensory examination of the lower extremities was intact to light touch and
pinprick. Motor power was 5/5 in all modalities. Dr. Bergey reiterated his treatment
recommendations and advised that appellant remained totally disabled until November 4, 2013.
In his later reports, he merely generally advised that she was totally disabled beginning in
June 2013.
The Board initially notes that the reports from Ms. Lanier are not considered medical
evidence as a physician assistant is not a physician as defined under FECA and therefore any
report from such individual does not constitute competent medical evidence which, in general,
can only be given by a qualified physician.11
The Board finds Dr. Bergey’s reports insufficient to meet appellant’s burden of proof.
There is no indication that the physician performed a physical examination until September 23,
2013, several months after the period of claimed disability. The Board has long held that
findings on examination are needed to justify a physician’s opinion that an employee is disabled
from work.12 Moreover, the accepted conditions are lumbar sprain and other symptoms referable
to the back. Dr. Bergey diagnosed intermittent right leg radiculopathy, lumbar spondylosis, L5S1 spondylolisthesis/disc degeneration, moderate foraminal stenosis at L4-5 with foraminal
compromise, and facet arthropathy at T12-L2, none of which have been accepted as employment
related. The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.13
While Dr. Bergey indicated that appellant’s modified work duties caused severe pain
such that she could not work, he did not display knowledge of her specific modified job duties or
specifically explain why she was precluded from performing her modified position beginning in
June 2013. He merely indicated that she had flare-ups of pain and stated that he kept her from
performing even sedentary duty until OWCP approved recommended treatment. A physician’s
opinion on causal relationship between a claimant’s disability and an employment injury is not
dispositive simply because it is rendered by a physician. To be of probative value, Dr. Bergey
11

George H. Clark, 56 ECAB 162 (2004). See 5 U.S.C. § 8101(2).

12

Supra note 8.

13

Sandra D. Pruitt, 57 ECAB 126 (2005).

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must provide rationale for the opinion reached. Where no such rationale is present, the medical
opinion is of diminished probative value.14 Dr. Bergey did not indicate an objective worsening
of appellant’s condition, and his statements regarding her ability consisted primarily of a
repetition of her complaints that she hurt too much to work. This is not a basis for payment of
compensation.15
In a report dated November 15, 2013 with a December 12, 2013 addendum,
Dr. Steinmann, OWCP referral physician, noted the history of injury, his review of medical
records, and appellant’s complaint of low back pain. He provided physical examination findings
and diagnosed severe mechanical low back pain emanating from L5-S1, related to the 2010
employment injury, which caused a permanent aggravation of preexisting degenerative disc
disease. Although Dr. Steinmann advised that appellant could not perform her regular duties for
the period June 17 through September 23, 2013, he indicated that she could perform modified
work for eight hours a day with temporary restrictions of no prolonged standing, bending, and
stooping, with lifting restricted to less than 20 pounds. The Board notes that these restrictions
comported with those of the modified position she was performing when she stopped work in
June 2013. Thus, Dr. Steinmann did not support that appellant was disabled from her modified
position for the period at issue.
Appellant did not submit sufficient rationalized medical opinion evidence to establish
that she was unable to work from June 24 to July 26, 2013 due to the accepted lumbar condition.
As she failed to establish that she was disabled, she is not entitled to wage-loss compensation for
claimed periods.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she was entitled to any employmentrelated disability from June 24 to July 26, 2013 due to her accepted employment injury.

14

See S.B., Docket No. 13-1162 (issued December 12, 2013).

15

Supra note 8.

16

N.R., Docket No. 14-114 (issued April 28, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the June 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 19, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT AGENCY, Los Angeles, CA,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0127
Issued: November 12, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 6, 2020 appellant, through counsel, filed an appeal from a September 3,
2020 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-0127.
The Board, having duly considered the matter, notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 This
jurisdiction encompasses any final decision issued by OWCP within 180 days of the date appellant
filed his appeal. 3 The case record as transmitted to the Board does not contain a final adverse
decision of OWCP issued within 180 days from the date of docketing of the current appeal.
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.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

3

20 C.F.R. § 501.3(e).

Following a preliminary review, by decision dated September 3, 2020, OWCP’s hearing
representative vacated the July 22, 2020 decision of OWCP and remanded the case for additional
actions and further development of the medical evidence by OWCP. As such this case is in an
interlocutory posture.4 As there is no final adverse decision issued by OWCP over which the
Board may properly exercise jurisdiction, the Board concludes that the appeal docketed as No.
21-0127 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0127 is dismissed.
Issued: November 12, 2021
Washington, DC

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

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

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

See 20 C.F.R. § 501.2(c)(2), which provides: “There will be no appeal with respect to any interlocutory matter
decided (or not decided) by OWCP during the pendency of a case”; see also T.D., Docket No. 19-1506 n.4 (issued
November 4, 2020); K.K., Docket No. 19-0652 (issued September 19, 2019).
4

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Liberty Lake, WA, Employer
__________________________________________

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

Docket No. 19-1880
Issued: April 7, 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 September 6, 2019 appellant filed a timely appeal from an August 6, 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 OWCP properly determined that appellant received an
overpayment of compensation in the amount of $44,107.20 for the period August 1, 2014 through
November 10, 2018, for which he was not at fault, as he concurrently received FECA wage-loss
1
The Board notes that following the August 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

compensation and Social Security Administration (SSA) age-related retirement benefits, without
an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $600.00
every 28 days from appellant’s continuing compensation benefits.
FACTUAL HISTORY
This case has previously been before the Board on other issues.3 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 December 19, 2003 appellant, then a 55-year-old rural route carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date he slipped on ice and fell, landing on his right
arm and leg while in the performance of duty. He stopped work that day. On January 27, 2004
OWCP accepted appellant’s claim for right shoulder, knee, and thigh strains. On April 29, 2004
appellant returned to part-time limited-duty work for four hours a day. He returned to full-time
light-duty work on May 3, 2005. Appellant stopped work again on October 23, 2006.4 On
February 1, 2008 OWCP expanded the acceptance of appellant’s claim to include left knee
meniscal tear. On February 29, 2008 it expanded the acceptance of his claim to include lumbar
strain. On June 23, 2008 OWCP entered appellant on the periodic rolls for wage-loss
compensation, effective May 7, 2008. It subsequently expanded the acceptance of his claim to
include additional conditions including right rotator cuff syndrome, osteoarthritis of the right knee,
venous embolism of the lower extremity, right knee joint replacements, and mechanical failure of
the prosthetic joint implant as well as total left knee joint replacements.
On October 16, 2018 OWCP received a completed Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form from SSA, which reported that appellant had been in
receipt of SSA age-related retirement benefits since August 2014. SSA indicated that appellant’s
monthly SSA rate with FERS was $1,137.70 beginning August 2014, while the monthly SSA rate
without FERS was $299.80. It provided that from December 2014 through November 2016
appellant’s monthly SSA rate with FERS was $1,157.00, while his SSA rate without FERS was
$304.80. The form further indicated that beginning December 2016 through November 2017, his
monthly SSA rate with FERS was $1,160.40, while the rate without FERS was $305.70. For the
period beginning December 2017, appellant’s monthly SSA rate with FERS was $1,183.60, while
his rate without FERS was $311.80.
On November 16, 2018 OWCP informed appellant that he had been receiving dual FERS
and SSA age-related retirement benefits. It further informed him that his FECA benefits must be
adjusted based on the FERS portion of SSA benefits that were attributable to federal service.
3

Docket No. 08-1270 (issued July 2, 2009).

4

On February 5, 2007 appellant filed an occupational disease claim (Form CA-2) alleging that he had aggravated
his underlying degenerative disc disease developing left leg radiculopathy, and left knee strain due to factors of his
federal employment. OWCP assigned File No. xxxxxx658, accepted the claim on January 22, 2008 for left knee
lateral meniscus tear, and on February 1, 2008 explained that this condition was accepted as a consequence of his
accepted right knee injury in his December 19, 2003 claim under Master File No. xxxxxx374, which is the current
claim.

2

OWCP indicated that appellant’s FECA benefits would be reduced from $3,828.00 to $2,645.48
every 28 days.
On January 3, 2019 OWCP notified appellant that it made a preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $44,107.20
because he received FECA wage-loss compensation benefits concurrently with SSA age-related
retirement benefits for the period August 1, 2014 through November 10, 2018. It noted that the
SSA had confirmed that a portion of his SSA benefits were attributed to his years of federal service
as an employee under the FERS retirement program and that portion required an offset of his
FECA compensation benefits until November 11, 2018 when his monthly compensation for wage
loss was adjusted. OWCP explained that it had calculated the overpayment of compensation by
determining the difference between appellant’s SSA rates with and without FERS for each period,
and then multiplying that amount by the number of days in each period. The FERS offset
calculation worksheet indicated that OWCP had utilized a 28-day FERS offset amount of $773.45
for August 1, 2014 through November 30, 2014, $786.64 for December 1, 2014 through
November 30, 2016, $788.95 for December 1, 2016 through November 30, 2017, and $804.74 for
December 1, 2017 through November 10, 2018. Using these figures, OWCP calculated that the
total overpayment amount was $44,107.20. It found that he was without fault in the creation of
the overpayment. OWCP requested that he complete an enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documentation. Additionally, it
notified appellant that, within 30 days of the date of the letter, he could request a final decision
based on the written record or request a prerecoupment hearing.
In an overpayment action request form dated January 18, 2019, appellant requested a
prerecoupment hearing with a representative of OWCP’s Branch of Hearings and Review and also
requested waiver of recovery of the overpayment as he was found to be without fault.
On January 18, 2019 appellant submitted a completed Form OWCP-20 and indicated that
he had $30,180.00 in cash. He listed his monthly income as $1,216.50 in SSA benefits, $555.00
in Supplemental Security Income, $6,200.00 in Department of Veterans Affairs’ benefits, and
$2,700.00 in FECA benefits for a total of $10,671.50. Appellant listed monthly expenses including
$1,858.00 in rent or mortgage, $750.00 in food, $100.00 in clothing, $415.00 in utilities, $600.00
in miscellaneous expenses, $525.00 in money owed to SSA, and $1,700.00 in a bank loan totaling
$5,948.00. He further indicated that he had $25,000.00 in cash as well as $3,000.00 in his checking
account for a total of $28,000.00 on hand.
On May 17, 2019 appellant testified before an OWCP hearing representative and disagreed
that he should be required to repay the overpayment.
By decision dated August 6, 2019, OWCP’s hearing representative finalized the
preliminary overpayment determination that appellant had received an overpayment of
compensation in the amount of $44,107.20 for the period August 1, 2014 through
November 10, 2018. She determined that appellant was not at fault in the creation of the
overpayment. OWCP’s hearing representative denied waiver of recovery of the overpayment as
there was no evidence that recovery would defeat the purpose of FECA, finding appellant’s
monthly income was $10,879.63 including $1,771.50 in combined SSA benefits, monthly FECA
benefits of $2,908.13, and other income of $6,200.00 totaling $10,879.63 with reported monthly

3

expenses of $5,948.00 resulting in approximately $4,931.63 in income over debt each month which
exceeded the statutory amount of $50.00. She further found that there was no evidence that
recovery would be against equity and good conscience. The hearing representative required
recovery of the overpayment by deducting $600.00 every 28 days from appellant’s continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.5 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.7 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefits earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$44,107.20 for the period August 1, 2014 through November 10, 2018, for which he was not at
fault, because he concurrently received FECA wage-loss compensation and SSA age-related
retirement benefits, without an appropriate offset.
As noted above, a claimant cannot receive both FECA compensation for wage loss and
SSA age-related retirement benefits attributable to federal service for the same period.9 The
information provided by SSA established that appellant received SSA age-related retirement
benefits that were attributable to federal service during the period August 1, 2014 through
November 10, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
8

FECA Bulletin No. 97-09 (February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

9
5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).

4

respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided its rates with FERS, and without FERS for specific periods
commencing August 1, 2014 through November 10, 2018. OWCP provided its calculations for
each relevant period based on a FERS offset calculation worksheet and in its January 3, 2019
preliminary overpayment determination.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period August 1, 2014 through November 10, 2018 and finds that an overpayment of
compensation in the amount of $44,107.20 was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.11
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.12
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.13 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.14
Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse.15

10

L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

11
5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; A.F., Docket No. 19-0054 (issued
June 12, 2019).
12

A.C., Docket No. 18-1550 (issued February 21, 2019); Robert Atchison, 41 ECAB 83, 87 (1989).

13

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
14

N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April 26, 2019); id. at
Chapter 6.400.4.a(3).
15

20 C.F.R. § 10.437(a)(b).

5

OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.17
OWCP procedures provide that a finding that a type of expense is ordinary and necessary
does not mean that the amount is ordinary and necessary. The burden is on the overpaid individual
to show that the expenses are reasonable and needed for a legitimate purpose. If the claims
examiner or hearing representative determines that the amount of certain expenses is not ordinary
and necessary, he or she must state, in writing, the reasons for the determination. The
determination should be supported by rationale, which may include utilizing statistics from the
Bureau of Labor Statistics that show that the overpaid individual’s expenses exceed that of the
range for the general population. OWCP should be careful to avoid counting an expense twice
when totaling the overpaid individual’s ordinary and necessary living expenses. For example, if
the overpaid individual’s credit card debt is already calculated as a fixed and miscellaneous living
expense, the credit card expense(s) should not be added again as consumer debt expense. If the
amount is added again, it would result in an excessive total for the overpaid individual’s ordinary
and necessary living expenses, and would make the individual appear less able to repay his or her
overpayment than would actually be the case. Furthermore, OWCP should ensure that the monthly
expense used for each credit card reflects only the minimum payment required by the creditor.
The minimum amount should be verified, if necessary, by requiring the overpaid individual to
submit copies of his or her monthly billing statement(s).18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.19 OWCP considered appellant’s financial information, as reported in appellant’s
statements, to determine if recovery of the overpayment would defeat the purpose of FECA or if
recovery would be against equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary and necessary living expenses. Based on
16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

Id. at § 10.438(b).

18

Supra note 13 at Chapter 6.400.4(b)(2).

19

20 C.F.R. § 10.436.

6

appellant’s January 18, 2019 overpayment recovery questionnaire and the record, his total monthly
income of $10,879.63 and subtracting $5,948.00 in monthly expenses, resulted in $4,931.63 in
income over debt each month. Thus, based on appellant’s statements and the record, appellant’s
monthly income exceeded his ordinary and necessary living expenses by more than $50.00, he did
not need substantially all of his income for ordinary and necessary living expenses such that
recovery would defeat the purpose of FECA.20
Additionally, the evidence does not demonstrate that recovery of the overpayment would
be against equity and good conscience. Appellant did not submit evidence to substantiate that he
would experience severe financial hardship in attempting to repay the debt, or that in reliance on
such payment he gave up a valuable right or changed his position for the worst. Therefore, OWCP
properly found that recovery of the overpayment would not defeat the purpose of FECA or be
against equity and good conscience.21
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, the Board finds that OWCP
properly denied waiver of recovery of the overpayment.22
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$600.00 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $600.00, OWCP explained how it considered the factors set
forth at 20 C.F.R. § 10.441(a) in setting the amount of repayment from continuing compensation
benefits to minimize hardship, while liquidating the debt, as appellant had financial resources
sufficient for more than ordinary needs.24 Thus, OWCP did not abuse its discretion in setting the

20

G.L., Docket No. 19-0297 (issued October 23, 2019).

21

N.J., supra note 14; V.T., Docket No. 18-0628 (issued October 25, 2018).

22

D.M., Docket No. 17-0810 (issued October 2, 2017).

23

20 C.F.R. § 10.441(a); A.F., supra note 11; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

24

D.S., Docket No. 18-1447 (issued July 22, 2019).

7

rate of recovery.25 The Board therefore finds that OWCP properly required recovery of the
overpayment from appellant’s continuing compensation payments at the rate of $600.00 every 28
days.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$44,107.20 for the period August 1, 2014 through November 10, 2018, for which he was not at
fault, as he concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly required recovery of the overpayment by deducting
$600.00 every 28 days from his continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 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

25

T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

8


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

)
)
)
)
)
)
)
)

Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 14-14
Issued: April 24, 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 9, 2013 appellant, through his representative, filed a timely appeal from a
September 11, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
that found an overpayment of compensation. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $4,049.14 for the period October 28 through December 15, 2012 as he received FECA
compensation after his benefits were terminated effective October 28, 2012; and (2) whether
OWCP properly found appellant at fault in the creation of the overpayment.
1
2

5 U.S.C. §§ 8101-8193.

Appellant requested oral argument but did not respond to the December 12, 2013 letter from the Clerk of the
Appellate Boards to confirm the need for oral argument. The Board has decided the appeal on the record as
submitted.

On appeal, appellant asserted that he was not informed that his compensation would stop
and that his physician did not agree with OWCP’s referral physician.
FACTUAL HISTORY
On August 17, 2010 appellant, then a 48-year-old city carrier, twisted his right ankle and
fell. He stopped work on August 18, 2010 and returned on August 26, 2010. The claim was
accepted for bilateral ankle sprain and sprains of the neck, right shoulder and upper arm. On
October 26, 2010 Dr. Fernando Moya, a Board-certified orthopedic surgeon, performed an
arthroscopy and right subacromial decompression with distal clavicle excision and
acromioclavicular (AC) joint debridement for a partial rotator cuff tear. Appellant received
continuation of pay and wage-loss compensation. He was placed on the periodic compensation
rolls.3
A March 31, 2011 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated postoperative changes and thickening consistent with tendinopathy. On April 13,
2011 Dr. Moya described the MRI scan findings and noted appellant’s complaint of discomfort
with certain mechanical movements such as pushing and pulling. The right shoulder evaluation
showed localized tenderness and pain with crepitus and some decreased motion. Dr. Moya
diagnosed right shoulder impingement syndrome and rotator cuff tendinosis, right shoulder AC
joint pain and post-traumatic right shoulder status post arthroscopic surgery. He advised that
appellant could perform light-duty work with no heavy lifting, pushing or pulling. On a May 13,
2011 form report, Stephanie Rasbury, a physician’s assistant, diagnosed right shoulder status
post arthroscopic rotator cuff repair. She advised that appellant could perform light duty with no
lifting greater than 25 pounds with the right upper extremity.
In 2012, OWCP referred appellant to Dr. Gilbert D. Beauperthuy, a Board-certified
osteopath specializing in orthopedic surgery, for a second opinion evaluation. In an August 10,
2012 report, Dr. Beauperthuy advised that appellant’s bilateral ankle and neck sprains had
resolved. He diagnosed status post right shoulder rotator cuff tendon strain with impingement
and subacromial decompression. Dr. Beauperthuy found that appellant was capable of returning
to his date-of-injury job, full time and that no further medical treatment was required.
In an August 30, 2012 letter, OWCP proposed to terminate appellant’s medical and
wage-loss benefits. It found that the weight of the medical evidence rested with the opinion of
Dr. Beauperthuy who found that appellant had no residuals of the accepted conditions.
Appellant was given 30 days to submit further evidence. On September 24, 2012 he disagreed
with the proposed termination and requested a second opinion.
On October 26, 2012 OWCP finalized the termination of appellant’s compensation
benefits, effective October 27, 2012.

3

The record indicates that appellant received a third-party settlement for this claim.

2

On December 3, 2012 appellant requested a hearing.4
In correspondence dated December 12, 2012, the employing establishment advised that,
although appellant’s wage-loss benefits had been terminated, he continued to receive
compensation on the periodic compensation rolls.
In a December 12, 2012 treatment record, Dr. Moya noted that appellant had not been
seen since May 13, 2011. He discussed appellant’s surgical history and stated that he had been
placed with restrictions of no heavy lifting, pushing or pulling greater than 25 pounds. Right
shoulder examination demonstrated tenderness and mild swelling of the AC joint with deltoid
and tuberosity tenderness and crepitus with adduction of the shoulder. Cross chest, flexion,
adduction, pronation and supination tests were positive. Strength and range of motion were
diminished on the right.
By decision dated December 31, 2012, OWCP denied appellant’s request for a hearing on
the grounds that it was untimely.
On January 31, 2013 OWCP issued a preliminary determination that appellant received a
$5,049.14 overpayment of compensation for the period October 28 through December 15, 2012
because he received wage-loss compensation after his benefits were terminated. Appellant was
found at fault in the creation of the overpayment because he accepted payments that he knew or
should have known to be incorrect. He was provided an overpayment action request form and an
overpayment questionnaire. Computer print-outs in the record indicate that appellant received
compensation by check in the amount of $5,049.14 for the period October 28 through
December 15, 2012.5
Appellant disagreed that an overpayment occurred and requested a prerecoupment
hearing. He also submitted an overpayment questionnaire. Appellant was not present at the
hearing held on June 12, 2013. Appellant’s representative agreed that a $5,049.14 overpayment
had been created but asserted that appellant was not at fault because he did not receive the
termination decision until late. He further argued that a conflict in medical evidence was created
between the opinions of Dr. Moya, appellant’s attending physician, and Dr. Beauperthuy, an
OWCP referral physician. The hearing representative questioned some of the expenses listed on
the overpayment questionnaire.
By letter dated June 28, 2013, appellant’s representative advised that appellant’s credit
card debt had been liquidated through a bankruptcy process and that he had three dependents, a
wife and two children.

4

The record indicates that on November 13, 2012 appellant called OWCP stating that he had received
correspondence from the employing establishment directing him to return to work. He stated that he did not receive
the decision dated October 26, 2012. On that date OWCP forwarded a copy of the October 26, 2012 decision to
appellant.
5

Two checks were issued, one for the period October 21 through November 17, 2012 and the second for the
period November 18 through December 15, 2012.

3

On September 11, 2013 an OWCP hearing representative finalized the overpayment
decision, finding that appellant was at fault in creating the $5,049.14 overpayment because he
received wage-loss compensation after his benefits were terminated effective October 28, 2012.6
The hearing representative found that, as appellant was at fault, he was not entitled to waiver and
set repayment at $150.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.7 Section 8129(a) of FECA provides that, when an overpayment has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by OWCP, by decreasing later payments to which the individual is
entitled.8 Section 10.500 of OWCP regulations provide that “compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.”9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,049.14 for the period October 28 through
December 15, 2012. The record reflects that OWCP terminated his wage-loss compensation
benefits effective October 28, 2012; however, he continued to receive monetary benefits through
December 15, 2012.10
OWCP print-outs reflect that checks in the amount of $2,885.22 for 28 days of wage-loss
compensation were sent to appellant on November 17 and December 15, 2012, for the period
October 21 through December 15, 2012. Appellant’s wage-loss compensation was terminated as
of October 28, 2012. An OWCP worksheet establishes that his compensation for the period
October 28 through December 15, 2012 totaled $5,049.14.
As to appellant’s assertion on appeal that his physician and OWCP’s referral physician
did not agree, although Dr. Moya provided physical examination findings regarding appellant’s
right shoulder in a December 12, 2012 report, he noted that he had not seen appellant since
May 13, 2011 and the medical report that day was completed by a physician’s assistant and not

6

Regarding the assertion that appellant did not timely receive the October 26, 2012 decision, the hearing
representative noted that, as the decision was properly addressed and not returned, a presumption was raised that the
correspondence sent was received by the addressee.
7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

20 C.F.R. § 10.500.

10

Appellant did not file an appeal with the Board of the October 26, 2012 termination decision.

4

by Dr. Moya.11 The last report from Dr. Moya was dated April 13, 2011. Appellant had not
worked since his right shoulder surgery on October 26, 2010. In the December 12, 2012 report,
Dr. Moya did not discuss whether appellant’s condition was caused by the August 17, 2010
employment injury or why he continued to have restrictions due to this injury. OWCP referral
physician, Dr. Beauperthuy, provided a comprehensive report on August 10, 2012 in which he
described physical examination findings and advised that appellant had no residuals of the
accepted conditions. OWCP issued a decision on October 26, 2012 that terminated appellant’s
compensation. No appeal from that decision was made to the Board within 180 days.12
Therefore, the termination decision is not within the jurisdiction of the Board on this appeal.
The Board finds that, as appellant received monetary compensation after his benefits
were terminated, an overpayment was created from October 28 through December 15, 2012.13
The fact and amount of overpayment are affirmed.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”14
Section 10.433(a) of OWCP regulations provide that 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 or she receives 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 in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she

11

Reports from a physician’s assistant are not considered medical evidence as a physician’s assistant is not
considered a physician under FECA. Ricky S. Storms, 52 ECAB 349 (2001). Section 8101(2) defines the term
“physician” to include surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2).
12

See 20 C.F.R. § 501.3(e).

13

The Board notes that in correspondence dated June 28, 2013 appellant’s representative indicated that his credit
card debt had been liquidated through a bankruptcy process. There is no further evidence of record concerning a
bankruptcy proceeding.
14

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

5

knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”15
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.16
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
he accepted payments that he knew or should have known to be incorrect. While appellant
asserts on appeal that he did not timely receive the October 26, 2012 decision in which his
compensation benefits were terminated; the record establishes that the decision was sent to his
address of record. The Board has held that, in the absence of evidence to the contrary, it is
assumed that a notice properly mailed to an individual in the ordinary course of business was
received by that individual. This is known as the mailbox rule.17 A properly addressed copy of a
decision is in the case record, together with the mailing custom or practice of OWCP. This
raises the presumption that the original was received by the addressee.18
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives are proper.19 The recipient must show good faith and
exercise a high degree of care in reporting events that may affect entitlement to or the amount of
benefits.20
In this case, appellant received compensation by check which listed the dates of
compensation entitlement. He did not return the compensation checks dated November 17 and
December 15, 2012. The Board finds that appellant knew or should have known that at the time
his monetary compensation was terminated, effective October 28, 2012, that he was not entitled
to additional wage-loss compensation. Appellant had the obligation to return payments he knew
or should have known were incorrect.21 Under section 10.433(a) of OWCP regulations, he is at
fault and is not entitled to waiver of the overpayment in compensation.22 Consequently, the
overpayment must be recovered.
15

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

16

Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

17

See Joseph R. Giallanza, 55 ECAB 186 (2003).

18

See Levi Drew, Jr., 52 ECAB 442 (2001).

19

Danny E. Haley, 56 ECAB 393 (2005).

20

Sinclair L. Taylor, supra note 15.

21

Id.

22

Id.

6

With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.23 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.24
CONCLUSION
The Board finds that appellant was at fault in the creation of an overpayment in
compensation in the amount of $5,049.14 for the period October 28 through December 15, 2012.
As appellant was at fault, he is entitled to waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 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

23

Cheryl Thomas, 55 ECAB 610 (2004).

24

Id.

7