United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Boston, MA, Employer
__________________________________________

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Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2320
Issued: September 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 11, 2007 appellant, through his attorney, filed a timely appeal from a
June 7, 2007 merit decision of the Office of Workers’ Compensation Programs denying his
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition
causally related to his accepted condition of right foot hallux rigidus.
FACTUAL HISTORY
On November 22, 2004 appellant, then a 54-year-old mail handler, filed a recurrence of
disability claim on September 14, 2004 causally related to a May 8, 2000 employment injury,
assigned file number 010375500 and accepted for right foot hallux rigidus. Prior to stopping
work on September 14, 2004, he worked four hours per day limited duty. Appellant asserted that
he sustained an emotional reaction to the pain and discomfort in his right foot.

In a report dated October 13, 2004, Dr. Madan L. Zutshi, a Board-certified internist,
opined that appellant was disabled from work beginning September 20, 2004 due to job stress.
On October 19, 2004 Dr. Brian A. Yeaman, Board-certified in family practice, diagnosed
“anxiety and depression that unfortunately are job related.” He referred appellant to a
psychiatrist.
In an October 21, 2004 work restriction evaluation, Dr. Thomas C. Bond, a Boardcertified psychiatrist, related that appellant was unable to work full time because of severe
anxiety, poor concentration and physical discomfort. He stated, “[Appellant] feels unduly
criticized and forced to perform duties he feels unable to fulfill.” On October 29, 2004
Dr. Zutshi opined that appellant should remain off work another three weeks due to job stress.
On October 27, 2004 Dr. Joel A. Saperstein, a Board-certified orthopedic surgeon,
diagnosed double joint osteoarthritis, multiple workers’ compensation injuries and chronic
discomforts. He found that due to appellant’s work injuries he could perform only sedentary
employment.
On November 19, 2004 Dr. Bond discussed appellant’s history of work injuries and
surgeries beginning in 1984. He stated, “These later two surgeries have resulted in [appellant]
being placed on limited duty which [he] feels have led to frequent comments about his being a
malingerer and causing him increasing stress.” Dr. Bond described appellant’s symptoms and
noted that they “appear to be related to what he regards as an intolerable work situation.” He
related:
“The question you raise as to whether his foot injury is causally related to his
current symptoms is best addressed by Dr. Saperstein, his orthopedic surgeon, in
his letter of October 27, 2004. In his opinion, the injuries are causally related to
his work situation, and I have no reason to disagree. What can be said is that his
orthopedic injuries clearly have limited his ability to perform his job as before,
and thus are causally related to the extreme stress he experiences at work and his
current symptoms.”
Dr. Bond diagnosed panic disorder with agoraphobia and adjustment disorder with
anxiety and depression. He concluded, “As his condition appears related to perceived job stress,
the prognosis is dependent upon whether he returns to work.”
After reviewing appellant’s notice of recurrence of disability and the medical evidence
submitted, the Office determined on December 16, 2004 that appellant’s claim was for a new
occupational disease. The Office assigned the case file number 012027596. It requested that he
submit additional factual and medical evidence in support of his claim, including a rationalized
medical report from his attending physician addressing the causal relationship between his
diagnosed condition and employment factors.
On December 20, 2004 and March 7, 2005 appellant’s attorney argued that the Office
should adjudicate appellant’s notice of recurrence of disability and maintained that he claimed a
consequential injury rather than a new occupational disease.

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On March 29, 2005 the employing establishment related that appellant’s job was not
stressful and that he could perform the duties of his position. The employing establishment
disputed that he was called a malingerer or subject to a hostile work environment. Appellant was
not assigned work outside his abilities.
By decision dated May 12, 2005, the Office denied appellant’s claim on the grounds that
he did not establish an injury in the performance of duty. It noted that he had not provided a
statement identifying the employment factors to which he attributed his condition.
On May 18, 2005 appellant, through his attorney, requested an oral hearing in file
numbers 010375500 and 012027596. On November 17, 2005 the hearing representative
informed him that there was no final decision issued in file number 010375500. He noted that
the case files for 010375500 and 012027596 had been combined. By letter dated November 18,
2005, appellant’s attorney protested the Office adjudicating file number 012027596 instead of
issuing a decision on the notice of recurrence of disability under file number 010375500. He
requested a review of the written record in lieu of an oral hearing.1
On January 6, 2006 counsel contended that the case should be remanded for the Office to
adjudicate appellant’s claim for a consequential emotional condition under file number
01375500. In a decision dated February 22, 2006, an Office hearing representative affirmed the
May 12, 2005 decision. He found that the medical evidence was insufficient to show that
appellant sustained an emotional condition due to his accepted foot injury.
On March 1, 2006 Dr. Saperstein diagnosed osteoarthtritis, multiple employment injuries
and chronic discomfort. He noted that appellant “is also suffering an emotional component to his
problem with chronic pain which has made him quite anxious.” Dr. Saperstein found that he was
disabled due to his physical and emotional conditions.
In a report dated July 20, 2006, Dr. Bond related that he began treating appellant on
October 15, 2004 at the request of his attending physician. He stated:
“[Appellant] related a history of a series of orthopedic injuries, dating back to
1984, [which] impacted his ability to perform his duties at the [employing
establishment]. He felt that he had been increasingly criticized by his supervisors
and singled out by them. He then began to have anxiety attacks surrounding the
work site and developed the symptoms as mentioned previously. Even any
mention of possible return to work results in an exacerbation of his anxiety and
somatic symptoms.”
Dr. Bond related that he could “find no alternative explanation for his condition other
than a[n] emotional response to a hostile work environment.” He opined that appellant was
disabled from employment.

1

The employing establishment submitted an October 11, 2005 investigative memorandum obtained in file
number 010375500.

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The record contains evidence regarding disciplinary actions taken by the employing
establishment against appellant.
Appellant appealed to the Board. On February 23, 2007 the Board remanded the case for
reconstruction of the case record. The Board noted that the record did not contain the May 12,
2005 decision.
By decision dated June 7, 2007, the Office denied appellant’s claim on the grounds that
he did not establish an emotional condition due to his accepted work injury. It noted that it
considered all evidence relating to a psychiatric condition in file numbers 010375500 and
01207596.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit
the following: (1) medical evidence establishing that he has an emotional or stress-related
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to his condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to his stress-related
condition.2 If a claimant does implicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor.3 When the matter asserted is
a compensable factor of employment and the evidence of record establishes the truth of the
matter asserted, the Office must base its decision on an analysis of the medical evidence.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6 The medical evidence must be based on a complete factual
and medical background of the claimant and must be one of reasonable medical certainty

2

Leslie C. Moore, 52 ECAB 132 (2000).

3

Dennis J. Balough, 52 ECAB 232 (2001).

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Id.

5

David Apgar, 57 ECAB 137 (2005).

6

Doretha M. Belnavis, 57 ECAB 311 (2006).

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explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7
ANALYSIS
Appellant attributed his emotional condition to pain and limitations from his prior
employment injury of right foot hallux rigidus. He filed a notice of recurrence of disability on
November 22, 2004 and claimed that he sustained an emotional condition due to his accepted
employment injury. Appellant submitted medical evidence attributing his condition to his prior
employment injury, job stress and criticism by his supervisors. The Office adjudicated his notice
of recurrence of disability as an occupational disease claim. It found that he had not established
that he sustained an emotional condition due to his accepted work injury.
The record contains copies of disciplinary actions taken by the employing establishment
toward appellant. Appellant did not, however, attribute his emotional condition to any action
taken by the employing establishment. Instead, he alleged that he sustained a psychotic reaction
due to pain and discomfort in his right foot from his accepted employment injury. An emotional
condition due to chronic pain and limitations resulting from an employment injury may be
compensable under the Act.8 Appellant, consequently, has established a compensable
employment factor. His burden of proof, however, is not discharged by establishing a
compensable factor of employment. Appellant must also submit rationalized medical opinion
evidence establishing that his emotional condition is causally related to the accepted employment
injury.9
On October 13, 2004 Dr. Zutshi found that appellant was disabled from work beginning
September 20, 2004 due to job stress. On October 19, 2004 Dr. Yeaman diagnosed “anxiety and
depression that unfortunately are job related.” He referred appellant to a psychiatrist. On
March 1, 2006 Dr. Saperstein diagnosed osteoarthtritis, multiple employment injuries and
chronic discomfort. He opined that appellant was “also suffering an emotional component to his
problem with chronic pain which has made him quite anxious.” The opinions of Dr. Zutshi,
Dr. Yeaman and Dr. Saperstein, however, are of reduced probative value as they are not
specialists in the appropriate field.10
On November 19, 2004 Dr. Bond noted that appellant worked limited duty because of his
employment injuries and that he sustained stress due to “frequent comments about his being a
malingerer….” He found that appellant’s symptoms “appear to be related to what he regards as
an intolerable work situation.” Dr. Bond opined that appellant’s orthopedic injuries “clearly
have limited his ability to perform his job as before, and thus are causally related to the extreme
7

Judy C. Rogers, 54 ECAB 693 (2003).

8

Clara T. Norga, 46 ECAB 473 (1995); Arnold A. Alley, 44 ECAB 912 (1993).

9

Charles D. Gregory, 57 ECAB 322 (2006).

10

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the opinion of a physician having training and
knowledge in a specialized field of medicine has greater probative value concerning questions peculiar to that field
than other physicians).

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stress he experiences at work and his current symptoms.” He diagnosed panic disorder with
agoraphobia and adjustment disorder with anxiety and depression. Dr. Bond concluded, “As his
condition appears related to perceived job stress, the prognosis is dependent upon whether he
returns to work.” He found that appellant’s work limitations caused him to experience stress but
did not provide any rationale in support of his opinion.11 Dr. Bond further determined that the
diagnosed conditions of panic disorder with agoraphobia and adjustment disorder with anxiety
and depression “appear related to perceived job stress.” His conclusion that appellant’s
condition appeared to be due to perceived stress at work is couched in speculative terms and thus
is of diminished probative value.12
In a report dated July 20, 2006, Dr. Bond found that appellant’s history of employment
injuries beginning in 1984 adversely affected his ability to work. He experienced anxiety attacks
because he believed that his supervisors criticized and singled him out. Dr. Bond found “no
alternative explanation for [appellant’s] condition other than a[n] emotional response to a hostile
work environment.” Appellant, however, did not submit a factual statement attributing his
condition to a hostile work environment or provide any evidence corroborating that he was
unfairly criticized or harassed.13 As Dr. Bond did not attribute a condition directly to the
accepted employment factor of pain and limitations from his right foot hallux rigidus, his report
is insufficient to meet appellant’s burden of proof. The Board, therefore, finds that appellant has
not established that he sustained an emotional condition causally related to his accepted
employment injury.
On appeal, appellant’s attorney contends that the Office should have adjudicated the
claim as a consequential injury. The Office, however, properly found in its June 7, 2007
decision that the issue was whether the medical evidence established that he sustained an
emotional condition due to his accepted work injury.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition causally related to his accepted condition or right foot hallux rigidus.

11

A medical report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale. Roma A. Mortenson-Kindschi, 57 ECAB
418 (2006).
12

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
13

A claimant must specifically identify the employment factors or incidents alleged to have caused her condition
and establish a factual basis for her allegations with probative and reliable evidence. See David Apgar, supra note 5;
Pamela D. Casey, 57 ECAB 260 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2007 is affirmed.
Issued: September 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Middleton, WI, Employer
__________________________________________

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

Docket No. 12-1609
Issued: August 16, 2013

Case Submitted on the Record

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

JURISDICTION
On July 23, 2012 appellant filed a timely appeal from a May 22, 2012 merit decision and
a July 12, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty on December 30, 2011; and
(2) whether OWCP properly denied his request for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that as he was the employee dealing with the veteran who
made threats, his claim should be accepted because of all the stress that this has caused him
mentally and physically.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 30, 2012 appellant, a 43-year-old facility revenue technician, completed a
traumatic injury claim (Form CA-1) alleging that on December 30, 2011 an “[a]ngry veteran
came into our work area and was threatening to shoot us if we did not return his money. A
coworker heard veteran state that he had a gun.” Appellant alleged that he suffered from stress
due to this employment incident.2
OWCP requested further information regarding the incident from appellant and the
employing establishment. Appellant forwarded a statement dated January 10, 2012 wherein he
stated that on December 30, 2011 he was in his office when a veteran came to the office and he
assisted him. Appellant noted that the veteran was loud and was upset and had red eyes. He
indicated that the veteran walked away for a moment so he could calm down and came back and
told him that his money was taken from him by the employing establishment. Appellant
indicated that he looked in the system and noticed nothing had been taken from his account, so
he made a call, and told the veteran he was waiting for a return call. He noted that at that time a
couple of other employees tried to get his attention, and that he then left his cubicle and went to
them. They told him that the veteran he was assisting had a gun and that they heard him talking
in the bathroom saying that if he did not get his money back that very day he was going to kill
someone and that the police had been called. Appellant noted that when he turned around he saw
many police in the hallway with their guns drawn making signs to each other, and that all of a
sudden they went into his cubicle and tackled and handcuffed the veteran. He indicated that after
the incident he could not stop shaking.
Official reports by the employing establishment and the police were received by OWCP.
A December 30, 2011 document entitled “VHA Issue Brief,” authored by the Acting Assistant
Medical Center Director, noted that on that date a veteran who was meeting with a patient billing
representative, was arrested by the police for the employing establishment for making a verbal
threat to do bodily harm with an alleged concealed handgun. The report noted that the veteran
was previously in the men’s restroom and remarked to an employee that he had a gun and had
better get the money he was owed and that the employee alerted the employing establishment’s
police. The police responded with multiple officers securing the area and entering the restroom,
but the veteran was found in the patient billing office and was clearly aggressive and making
verbal threats to the employee. The report indicated that the veteran was physically restrained
and arrested. The report noted that after a thorough search, no weapon was found. The veteran
was charged with threat to do bodily injury. The report indicated that a routine health
examination would be conducted prior to releasing the veteran, and that the employees involved
were seen in employee health and were subsequently excused from duty for the remainder of the
day.
The employing establishment responded to OWCP’s request for further information with
a letter dated February 27, 2012 from Carol A. Hitz, Acting Facility Revenue Manager. She
agreed that the incident of December 30, 2011 took place and that appellant had been conducting
his normal workday requirements in the revenue office, by providing face-to-face and telephonic
customer service care with a particular focus on issues related to billing and payments. She
2

An occupational disease claim had been filed on appellant’s behalf on January 13, 2012. This claim was not
signed by appellant, a witness, a supervisor or any other party.

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further agreed that the incident involved a veteran patient who was upset about having his
disability checks garnished for nonpayment of bills. Ms. Hitz agreed that appellant was the
individual who was assisting the upset veteran but in light of the fact that appellant was never
directly threatened or overheard the veteran state he had a weapon and was planning on harming
anyone, and that appellant had no knowledge of the veteran’s alleged intentions until after he
excused himself from the office at the request of other employees, it did not believe the incident
warranted a permanent disability. She further described the position in which appellant had been
assigned and noted that appellant had completed training on December 10, 2010 on handling
conflict in the workplace.
In a Uniform Offense Report by the police for the employing establishment, Officer
Ricks indicated that Henry Williams was charged with disorderly conduct for the incident that
occurred on December 30, 2011. The police narrative also indicated that on December 30, 2011
at 10:34 a.m., the dispatcher received numerous Lynx panic alarm notifications and several
telephone calls from employees on the 5th floor of the Taylor Pavilion stating that there was a
man with a gun in the men’s room stating that he was going to shoot someone if he did not get
his money. Officer Ricks also noted that there were calls placed to the police stating that there
was a man near room 5222 of the 5th floor of the Taylor Pavilion with a gun in his hand. All
available police personnel were dispatched. Officer Ricks indicated that the police approached
the cubicle and noted they “observed the veteran calmly sitting in a chair looking down at his
cell phone, as he held it in both hands, with his back positioned to us unaware of our presence.”
The report continued that the police then entered the cubicle quietly, applied a wrist grab to take
down the suspect, and Mr. Williams was subdued and placed in hand cuffs. The police
canvassed the area for a weapon or other evidence but this met with negative findings. The
report detailed the witness statements of Leslie Barnett, Aaron Sims and Robert Hayes, all of
whom had notified the police of the situation. The statements indicated that Mr. Sims and
Mr. Hayes encountered the veteran in the men’s room and that he had made threats about getting
his money. Mr. Hayes indicated that the veteran stated that he was going to hurt someone with
his “Gat.” Ms. Barnett indicated that she heard from another employee that the veteran had a
gun and she called 911. She noted that, when she talked to the dispatcher, she was informed that
the police had been dispatched to the area.
By letter dated April 16, 2012, OWCP asked appellant and the employing establishment
for further clarification on the incident, particularly whether the veteran had been directly
threatened by the veteran.
In response, appellant submitted two statements from colleagues that were in his area
when the incident occurred. In a January 3, 2012 statement, Marilyn Eldridge stated that, on
December 30, 2011, she heard a veteran loudly inquire if this was the MICCP department. She
stated that appellant assisted the veteran. Ms. Eldridge indicated that she overheard the veteran
state that the agency took money from him and that appellant told him he needed to calm down.
She then noted that she went out of her cubical to talk to “Evelyn [a colleague]” about the
monthly report when she noticed two employees walking back and forth looking into cubicles.
When Ms. Eldridge inquired as to what was wrong, one of them told her that the guy with
appellant had a gun and that the veteran had stated that the employing establishment took out all
his money from a check and left him with only $40.00. If he did not get the money back the
veteran said he was going to kill someone. She noted that she began to think of the safety of her
coworker, appellant, because there was only one way out and that he would have to get pass the
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veteran to get to safety. Ms. Eldridge called appellant over and informed him of the situation.
She noted that she then saw the police in the hallway with their guns drawn, speaking to each
other with hand gestures. Ms. Eldridge then heard the veteran scream and tell the police that he
did not have a gun. When she got back to her seat, she was shaking and began to cry.
Ms. Eldridge noted that the employing establishment closed the office for the remainder of the
day.
In a January 4, 2012 statement, Evelyn Wilborn stated that on December 30, 2011 at
about 10:00 a.m., she saw the veteran speaking with appellant. At one point appellant had come
to her cubicle to get a telephone number but then returned to his cubicle. Ms. Eldridge came
over to see Evelyn and they started to talk about reports when the Secretary for the Chief
informed her that the veteran that appellant had in his cubicle had a weapon and that security had
been called. Ms. Wilborn noted that Ms. Eldridge called appellant back to the cubicle to inform
him of what was happening and that they could see security approaching. They were later
informed to leave. She noted that she turned and saw security taking the veteran to the floor.
Ms. Wilborn noted that Ms. Eldridge was shaking and was terrified.
The employing establishment submitted a May 9, 2012 letter from Loretta M. Gulley,
Director, who noted having reviewed appellant’s statements and the police reports of the
incident. Ms. Gulley noted that, “According to [appellant’s] statement, he was not threatened by
the veteran. He was not aware of the veteran’s alleged statement that he had a gun. [Appellant]
only became aware of the alleged statement after he was called into the hallway and informed by
[other] employees. According to [his] statement, when he turned back to his office, [employing
establishment] police officers were on the scene.” She agreed that the incident occurred but
again argued that the incident did not warrant a disability because appellant was never directly
threatened, the interactions took place in a well-lit, open area with easy egress, and that there
were supervisors as well as other staff available nearby to assist, if necessary. In light of that, the
employing establishment did not concur that the incident warranted a permanent disability.
By decision dated May 22, 2012, OWCP denied appellant’s claim. It determined that as
appellant failed to establish that he was directly threatened by the veteran during his work
activities, any emotional response would be considered self-generated and that therefore
appellant did not establish an employment factor.
On June 1, 2012 appellant requested reconsideration.
By decision dated July 12, 2012, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.3
3

See Debbie J. Hobbs, 43 ECAB 135, 144 (1991).

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To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in his or her master’s business; (2) at a
place where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.4
Workers compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers compensation. Where the disability results from an employee’s emotional reaction to
his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of FECA.5 On the other hand the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or his frustration
from not being permitted to work in a particular environment or to hold a particular position.6
Appellant has the burden of proof to establish by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation, was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.8
ANALYSIS -- ISSUE 1
In his claim, appellant stated that an “[a]ngry veteran came into our work area and was
threatening to shoot us if we did not return his money to him. A coworker heard the veteran state
that he had a gun.” Appellant claimed stress “from threats from angry veteran.” Although
appellant claimed he had been threatened by the veteran, the facts reflect that appellant only
learned of the threats the veteran had made after the fact. It was not until after the police had
handcuffed the veteran that appellant learned of any danger from the coworker.
There are many witness statements with regard to this incident, a police report and a
report by the employing establishment. These statements and reports confirm that appellant was
unaware of the situation until the threat had been removed, i.e., the police had removed the
veteran from the office. Officer Ricks indicated that the veteran was later charged with
disorderly conduct. There was no weapon found on the veteran or in his vehicle.
The Board finds that appellant’s reaction to the situation after the threat had already been
removed by the police was self-generated and did not arise out of or in the course of employment

4

L.G., Docket No. 09-276 (issued August 11, 2009); Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

5

Lillian Cutler, 28 ECAB 125, 129 (1976).

6

See Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 566 (1991); id. at 131.

7

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

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and thus is not a compensable employment factor.9 The fact that an employee learns of a
situation after the fact and sustains an emotional condition, does not, in and of itself, provide the
necessary nexus to establish that the emotional condition occurred while in the performance of
duty, as required by FECA.10
The Board finds that appellant’s emotional condition is not compensable as it resulted
from his reaction to the subsequent revelation that there might have been a threat, rather than
from his day-to-day duties, specially assigned duties, or any other requirement imposed by his
federal employment.
For the foregoing reasons, the Board finds that appellant has not established any
compensable employment factors under FECA and has not met his burden of proof to establish
an emotional condition in the performance of duty.11
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered; or by constituting relevant and
pertinent evidence not previously considered.12 Evidence that repeats or duplicates evidence
already of record has no evidentiary value and does not constitute a basis for reopening a case for
merit review.13
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, appellant submitted pages from a statement
which restated the facts and expressed his feelings surrounding the event.

9

See, e.g., Kathryn S. Graham Wilburn, 49 ECAB 458 (1998). In that case, the Board found that appellant’s
condition arose from the knowledge that her grandson, coworkers and acquaintances had died in the Oklahoma
bombing, rather than from the performance of her day-to-day duties, specially assigned duties or any other
requirement imposed by her employment. See also Donna C. Lewis, Docket No. 04-2051 (issued April 25, 2005).
Appellant learned later that students she had earlier approached in the school gymnasium had a loaded gun. As
appellant’s reaction was to the subsequent revelation about the gun, rather than from her day-to-day duties, the
Board found appellant’s reaction to be self-generated and not compensable; L.G., supra note 4, where the Board
found, inter alia, that an air traffic controller’s emotional reaction to a proximity event and an operational error
involving aircraft was not compensable where he was present in the room but did not have operational responsibility
for the aircraft involved. Cf. A.C., Docket No. 12-1050 (issued December 28, 2012) where the Board found a
compensable factor a controller’s emotional reaction to a possible conflict of separation guidelines where he was
responsible for the aircraft involved and attempted to resolve the conflict. He was later disciplined for his role in the
incident.
10

See id.

11

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
12

20 C.F.R. § 10.606(b). See Charles A. Jackson, 53 ECAB 671 (2002).

13

Id.

6

The Board finds that the statement is essentially duplicative of his prior statements
already of record. Appellant has not shown that OWCP erroneously applied or misinterpreted a
point of law, has not advanced a relevant legal argument not previously considered, or submitted
relevant, new evidence in support of his request for reconsideration. The Board finds that
OWCP did not abuse its discretion by denying further merit review of his claim.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a
compensable factor of employment and the Board finds that OWCP properly denied a merit
review of appellant’s claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 12 and May 22, 2012 are affirmed.
Issued: August 16, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

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Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

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

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wood River, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1279
Issued: November 26, 2012

Case Submitted on the Record

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

On May 24, 2012 appellant timely appealed the May 3, 2012 merit decision of the Office
of Workers’ Compensation Programs which granted a schedule award.1 The Board docketed the
appeal as No. 12-1279.
This case was previously before the Board.2 Appellant has an accepted claim for lumbar
sprain which arose on or about January 29, 2009. In an April 20, 2010 decision, OWCP granted
a schedule award for four percent impairment of the left lower extremity.3 Additionally, it found
zero impairment of the right lower extremity. The schedule award was based on the district
medical adviser’s (DMA) January 20, 2010 impairment rating. He applied Table 16-12,
“Peripheral Nerve Impairment -- Lower Extremity Impairments,” A.M.A., Guides 534-36
(6th ed. 2008). The April 20, 2010 schedule award was subsequently affirmed by the Branch of
Hearings & Review.
1

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193, and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
2
3

Docket No. 11-198 (issued August 3, 2011).

The award was calculated pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2008).

By decision dated August 3, 2011, the Board set aside the hearing representative’s
October 20, 2010 decision. The Board noted, inter alia, that Table 16-12, A.M.A., Guides 53436 (6th ed. 2008) was not the preferred method adopted by OWCP for rating spinal nerve
extremity impairment.4 Accordingly, the case was remanded for further development.5
OWCP issued another schedule award decision on May 3, 2012. The latest decision also
found four percent impairment of the left lower extremity and zero percent impairment of the
right lower extremity. Once again, the DMA incorrectly relied on Table 16-12, A.M.A., Guides
534-36 (6th ed. 2008) as a basis for determining appellant’s lower extremity impairment. As
noted in our prior decision, the sixth edition of the A.M.A., Guides (2008) provides a specific
methodology for rating spinal nerve extremity impairment. It was designed for situations where
a particular jurisdiction mandated ratings for extremities and precluded ratings for the spine. The
appropriate tables for rating spinal nerve extremity impairment can be found in the FECA
Procedure Manual, which follows the guidelines set forth in the July/August 2009 edition of the
The Guides Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition.”6
Because the DMA did not apply the appropriate rating method, the case will be remanded for
further development.7 After OWCP has developed the case record to the extent it deems
necessary, a de novo decision shall be issued regarding entitlement to a schedule award.

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
5

The Board’s August 3, 2011 decision is incorporated herein by reference.

6

See supra note 4.

7

Once OWCP undertakes development of the record it must do a complete job in procuring medical evidence that
will resolve the relevant issues in the case. Richard F. Williams, 55 ECAB 343, 346 (2004).

2

IT IS HEREBY ORDERED THAT May 3, 2012 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further action consistent with this
order of the Board.
Issued: November 26, 2012
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
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, Fort Bragg, NC,
Employer
__________________________________________

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

Docket No. 19-1786
Issued: July 6, 2020

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 August 21, 2019 appellant filed a timely appeal from February 22 and May 21, 2019
merit decisions 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.3
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred eighty days from February 22, 2019, the date of OWCP’s last decision, was
August 21, 2019. Because using August 27, 2019, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is August 21, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 21, 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.

ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s wage-loss compensation
benefits, effective May 29, 2016, based on his actual earnings as a nurse consultant; (2) whether
appellant received an overpayment of compensation in the amount of $12,401.44, for which he
was not at fault, as he concurrently received Social Security Administration (SSA) age-related
retirement benefits and FECA wage-loss compensation for the period July 1, 2018 through
March 30, 2019; and (3) whether OWCP properly denied waiver of recovery of the $12,401.44
overpayment of compensation.
FACTUAL HISTORY
On October 4, 2011 appellant, then a 59-year-old clinical/medical-surgical nurse, filed a
traumatic injury claim (Form CA-1) alleging that, on October 3, 2011, he injured his left wrist and
right thigh when he slipped and fell on a wet floor while in the performance of duty. OWCP
accepted the claim for sprains of the right hip, thigh, knee, and leg. Appellant worked
intermittently and stopped work on October 24, 2011. He underwent an OWCP-approved surgical
repair of the right knee quadriceps tendon rupture on October 26, 2011. OWCP paid appellant
wage-loss compensation on the supplemental rolls commencing November 20, 2011. Appellant
returned to work in September 2012.4
On May 19, 2016 appellant accepted a permanent job offer as a GS-6 step 10 nurse
consultant. The salary was listed as $97,069.00 which included night differential, and Saturday
and Sunday premium pay. The position was defined as sedentary, with lifting and carrying limited
to less than 10 pounds. Frequent use of a keyboard and telephone was required.
By decision dated January 20, 2017, OWCP finalized a loss of wage-earning capacity
(LWEC) determination finding that appellant had the capacity to earn wages as a nurse consultant
with wages of $1,866.71 per week effective May 29, 2016. It found that the position fairly and
reasonably represented appellant’s wage-earning capacity and the position was suitable for
appellant’s partially disabling condition. A computation of compensation worksheet was included
which documented the required application of the Shadrick5 formula used to determine appellant’s
wage-earning capacity. OWCP noted that, as of May 29, 2016, appellant’s current pay rate as
nurse (clinical/medical-surgical) was $1,904.38. It determined that he had a wage-earning capacity
of 98 percent and that his net compensation rate was $117.00 every four weeks.
In a November 14, 2018 letter, the employing establishment indicated that there was an
error in the May 13, 2016 permanent job offer. It noted that the salary on the job offer should have
been $84,171.00 annually and should not have included premium pay. However, the employing
establishment also noted that appellant’s loss of premium pay should have been included as part
of the LWEC determination. It requested that the LWEC decision be modified based on the correct
salary and adjusted effective September 2, 2018. An attached September 2, 2018 Notification of
Personnel Action (Standard Form 50-B), noted appellant’s annual salary as $86,203.00.

4

By decision dated December 17, 2012, OWCP granted appellant a schedule award for 13 percent permanent
impairment of the right lower extremity. The award ran 37.44 weeks for the period October 16 through July 5, 2013.
5

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

2

Due to the discrepancies in appellant’s salary, OWCP, in a December 12, 2018 letter,
sought clarification of appellant’s salary commencing May 19, 2016. On January 18, 2019 the
employing establishment advised that, effective May 29, 2016, appellant’s actual earnings should
have been $84,171.00.6 It also noted the amounts of Saturday, Sunday, and Holiday premium pay,
and night differential pay that appellant earned one year prior to the date of injury as: $5,852.72,
$2,278.24, $3,770.88, and $7,543.64, respectively.
By decision dated February 13, 2019, OWCP modified the January 20, 2017 LWEC
determination. It found that the LWEC determination was issued in error as the May 13, 2016
permanent job offer was based on incorrect salary information.
By decision dated February 22, 2019, OWCP issued an LWEC determination finding that
appellant had the capacity to earn wages as a nurse consultant with wages of $1,618.67 per week,
effective May 29, 2016.7 It found that the position fairly and reasonably represented his wageearning capacity and the May 13, 2016 permanent light-duty position was suitable for his partially
disabling condition. A computation of compensation worksheet was included which documented
the required application of the Shadrick8 formula used to determine appellant’s wage-earning
capacity.9 Based on the LWEC, appellant received net compensation of $1,202.00 every four
weeks.
On EN1032 form dated March 8, 2019, appellant reported that he was in receipt of benefits
from SSA as part of an annuity for federal service, which he had received since August 2018.
On March 21, 2019 SSA forwarded a Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to OWCP. The form set forth the SSA compensation based upon
his rate without FERS and with FERS from July 2018 through January 2019. The form indicated
that beginning July 1, 2018, appellant’s SSA rate with FERS was $2,551.90 and without FERS
$1,215.70; beginning December 1, 2018, his SSA rate with FERS was $2,623.30 and without
FERS was $1,249.70; and beginning January 1, 2019, his SSA rate with FERS was $2,750.80 and
without FERS was $1,299.60. An accompanying FERS Offset Calculation Worksheet calculated
the overpayment for the period July 1 to November 30, 2018 as $6,739.73; for the period
December 1 to 31, 2018 as $1,403.79; and for the period January 1 to March 30, 2019 as $4,257.92;
for a total overpayment of $12,401.44.
In an April 10, 2019 letter, OWCP advised appellant 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, which required an offset of his FECA compensation benefits. It
advised that $1,451.20 was calculated as the amount which must be offset against his
compensation benefits. OWCP indicated that since Social Security benefits were paid monthly,
6

The employing establishment advised, in a February 11, 2019 letter, that appellant was not required to pay any of
the overpayment back to the employing establishment from May 29, 2016 through August 31, 2018 caused by the
salary error.
7

This was based on a base pay of $84,171.00 annually, effective May 29, 2016.

8

See supra note 5.

OWCP noted that, as of May 29, 2016, appellant’s current pay rate as nurse (clinical/medical-surgical) was
$2,003.95 and that he was capable of earning $1,618.67.
9

3

and compensation benefits were paid every 28 days, the monthly offset amount of $1,451.20
adjusted to a 28-day payment cycle amounted to $1,339.57. It noted that the offset amount of
$1,339.57 would begin on March 31, 2019. OWCP also advised that since the FERS offset was
$1,339.57, which was more than the wage-earning capacity entitlement of $1,224.00, the gross
amount of compensation had been deducted and applied to the FERS offset, which resulted in a
new net compensation payment of zero.
In a preliminary determination dated April 10, 2019, OWCP informed appellant that he
received an overpayment of compensation in the amount of $12,401.44 because the SSA/FERS
offset was not applied to payments for the period July 1, 2018 through March 30, 2019. It
determined that he was without fault in the creation of the overpayment, because he was not aware,
nor could he reasonably been expected to know, that it had paid him compensation incorrectly.
OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form
OWCP-20) to determine a fair repayment method, and advised him that he could request a waiver
of recovery of the overpayment. It also requested that he provide supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support reported income and expenses. OWCP advised appellant that it
would deny waiver of recovery of the overpayment if he failed to furnish the requested financial
information within 30 days. It further notified him that, within 30 days of the date of the letter, he
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
Appellant responded to the preliminary overpayment determination by submitting the
following evidence: a May 7, 2019 letter from American Federation Government Employees
(AFGE) advising of appellant’s appointment with SSA; a May 8, 2019 letter from the SSA noting
that appellant was not receiving a Social Security disability benefit and that he began receipt of his
retirement benefit after his full retirement age; and a May 14, 2019 letter from AFGE which
attached the policy from SSA regarding Social Security benefits and OWCP benefits offset.
By decision dated May 21, 2019, OWCP finalized the preliminary determination that
appellant received an overpayment of compensation in the amount of $12,401.44, for which he
was not at fault, as he concurrently received SSA age-related retirement benefits while receiving
FECA wage-loss compensation benefits for the period July 1, 2018 through March 30, 2019. It
denied waiver of recovery of the overpayment as he had not provided any financial information
regarding his income and expenses. OWCP requested that the overpayment be recovered in full
within 30 days.10

OWCP further noted that since appellant’s FERS offset amount of $1,339.57 is more than his wage-earning
capacity entitlement of $1,224.00, the gross amount of compensation has been deducted and applied to the FERS
offset.
10

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to establish that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.11
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.12 Compensation payments are based on the wage-earning capacity determination, and it
remains undisturbed until properly modified.13
Under section 8115(a) of FECA wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity.14 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.15
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions. OWCP applies the principles set forth in Albert C.
Shadrick16 as codified in section 10.403 of its implementing regulations,17 to determine the
percentage of the employee’s LWEC.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

11

See C.H., Docket No. 19-0136 (issued May 23, 2019).

12

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13

See M.F., Docket No. 18-0323 (issued June 25, 2019).

14

5 U.S.C. § 8115(a).

15

Id.; see also Z.W., Docket No. 18-1000 (issued June 24, 2019).

16

5 ECAB 376 (1953).

17

20 C.F.R. § 10.403.

18

See J.H., Docket No. 18-1319 (issued June 26, 2019).

5

rehabilitated, or the original determination was, in fact, erroneous.19 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.20
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined appellant’s LWEC, effective May 29,
2016, based on his actual earnings as a nurse consultant.
By decision dated February 22, 2019, OWCP finalized a modified LWEC determination
finding that appellant had the capacity to earn wages as nurse consultant with wages of $1,618.67
per week effective May 29, 2016.21 The Board finds that appellant successfully performed the
duties as a nurse consultant for over two years (May 29, 2016 to February 22, 2019), which
supports that the position fairly and reasonably represented his wage-earning capacity.22 The
Board further notes that the record does not establish that the nurse consultant position constituted
part-time, sporadic, seasonal, or temporary work.23 Moreover, the record indicates that the
position was not a make-shift position designed for appellant’s particular needs.24 Appellant
successfully performed the nurse consultant position for at least 60 days and the wages appellant
earned beginning May 29, 2016 were less than the current wages of his date-of-injury job. Based
upon the information provided by the employing establishment regarding an incorrect pay rate,
OWCP modified the January 20, 2017 LWEC determination as the May 13, 2016 permanent job
offer was based on incorrect salary information. It properly determined that appellant did not
receive pay for night differential or premium pay as a nurse consultant, therefore, appellant had a
greater loss of earnings. In a revised computation of compensation worksheet, OWCP properly
applied the Shadrick25 formula and found that appellant was entitled to a net compensation of
$1,202.00 every four weeks. The Board thus finds that the February 22, 2019 LWEC
determination was properly issued based upon its calculations.26
Accordingly, the Board finds that OWCP properly determined that appellant’s earnings as
a nurse consultant fairly and reasonably represented his wage-earning capacity and he was entitled
to a net compensation of $1,202.00 every four weeks.

19

See S.C., Docket No. 18-0517 (issued February 25, 2020); J.A., Docket No. 17-0236 (issued July 17, 2018);
Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).
20

See S.C., id; O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

21

The position had an annual salary of $84.171.00 annually effective May 29, 2016.

22

See S.C., supra note 20; J.A., Docket No. 17-0236 (issued July 17, 2018).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
24

Id.

25

Supra note 5; 20 C.F.R. § 10.403(d).

OWCP noted that, as of May 29, 2016, appellant’s current pay rate as nurse (clinical/medical-surgical) was
$2,003.95. It determined that appellant had an LWEC of $369.56 every four weeks.
26

6

Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
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.27 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.28
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 benefits that are attributable to the
employee’s federal service.29 FECA Bulletin No. 97-09 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit 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.30
ANALYSIS -- ISSUE 2
The Board finds that appellant had received an overpayment of compensation in the amount
of $12,401.44, for which he was not at fault, as he concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period July 1, 2018 through
March 30, 2019.
As noted, a claimant cannot receive concurrent FECA compensation for wage loss and
SSA age-related retirement benefits attributable to federal service for the same period.31 The
information provided by SSA accurately indicated that appellant had received SSA age-related
retirement benefits that were attributable to his federal service from July 1, 2018. This continued
through March 30, 2019, after which OWCP adjusted his compensation. Thus, the record
establishes that appellant received an overpayment of FECA wage-loss compensation.32
To determine the amount of overpayment, the SSA provided the rate with FERS, and
without FERS, for specific periods in question commencing July 1, 2018 through March 30, 2019.
OWCP provided its calculations for each relevant period based on an SSA Dual Benefit worksheet
and in its April 10, 2019 preliminary overpayment determination. This amount differed for each
period beginning July 1, 2018 through March 30, 2019. OWCP calculated the lack of offset from
27

5 U.S.C. § 8102(a).

28

Id. at § 8116.

29

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
30
FECA Bulletin No. 97-09 (February 3, 1997); see also M.D., Docket No. 19-1500 (issued February 24, 2020);
N.B., Docket No. 18-0795 (issued January 4, 2019).
31

20 C.F.R. § 10.421(d); see also N.B., id.; A.C., Docket No. 18-1550 (issued February 21, 2019).

32

See R.R., Docket No. 19-0104 (issued March 9, 2020).

7

July1, 2018 through March 30, 2019 resulted in an overpayment of compensation in the amount
of $12,401.44. No contrary evidence was provided, and appellant has not contested that an
overpayment occurred.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $12,401.44, thus creating an overpayment of
compensation in that amount, for the period July 1, 2018 through March 30, 2019.
LEGAL PRECEDENT -- ISSUE 3
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.33
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.34
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.35 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.36
OWCP’s 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.37 Failure to submit the requested information
within 30 days of the request will result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.38

33

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued
June 12, 2019).
34

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

35

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).
36

Id. at § 10.437(a)(b).

37

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

38

Id. at § 10.438(b).

8

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the $12,401.44
overpayment of compensation.
OWCP found that appellant was without fault in the creation of the overpayment of
compensation. The fact that a claimant is without fault in creating an overpayment does not
preclude OWCP from recovering the overpayment.39 Waiver is only possible if recovery would
defeat the purpose of FECA or be against equity and good conscience.40 Appellant, however, did
provide the requisite financial documentation to OWCP.41
In its preliminary determination dated April 10, 2019, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire (Form OWCP-20)
and supporting financial documentation. It advised appellant that it would deny waiver of recovery
if he failed to furnish the requested financial information within 30 days. Appellant, however,
failed to provide a completed overpayment recovery questionnaire or any financial documentation
supporting his income and expenses. As a result, OWCP did not have the necessary financial
information to determine whether waiver of recovery of the overpayment would defeat the purpose
of FECA or would be against equity and good conscience.42 It was, therefore, required to deny
waiver of recovery of the overpayment.43
On appeal appellant contends that he is entitled to waiver of recovery as he was without
fault in the creation of the overpayment. However, the fact that he was not at fault does not relieve
him from liability for repayment of the overpayment of compensation.44
CONCLUSION
The Board finds that OWCP properly determined appellant’s LWEC, effective May 29,
2016, based on his actual earnings as a nurse consultant. The Board also finds that appellant
received an overpayment of compensation in the amount of $12,401.44, for which he was not at
fault, as he concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation for the period July 1, 2018 through March 30, 2019. The Board further finds that
OWCP properly denied waiver of recovery of the $12,401.44 overpayment of compensation.

39

See L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808 (issued October 26, 2015).

40

20 C.F.R § 10.436; J.C., Docket No. 19-0122 (issued June 11, 2019).

41

Id. at § 10.438(b); M.D., Docket No. 19-1500 (issued February 24, 2020); T.J., Docket No. 19-1242 (issued
January 13, 2020).
42

See E.M., Docket No. 19-0857 (issued December 31, 2019).

43

Supra note 40.

44

See M.G., Docket No. 19-0424 (issued July 1, 2019).

9

ORDER
IT IS HEREBY ORDERED THAT the May 21 and February 22, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 6, 2020
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Washington, DC, Employer
)
__________________________________________ )
T.S., Appellant

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

Docket No. 17-0291
Issued: January 25, 2017

Case Submitted on the Record

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

JURISDICTION
On November 21, 2016 appellant filed a timely appeal from a September 14, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision dated April 4, 2016 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2
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).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted medical evidence on appeal that was not of record when OWCP issued its September 14,
2016 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of
its final decision. 20 C.F.R. § 501.2(c)(1). Consequently, the Board lacks jurisdiction to review appellant’s newly
submitted medical evidence. Id.

FACTUAL HISTORY
On July 10, 2015 appellant, then a 55-year-old marshal, filed a recurrence claim (Form
CA-2a) for medical treatment only under claim number xxxxxx200. He had previously injured
his neck and left upper extremity on June 6, 1997, which OWCP accepted for neck sprain and
left elbow/forearm contusion. On his Form CA-2a appellant identified July 6, 2015 as the date
of recurrence and explained that the pain in his neck, left arm, and hand “came back a day after
[he] was moving some boxes around at work.”3 Based on appellant’s description of events,
OWCP treated his July 10, 2015 claim as a new traumatic injury.
After further development of the record, OWCP denied appellant’s traumatic injury claim
by decision dated November 9, 2015. It initially denied the claim because the medical evidence
of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted July 6, 2015 employment incident. At the time, the medical
evidence of record included several diagnostic studies, which revealed, inter alia, cervical and
lumbar degenerative disc disease. Appellant’s treating physician, Dr. David C. Waters, a Boardcertified neurosurgeon, diagnosed left C8 radiculopathy and recommended left C8 nerve root
decompression. Dr. Waters noted that appellant had been having intermittent left C8
radiculopathy since 1997 when he was involved in a rear-end collision.
On November 20, 2015 appellant requested a review of the written record by a
representative of the Branch of Hearings and Review. He also submitted a November 17, 2015
report and treatment notes from Dr. Waters, who indicated that on July 6, 2015 appellant had a
work-related injury -- moving boxes at work -- that aggravated an underlying cervical condition,
which produced left arm pain.4 Dr. Waters further noted that appellant’s arm pain emanated
from the C8 nerve root, which required surgical intervention.
By decision dated April 4, 2016, an OWCP hearing representative affirmed the
November 9, 2015 decision. She found that the medical evidence of record, including
Dr. Waters’ November 17, 2015 report, did not contain sufficient medical rationale to support
that the diagnosed conditions were causally related to the July 6, 2015 injury.
Appellant requested reconsideration on August 30, 2016 based on new medical evidence.
He indicated that he attached a May 3, 2016 report from Dr. Waters that more clearly described
how appellant’s work activity aggravated his underlying conditions. However, there is no
indication that OWCP received the referenced May 3, 2016 report from Dr. Waters.
In a September 14, 2016 decision, OWCP denied appellant’s request for reconsideration.
It found that appellant’s request neither raised substantive legal questions nor included new and
relevant evidence. As such, appellant’s request was insufficient to warrant further merit review.

3

Appellant continued to work following the July 6, 2015 employment incident.

4

Dr. Waters reiterated that appellant initially hurt his neck in 1997, which eventually resolved with conservative
therapy. He also mentioned subsequent episodes of neck and/or left arm pain in 2000, 2005, and 2012, which all
reportedly resolved following treatment. Dr. Waters further noted that a 2012 cervical magnetic resonance imaging
scan showed foraminal narrowing at the C7-T1 level on the left side. He indicated that, following the 2012 episode,
appellant remained symptom free until the July 6, 2015 employment incident.

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.7 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, he did not advance a
relevant legal argument not previously considered by OWCP. Consequently, appellant is not
entitled to further review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Along with his reconsideration request, appellant indicated that he was
submitting a new medical report from Dr. Waters dated May 3, 2016. The Board finds that the
record did not contain a May 3, 2016 report from Dr. Waters prior to the issuance of OWCP’s
September 14, 2016 decision. Therefore, OWCP properly found that appellant failed to submit
relevant and pertinent new evidence not previously considered.
The Board finds that OWCP properly denied further review of the merits pursuant to
section 10.606(b)(3).

5

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(a), (b).

3

CONCLUSION
OWCP properly 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 September 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2017
Washington, DC

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

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 15-265
Issued: May 27, 2015

Case Submitted on the Record

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

JURISDICTION
On November 17, 2014 appellant, through counsel, filed a timely appeal of a
September 2, 2014 merit decision and an October 30, 2014 nonmerit decision of the Office of
Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.2
ISSUES
The issues are: (1) whether
prerecoupment hearing; (2) whether it
overpayment of compensation for the
properly determined that appellant was
1
2

OWCP properly denied appellant’s request for a
properly determined that she received a $2,149.14
period April 3 to May 4, 2013; (3) whether OWCP
at fault in creating the overpayment of compensation,

5 U.S.C. §§ 8101-8193.

The record also contains an October 29, 2014 OWCP decision terminating medical benefits and wage-loss
compensation. Appellant has not appealed this decision. The record indicates that appellant’s counsel requested a
hearing before OWCP with respect to this matter.

thereby precluding waiver of recovery of the overpayment; and (4) whether it properly required
repayment of the overpayment by deducting $100.00 every 28 days from her continuing
compensation.
FACTUAL HISTORY
On December 5, 2011 appellant, then a 35-year-old letter carrier, injured her right arm
while delivering a package on her mail route. OWCP accepted her claim for right shoulder and
upper arm sprain. Appellant stopped work on December 5, 2011.
Appellant was placed on the periodic compensation rolls. By letter dated June 19, 2012,
OWCP outlined her entitlement to compensation benefits and her responsibility to return to work
in connection with the injury accepted by OWCP. In an attached EN1049, it provided:
“9. OVERPAYMENTS. To minimize the possibility of an overpayment of
compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. If you receive your compensation payments via paper check,
the payment shows the period for which payment is made. If you have worked
for any portion of this period, return the payment to this office, even if you have
already advised OWCP that you are working. For payments sent by electronic
funds transfer (EFT), a notification of the date and amount of payment appears on
the statement from your financial institution. You are expected to monitor your
EFT deposits carefully, at least every two weeks. If you have worked for any
portion of the period for which a deposit was made, advise OWCP immediately so
that the overpayment can be collected.”
Appellant received compensation via direct deposit payments.
On March 29, 2013 the employing establishment offered appellant a modified rural mail
carrier position effective March 29, 2013. Appellant accepted the position and returned to work
on April 3, 2013.
In a May 16, 2014 letter, OWCP informed appellant that it made a preliminary
determination that she had received a $2,149.14 overpayment of compensation from April 3 to
May 4, 2013 because she received compensation benefits for temporary total disability for that
period after she returned to work full time on April 3, 2013. It found that she was at fault in
creating the overpayment because she knew or should have known that the amount was
incorrect. OWCP explained that appellant was paid $3,761.00 in compensation from March 10
to May 4, 2013; however, she was only entitled to compensation for the period March 10 to
April 2, 2013 in the amount of $1,611.86.3 This created an overpayment of $2,149.14.
Appellant was paid through direct deposit into her bank account. OWCP informed her of her
review rights, including her right to request a prerecoupment hearing within 30 days. It also

3

The integrated Federal Employee Compensation System noted that for the period March 10 to April 6, 2013
appellant received compensation benefits of $1,880.50 and for the period of April 7 to May 4, 2013, appellant
received compensation benefits of $1,880.50.

2

instructed appellant to complete an enclosed overpayment recovery form and submit supporting
documentation within 30 days.
On May 19, 2014 appellant noted that she had signed an agreement to return to work on
March 29, 2013 and was told that she would receive compensation from OWCP for lost hours at
three-quarters of her pay if the post office was not able to provide her with her usual number of
hours of work per week. She indicated that she had no way of knowing that OWCP had not
received the signed agreement in a timely manner to compensate for changes in the amount she
would receive. Appellant noted providing the injury compensation department copies of the CA7 forms in June 2013 to cover pay from March 30 to April 26, 2013. She did not agree she was
paid $2,149.14 and did not know how she would pay this amount back as she had many financial
obligations and was strapped for money.
In a June 5, 2013 letter, appellant indicated that she was alerted that one of her daughters
spoke of committing suicide. She noted that for this reason she was unable to provide a list of
her monthly bills and expenses and would need additional time to provide that information.
Appellant did not submit an overpayment questionnaire or additional supporting documentation.
She also did not request a prerecoupment hearing.
In a decision dated September 2, 2014, OWCP found that appellant had received a
$2,149.14 overpayment of compensation from April 3 to May 4, 2013 for which she was found
at fault. It advised that the overpayment occurred because appellant had returned to work fulltime, eight hours per day, on April 3, 2013 and continued to receive compensation for total
disability until May 4, 2013. OWCP explained that appellant was paid $3,761.00 in
compensation from March 10 to May 4, 2013. It noted that she was entitled to compensation for
the period March 10 to April 2, 2013 in the amount of $1,611.86. This created an overpayment
of $2,149.14. OWCP was paid through direct deposit into her account.4 It found that appellant
was at fault in creating the overpayment because she reasonably should have been aware that she
was not entitled to compensation benefits for total disability while working full time. Appellant
should have known she was overpaid compensation when she received direct deposits into her
account after she returned to work. OWCP advised that the overpayment would be collected by
withholding $100.00 from continuing compensation payments every four weeks, beginning
October 2, 2014.
On September 8, 2014 appellant, through counsel, requested an oral hearing from the
September 2, 2014 decision.
By decision dated October 30, 2014, the Branch of Hearings and Review denied
appellant’s September 8, 2014 request for a hearing finding that, the final decision concerning an
overpayment is not subject to the hearing provision of 5 U.S.C. § 8124(b).

4

Id.

3

LEGAL PRECEDENT -- ISSUE 1
OWCP regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.5 Failure to request the prerecoupment hearing within 30 days shall
constitute a waiver of the right to a hearing.6 The only right to a review of a final overpayment
decision is with the Board.7 The hearing provisions of section 8124(b) of FECA do not apply to
final overpayment decisions.8
ANALYSIS -- ISSUE 1
The May 16, 2014 preliminary determination of overpayment provided appellant with a
right to request a prerecoupment hearing within 30 days. As noted above, if a claimant does not
request a hearing within 30 days, it is considered a waiver of the right to a hearing.9 When the
final overpayment decision is issued, there is no right to a hearing or a review of the written
record and OWCP does not have discretion to grant such a request. The only right to appeal is
with the Board.10 As appellant’s written request for a hearing dated September 8, 2014 was
dated more than 30 days after the May 16, 2014 preliminary determination, it was untimely and
she thus waived her right to a prerecoupment hearing.11 Furthermore, the Branch of Hearings
and Review properly advised appellant that the decision was not subject to the hearing provision
under 5 U.S.C. § 8124(b).12
LEGAL PRECEDENT -- ISSUE 2
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. OWCP procedures provide that an overpayment in compensation is created when a
claimant returns to work but continues to receive wage-loss compensation.13

5

20 C.F.R. § 10.432.

6

Id.; see also L.C., 59 ECAB 569 (2008); Willie C. Howard, 55 ECAB 564 (2004).

7

Id. at § 10.440(b).

8

Id.; see also Philip G. Feland, 48 ECAB 485 (1997).

9

Id. at § 10.432.

10

Id. at 10.440(b).

11

Id. at § 10.432; see also A.M., Docket No. 13-222 (issued September 25, 2013) and E.V., Docket No. 10-1284
(issued February 3, 2011) (where appellants not only untimely requested a prerecoupment hearing following a
preliminary overpayment determination, but also submitted said request after the preliminary determination was
finalized).
12

Id. at § 10.440(b); see id.

13

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).

4

ANALYSIS -- ISSUE 2
The record indicates that appellant returned to a modified position on April 3, 2013.
Appellant received wage-loss compensation for total disability through May 4, 2013. As noted
above, she is not entitled to receive compensation for total disability after she has returned to
work. Thus, an overpayment occurred.
Since the evidence indicated that appellant returned to full-time work without wage loss
on April 3, 2013, she was not entitled to total disability compensation beginning that date. The
record shows that OWCP calculated that, from March 10 to May 4, 2013, appellant received
$3,761.00 in total net disability compensation but he was only entitled to compensation from
March 10 to April 2, 2013 in the amount of $1,611.86. OWCP explained how the overpayment
occurred and provided this to appellant with the preliminary notice of overpayment. The Board
finds that OWCP properly determined that appellant had received an overpayment of
compensation in the amount of $2,149.14 for the period March 10 to May 4, 2013.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”14 No waiver of an overpayment is possible if the claimant
is at fault in creating the overpayment.15
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.16
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that 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 or she is being overpaid.17

14

5 U.S.C. § 8129(b).

15

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

16

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

17

Id. at § 10.433(b).

5

ANALYSIS -- ISSUE 3
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known to be incorrect. The Board finds,
however, that OWCP failed to establish that at the time she accepted the initial payment of
compensation following her return to work on April 3, 2013, she knew or should have known the
payments were incorrect.
As discussed, in cases where a claimant receives compensation through direct deposit,
OWCP must establish that at the time a claimant received the direct deposit in question that he or
she knew or should have known that the payment was incorrect.18 The Board has held that an
employee who receives payments from OWCP in the form of a direct deposit may not be at fault
for the first incorrect deposit into his or her account since the acceptance of the overpayment, at
the time of receipt of the direct deposit, lacks the requisite knowledge.19 Because fault is defined
by what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that the claimant lacks the requisite knowledge at the
time of the first incorrect payment.20 Whether or not OWCP determines that an individual is at
fault with respect to the creation of an overpayment depends on the circumstances surrounding
the overpayment.21 It is not appropriate, however, to make a finding that a claimant has accepted
an overpayment via direct deposit until such time as a reasonable person would have been aware
that this overpayment had occurred. This awareness could be established either through
documentation such as a bank statement or notification from OWCP or where a reasonable
period of time has passed during which a claimant could have reviewed independent
confirmation of the incorrect payment.22
Appellant received compensation by direct deposit payments every 28 days. The
evidence of record does not establish that, as of the first direct deposit of compensation after she
returned to work on April 3, 2013, she knew or should have known that she was accepting a
direct deposit to which she was not entitled. There is no documentation or other evidence to
demonstrate that appellant had clear knowledge at the time she received a direct deposit from
OWCP on April 6, 2013, covering the period March 10 to April 6, 2013, that a portion of the
payment was incorrect, or that a reasonable period of time passed during which she could have
reviewed bank statements or been informed of the incorrect payment.23 Therefore, appellant is
not at fault in the acceptance of the direct deposit covering the period of the overpayment from
March 10 to April 6, 2013.

18

See C.K., Docket No. 12-746 (issued May 1, 2012).

19

See Tammy Craven, 57 ECAB 689 (2006).

20

Id.

21

Id.; see also K.D., Docket No. 13-451 (issued April 12, 2013).

22

V.S., Docket No. 13-1278 (issued October 23, 2013).

23

Supra note 2.

6

Although OWCP may have been negligent in making incorrect payments, this does not
excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.24 In cases involving a series of incorrect payments, where the requisite knowledge is
established by documentation from OWCP or simply with the passage of time and opportunity
for discovery, the claimant will be at fault for accepting the payments subsequently deposited.25
Thus, by the time of the second payment dated May 4, 2013 (covering the period April 7 to
May 4, 2013) appellant should have known that she was no longer entitled to FECA wage-loss
compensation after she returned to work on April 3, 2013. She should have taken further steps to
prevent issuance of another compensation payment. Accordingly, the Board will affirm the
finding of fault for the remaining April 7 to May 4, 2013 period of overpayment.
The Board finds that this case is not in posture for decision regarding the issue of waiver
of recovery of the overpayment for the direct deposit on April 6, 2013, covering the part of the
overpayment from March 10 to April 6, 2013. The Board will set aside the September 2, 2014
decision regarding the issue of fault as to the April 6, 2013 direct deposit and will remand the
case for OWCP to determine whether appellant is entitled to waiver of recovery for the direct
deposit of compensation covering the period of the overpayment from March 10 to
April 6, 2013.
LEGAL PRECEDENT -- ISSUE 4
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.26
ANALYSIS -- ISSUE 4
In view of the Board’s decision on fault, it is premature to address the issue of recovery
of the overpayment from continuing compensation payments for the period April 3 to
May 4, 2013.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from April 3 to
May 4, 2013. The Board further finds that she was without fault for that portion of the
overpayment covering April 3 to 6, 2013, but that she was at fault in creating that portion of the
overpayment occurring from April 7 to May 4, 2013. The case will be remanded for
consideration of waiver of the recovery of the overpayment from April 3 to 6, 2013. The case is
not in posture for a decision with regard to recovery of the overpayment. Furthermore, OWCP
properly denied appellant’s request for a hearing following a final overpayment decision.

24

See William E. McCarty, 54 ECAB 525 (2003).

25

V.S., supra note 22; K.D., supra note 21.

26

Lorenzo Rodriguez 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the September 2, 2014 decision of the Office of
Workers’ Compensation Programs is set aside in part and affirmed in part. The October 30,
2014 decision is affirmed.
Issued: May 27, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8