United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY, MISSOURI
NATIONAL GUARD, St. Joseph, MO, Employer
__________________________________________

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

Docket No. 07-305
Issued: March 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2006 appellant timely appealed the September 8, 2006 merit decision of
the Office of Workers’ Compensation Programs, which denied his claim for an employmentrelated traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant’s bilateral hearing loss is causally related to his federal
employment.
FACTUAL HISTORY
On March 10, 2006 appellant, a 59-year-old automotive mechanic supervisor, filed an
occupational disease claim for hearing loss. He identified January 5, 2003 as the date of injury
and the date he first realized his condition was employment related. Appellant submitted the
results of 16 audiograms administered between 1986 and 2005. He also provided information
regarding his occupational noise exposure and military service dating back to 1966. As a

mechanic appellant was exposed to hazardous noise from trucks, air tools, air compressors and
power generators. He did not wear hearing protection devices while working as a mechanic.
Since August 1995, appellant worked as a supervisor in an office setting and he was not exposed
to hazardous noise. Additionally, he was exposed to hazardous noise during military service
from February 1966 to February 1968. Appellant also served during the Desert Storm conflict in
January 2001, where he was exposed to hazardous noise from jet planes. He indicated that a
Scud missile once exploded close to his area.
Dr. Mark J. Maslan, a Board-certified otolaryngologist and Office referral physician,
examined appellant on June 7, 2006. Based on appellant’s medical and occupational histories,
physical examination findings and audiometric studies, Dr. Maslan diagnosed bilateral
sensorineural hearing loss and otitis media. As to the cause of appellant’s hearing loss,
Dr. Maslan stated that he did not believe it was related to appellant’s work since 1995. He
explained that the pattern was not typical of noise-induced hearing loss. While appellant had
some history of noise exposure in the past, Dr. Maslan did not believe that there was significant
noise present to account for the type of hearing loss appellant presently demonstrated.
The district medical adviser reviewed Dr. Maslan’s report and advised that appellant’s
claim could not be accepted for employment-related hearing loss.
By decision dated September 8, 2006, the Office denied appellant’s occupational hearing
loss claim. The Office found that the medical evidence established that appellant’s hearing loss
was not employment related.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.2
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 10.115(e), (f) (2006); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty, and
must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factors. Id.

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.3
ANALYSIS
The Board finds that the case is not in posture for decision. Dr. Maslan, the Office
referral physician, was confused about the type and duration of appellant’s federal civilian
occupational noise exposure. He indicated that appellant’s post-1995 occupational exposure was
insufficient to cause his current level of hearing loss. Dr. Maslan attributed appellant’s pre-1995
hearing loss to prior military service, which based on the current record either ended in
February 1968 or some time after March 1978.4 However, Dr. Maslan did not address the
significance of appellant’s occupational exposure during the period beginning in August 1983
through the time appellant assumed his supervisory responsibilities in August 1995. The district
medical adviser did not offer an opinion as to whether Dr. Maslan’s assessment was proper. He
merely advised the Office that it could not accept appellant’s claim based on the doctor’s
findings.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence to see that justice is done.5
Once the Office undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.6 The reports provided by
Dr. Maslan and the district medical adviser are not rationalized and, therefore, the Office did not
properly discharge its responsibilities in developing the record.7 On remand, the Office should
refer appellant, the case record and a statement of accepted facts to an appropriate specialists for
an evaluation and a rationalized medical opinion regarding whether appellant’s claimed bilateral
hearing loss is causally related to his federal civilian occupational exposure. After the Office has
developed the case record to the extent it deems necessary, a de novo decision shall by issued.
CONCLUSION
The Board finds that the case is not in posture for decision.

3

Victor J. Woodhams, supra note 2.

4

It is unclear from the record whether appellant’s tenure with the National Guard beginning March 1978 was as a
federal civilian employee or whether he was on active duty. The Office in its May 9, 2006 statement of accepted
facts characterized appellant’s March 1978 involvement with the National Guard as military service. However, it is
not apparent from the record how the Office reached this conclusion.
5

Horace L. Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell,
34 ECAB 1223 (1983).
6

Richard F. Williams, 55 ECAB 343, 346 (2004).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the September 8, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this opinion.
Issued: March 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 14-205
Issued: April 7, 2014

Case Submitted on the Record

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

JURISDICTION
On November 5, 2013 appellant, through her attorney, filed a timely appeal from an
October 17, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days elapsed from the last merit decision dated January 29,
2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of her claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration under 5 U.S.C. § 8128.

1

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
This is the second appeal before the Board. On May 22, 2012 appellant, a 52-year-old
mail processor, filed a claim for a left shoulder sprain causally related to factors of her
employment. By decision dated July 11, 2012, OWCP denied her claim, finding that she failed to
establish fact of injury. It also found that appellant failed to submit sufficient medical evidence
in support of her claim that she sustained a left shoulder condition due to her work activities.
In a report dated July 24, 2012, received by OWCP on December 13, 2012, Dr. Jaime
Sabogal, Board-certified in orthopedic surgery, diagnosed cervical radiculopathy, spondyloarthropathy and sprain of the left shoulder and left upper arm. He advised that x-ray testing
showed that appellant had impingement syndrome in her left shoulder. In a November 29, 2012
report, received by OWCP on January 4, 2013, Dr. Sabogal reiterated that his initial examination
on July 24, 2012 was consistent with left shoulder impingement syndrome. He asserted that
appellant’s repetitive work duties caused her to overuse her left shoulder and made it more prone
to injury. Dr. Sabogal opined that she had left shoulder impingement syndrome produced and
aggravated by her work duties and that she required further treatment.
By decision dated January 29, 2013, OWCP’s hearing representative found that appellant
established that she was exposed to the claimed work factors. He found, however, that she failed
to submit medical evidence sufficient to establish that she sustained a left shoulder condition in
the performance of duty.
In a September 10, 2013 decision,2 the Board affirmed the January 29, 2013 decision.
The facts of this case as set forth in the Board’s September 10, 2013 decision are incorporated by
reference.
By letter dated September 23, 2013, counsel requested reconsideration. He submitted an
October 7, 2013 brief which cited Board case law regarding fact of injury, causal relationship
and disability.
In a September 23, 2013 form report, Dr. Sabogal reiterated the diagnosis of left shoulder
impingement. He listed the dates of appellant’s treatment, prescriptions and course of treatment.
By decision dated October 17, 2013, OWCP denied appellant’s application for review. It
found that she did not raise a substantive legal question or include new and relevant evidence
sufficient to require further merit review.
LEGAL PRECEDENT
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 considered by OWCP; or by constituting relevant and
pertinent evidence not previously considered by OWCP.3 Evidence that repeats or duplicates
2

Docket No. 13-856 (issued September 10, 2013).

3

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

2

evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.4
ANALYSIS
The Board finds that appellant did not establish that OWCP erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously
considered.
Counsel submitted a brief to OWCP on October 7, 2013 citing to Board case law on
causal relationship and contribution. The Board does not have jurisdiction over the merits of the
case. Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law or advance a relevant new legal argument. The pleading is duplicative of a brief
presented to the Board on the prior appeal, dated August 1, 2013.5
OWCP also received a new medical report. Dr. Sabogal’s September 23, 2013 form
report reiterated the diagnosis of left shoulder impingement. It included no rationalized medical
opinion on causation. This evidence is also cumulative and duplicative.6 Counsel argued
generally to OWCP that it erred in finding that appellant failed to submit medical evidence
sufficient to establish a causal relationship between her left shoulder condition and the accepted
employment factors. He contends that Dr. Sabogal’s September 23, 2013 report is sufficient to
establish causation. Dr. Sabogal’s form report does not provide a sufficient basis to reopen
appellant’s claim for merit review as it is duplicative of his prior reports of record. Appellant’s
reconsideration request failed to show that OWCP erroneously applied or interpreted a point of
law nor did it advance a point of law or fact not previously considered by it. OWCP did not
abuse its discretion in refusing to reopen her claim for a review on the merits in its October 17,
2013 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

5

See S.E., Docket No. 13-1931 (issued February 10, 2014).

6

See Patricia G. Aiken, 57 ECAB 441 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2014
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, ROSELAND POST
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-1757
Issued: April 15, 2020

Case Submitted on the Record

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

JURISDICTION
On August 19, 2019 appellant filed a timely appeal from a February 20, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision in this case was a November 28, 2017 Board decision, which became final 30 days after
issuance, and is not subject to further review. 1 As there was no merit decision issued by OWCP
within 180 days prior to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits
of this case.3

1

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.

3
The record provided to the Board includes evidence received after OWCP issued its February 20, 2019 decision.
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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case had previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 23, 2005 appellant, then a 48-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that, on or before March 28, 2005, she sustained
neck, back, and right shoulder injuries due to factors of her federal employment including
repetitive lifting and bending. She stopped work in May 2005 and did not return.
On August 14, 2006 OWCP accepted that appellant sustained a herniated C5-6 disc, lumbar
strain, and right rotator cuff tear. As of September 9, 2008, it expanded its acceptance of the claim
to include the additional conditions of bilateral hip and thigh strains. On November 26, 2008
OWCP further expanded its acceptance of the claim to include the additional condition of an
aggravation of osteoarthritis of both hips.
By decision dated February 3, 2009, OWCP issued appellant a schedule award for 10
percent permanent impairment of each lower extremity. Appellant subsequently claimed an
additional schedule award for lower extremity permanent impairment due to thoracic disc
herniations. OWCP developed the claim as one for a consequential condition. By decision dated
July 28, 2014, it denied appellant’s claim for thoracic disc herniations at T8-9, T9-10, and T10-11.
Following an oral hearing, by decision dated April 21, 2015, an OWCP hearing representative
affirmed the July 28, 2014 decision. Appellant then appealed to the Board. By decision dated
February 10, 2016,5 the Board affirmed OWCP’s April 21, 2015 merit decision.
On June 21, 2016 appellant requested reconsideration and submitted additional medical
evidence. By decision dated August 25, 2016, OWCP denied modification of its February 3, 2009
schedule award determination and affirmed the hearing representative’s April 21, 2015 denial of
a consequential thoracic spine condition. Appellant subsequently appealed to the Board. By
decision issued November 28, 2017,6 the Board affirmed OWCP’s August 25, 2016 decision,
finding that the medical evidence of record failed to establish greater than 10 percent permanent
impairment of each lower extremity, or that she sustained a consequential thoracic spine condition.
On November 20, 2018 appellant requested reconsideration of OWCP’s August 25, 2016
decision. She submitted statements dated from January 30 to November 19, 2018 alleging that
4
The Board issued the following decisions pursuant to OWCP File No. xxxxxx862, the claim currently on appeal:
Docket No. 17-0767 (issued November 28, 2017); Docket No. 15-1879 (issued February 10, 2016); Docket No. 092007 (issued May 21, 2010, petition for recon. denied); Docket No. 09-2007 (issued September 28, 2010).
5

Docket No. 15-1879 (issued February 10, 2016).

6

Docket No. 17-0767 (issued November 28, 2017).

2

OWCP erred by failing to list bilateral hip osteoarthritis as an accepted condition in an October 9,
2008 letter to Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon, inquiring as
to whether she had sustained a bilateral hip condition other than accepted strains/sprains.
Appellant also submitted correspondence to and from OWCP regarding the status of her claim, 7
printouts from a U.S. Postal Service website, and copies of documents previously of record.
By decision dated February 20, 2019, OWCP denied further merit review of appellant’s
claim pursuant to 5 U.S.C. § 8128(a) finding that her reconsideration request neither raised
substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 10 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 11 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 12

7

In a February 2, 2018 letter, OWCP explained that the October 9, 2008 letter to Dr. Chmell did not list bilateral
hip osteoarthritis as an accepted condition as it was not accepted until November 26, 2008.
8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
9

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit 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.
11

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

12

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

3

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration does not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered. Thus, she is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
With her request for reconsideration appellant provided statements alleging that OWCP
erred by failing to list accepted bilateral hip conditions in an October 9, 2008 letter, claim status
correspondence, printouts from a U.S. Postal Service website, and copies of evidence previously
of record. However, evidence which repeats or duplicates evidence already in the case record has
no evidentiary value and does not constitute a basis for reopening a case. 13 The internet printouts
and case status correspondence are not relevant to the underlying issue of the claim as they do not
constitute medical evidence. 14 The Board notes that the submission of evidence that does not
address the particular underlying issue involved does not constitute a basis for reopening a case. 15
As appellant did not provide relevant and pertinent new evidence regarding the underlying issues
of permanent impairment or causal relationship, she is not entitled to a review of the merits of her
claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).16
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.17
On appeal appellant alleges a pattern of corruption and misfeasance by the employing
establishment and OWCP. As set forth above, she did not satisfy the requirements of 20 C.F.R.
§ 10.606(b)(3) and, thus, further merit review was not warranted.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
13
J.W., Docket No. 19-1795 (issued March 13, 2020); A.K., Docket No. 19-1210 (issued November 20, 2019); R.S.,
Docket No. 19-0312 (issued June 18, 2019); Richard Yadron, 57 ECAB 207 (2005).
14

C.T., Docket No. 19-0058 (issued June 14, 2019); J.G., Docket No. 15-251 (issued April 13, 2015); Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
15

N.C., Docket No. 19-1378 (issued February 13, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECAB 140 (2000).
16

J.W., supra note 13, A.K., supra note 13; P.C., Docket No. 18-1703 (issued March 22, 2019).

17
A.K., supra note 13; A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued
April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

4

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS NEW JERSEY HEALTH
CARE SYSTEM, Lyons, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1152
Issued: April 24, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 4, 2017 appellant, through counsel, filed a timely appeal from a November 30,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 22, 2016, as her accepted right fifth
metatarsal fracture had ceased without residuals.
FACTUAL HISTORY
OWCP accepted that on April 1, 2015 appellant, then a 59-year-old licensed practical
nurse, tripped and fell at work on adhesive used to repair an uneven tile floor, twisting her right
foot to the lateral side, causing a fracture of the fifth metatarsal of the right foot. Appellant stopped
work on that same day. OWCP paid compensation for temporary total disability from May 17
through September 20, 2015.
Appellant was first treated in an urgent care center by Dr. Boris Yakubov, a Board-certified
internist. Dr. Yakubov obtained April 2, 2015 x-rays of the right foot demonstrating “[a]cute
transversely oriented comminuted nondisplaced intra-articular fractures of the proximal
diametaphysis and base of the fifth metatarsal with associated surrounding soft tissue swelling and
edema.”
Dr. William Hoffman, an attending podiatrist, followed appellant beginning on
April 2, 2015. He diagnosed a comminuted fifth right metatarsal base fracture with minimal
displacement. Dr. Hoffman noted osteopenia in the bones of the right foot and ankle. He
submitted periodic chart notes through June 19, 2015 relating appellant’s symptoms of increasing
pain, numbness, and tingling in her right foot although the fracture appeared to be healing.
In June 22, 2015 reports, Dr. Hoffman noted that x-rays taken at two-week intervals from
April 14 to June 2, 2015 documented sequential improvement “suggestive of an adequate healing
process.” Although the fracture appeared to be healing, appellant complained of increasing pain
symptoms at the fracture site, with numbness and tingling in the toes of the right foot. Dr. Hoffman
opined that appellant’s symptoms were consistent with Complex Regional Pain Syndrome
(CRPS). He held appellant off work.3 In an August 10, 2015 report, Dr. Hoffman noted that x-rays
obtained that day showed that the accepted fracture had nearly healed, with only a “very small
gap” at the lateral cortex. He referred appellant to a pain management specialist “for further
evaluation and treatment of suspected complex regional pain syndrome.” Dr. Hoffman continued
to hold appellant off work.
Appellant was then followed by Dr. Sean Li, an attending Board-certified anesthesiologist.
In August 19, 2015 reports, Dr. Li provided a history of injury and treatment. He noted appellant’s
antalgic gait, and related her symptoms of chronic right foot pain. On examination Dr. Li found
“[f]ocal pain and slight rubor noted at the lateral aspect of the right foot over the 5th metatarsal,”
with no other changes in skin color or temperature. He opined that appellant’s “clinical history

3

From July to October 2015, appellant received medical management services from an OWCP field nurse.

2

and physical exam [were] not suggestive of complex regional pain syndrome.” Dr. Li ordered a
right foot magnetic resonance imaging (MRI) scan.4
On September 8, 2015 reports Dr. Hoffman released appellant to limited-duty work for
four hours a day effective September 21, 2015.
On September 21, 2015 appellant returned to modified-duty work for four hours a day.
OWCP paid compensation for the remaining four hours a day.
In a September 24, 2015 report, Dr. Li noted that appellant continued to report chronic
shooting pain and paresthesias in the right foot. He recommended a diagnostic lumbar sympathetic
block to determine if appellant had CRPS. OWCP authorized the nerve block procedure.
On October 14, 2015 OWCP obtained a second opinion from Dr. Lawrence Barr, a Boardcertified orthopedic surgeon. Dr. Barr reviewed medical records dated through August 26, 2015,
and the statement of accepted facts. On examination he found full motion of the right ankle and
all toes. Dr. Barr opined that the accepted right fifth metatarsal fracture was at maximum medical
improvement and required no further treatment. He explained that there were no objective findings
to substantiate appellant’s subjective complaints of pain and paresthesias, noting that she was able
to stand on her toes and heels and there was no swelling present. Dr. Barr released appellant to
full duty without restrictions.
Dr. Li performed a right-sided L3 sympathetic block on October 23, 2015 to address right
foot pain and possible CRPS. In November 2, 2015 reports, he increased appellant’s work
tolerance from four to five hours a day. Appellant worked four hours a day from November 2,
2015 onward. OWCP paid compensation for the remaining four hours a day.
In a November 12, 2015 report, Dr. Li noted that appellant experienced 70 percent pain
relief in her right foot following the lumbar sympathetic block. Appellant continued in physical
therapy and taking prescribed medications. Dr. Li increased appellant’s work tolerance from four
to six hours during the following two weeks.
In a November 19, 2015 report, Dr. Li noted that appellant had 70 percent relief of right
foot pain and paresthesias from the time of the October 23, 2015 lumbar sympathetic nerve block
to November 15, 2015. He diagnosed a closed metatarsal fracture, right foot and ankle pain, and
Type 1 CRPS of the right lower extremity, based on her significant response to the nerve block.
Dr. Li commented that appellant showed few “objective findings of residual dysfunction,” with
the only objective finding being her “significant response to the lumbar sympathetic block.” He
scheduled appellant for a second nerve block. Dr. Li noted continuing work restrictions.
By notice dated December 15, 2015, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits as the accepted right fifth metatarsal fracture
had resolved without residuals, based on Dr. Barr’s opinion. It noted that Dr. Li failed to provide
An August 26, 2015 MRI scan of the right forefoot demonstrated “a healed or nearly healed nondisplaced fracture
of the base of the fifth metatarsal” with bony bridging at the center of the fracture line. Appellant participated in
physical therapy in August and September, 2015.
4

3

adequate rationale explaining why appellant still required treatment or had any work-related
disability. OWCP afforded appellant 30 days to submit additional evidence and argument.
In response, appellant, through counsel, submitted a January 7, 2016 report from
Dr. Hoffman. Counsel contended that there was a conflict of opinion between Dr. Hoffman, for
appellant, and Dr. Barr, for the government, as to whether the accepted right metatarsal fracture
resolved without residuals.
In his January 7, 2016 report, Dr. Hoffman noted that he initially believed appellant’s right
foot paresthesias were transient neuropraxia, but appellant’s symptoms became chronic. As
August 10, 2015 x-rays demonstrated a well-healed fracture, he referred appellant to Dr. Li. While
Dr. Li initially discounted CRPS, appellant exhibited a significant response to a diagnostic lumbar
sympathetic nerve block. Dr. Hoffman therefore opined that appellant’s “continued pain could be
attributed to complex regional pain syndrome,” causally related to prolonged immobilization and
the delay in beginning physical therapy. He explained that, while appellant’s subjective findings
were consistent throughout treatment, they did “not correlate clinically with all objective findings
seen with complex regional pain syndrome,” although appellant’s response to prescription
medication and the nerve block indicated “some degree of a neurological component to her pain.”
Dr. Hoffman restricted appellant to limited duty.
By decision dated January 22, 2016, OWCP terminated appellant’s wages-loss
compensation and medical benefits effective that day, finding that the accepted right fifth
metatarsal fracture resolved without residuals, based on Dr. Barr’s opinion as the weight of the
medical evidence. It noted that Dr. Hoffman opined that appellant’s subjective findings did not
correlate with the objective signs of CRPS.
In a February 8, 2016 letter, appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. In a June 14, 2016 letter, counsel
requested that OWCP expand the acceptance of the claim to include CRPS.
At the hearing, held September 26, 2016, counsel asserted that Dr. Li’s reports concerning
appellant’s significant response to the lumbar sympathetic nerve block were sufficient to expand
the claim to include CRPS. He also contended that OWCP erred by terminating appellant’s
compensation because Dr. Barr did not have an opportunity to review Dr. Li’s reports.
Alternatively, counsel asserted that there was a conflict of medical opinion between Dr. Barr and
appellant’s physicians requiring resolution by an impartial medical examiner. Counsel submitted
additional evidence.
In a January 11, 2016 report, Dr. Li explained that “complex regional pain syndrome is
often characterized by persistent pain despite healing of the initial injuries due to abnormal healing
of the local peripheral nerves.” He noted that while appellant’s initial presentation on August 19,
2015 was questionable for CRPS, “there was an element of neuropathic pain that was treated with
topical anti-inflammatory, an oral anti-convulsant, and physical therapy.” As appellant continued
to report “burning, numbness, and sensitivity” in the right foot, he recommended a “diagnostic
lumbar sympathetic block to help rule in or out sympathetically mediated pain.” As appellant
“responded positively to the diagnostic lumbar sympathetic block, there is clinical evidence
supporting the diagnosis of sympathetically mediated neuropathic pain concerning for complex

4

regional pain syndrome despite fulfilling the full Budapest criteria.” Dr. Li strongly recommended
a repeat lumbar sympathetic nerve block to give appellant the greatest chance of recovery.
In a July 6, 2016 report, Dr. Hoffman reviewed appellant’s history of injury and treatment.
He opined that she had elements of neuropathic pain beginning in the fifth week of treatment.
Although appellant had few objective signs of CRPS, her strong response to the lumbar
sympathetic nerve block was a substantial indicator that she did have the condition. Dr. Hoffman
opined that the April 1, 2015 fifth metatarsal fracture precipitated CRPS.
By decision dated November 30, 2016, OWCP’s hearing representative affirmed the
January 22, 2016 termination, finding that OWCP met its burden of proof to terminate wage-loss
compensation and medical benefits at that time. She explained that Dr. Li initially found that
appellant “did not have clinical evidence of CRPS and Dr. Hoffman only speculated that
[appellant] might have neurologic pain.” Dr. Barr noted that appellant had only subjective
complaints without clinical correlation. The hearing representative found that, following the
January 22, 2016 termination, Dr. Li’s January 11, 2016 report and Dr. Hoffman’s July 6, 2016
report provided sufficient rationale discussing the development of CRPS to warrant additional
development on the issue of continuing residuals or disability. She directed that OWCP request
that a district medical adviser review the record and opine if the accepted April 1, 2015 fracture
caused CRPS for any period, and if there was evidence of record that the CRPS continued after
January 22, 2016. The hearing representative noted that a district medical adviser could also “offer
guidance with regard to any need for further examination or studies.”
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9

5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

5

ANALYSIS
OWCP accepted that appellant sustained a right fifth metatarsal fracture on April 1, 2015
when she tripped and fell on adhesive used to repair a tile floor. It paid compensation for total
disability through September 20, 2015. Since the date of injury, appellant was followed by
Dr. Hoffman, an attending podiatrist. In reports through August 10, 2015, he observed that, while
the accepted fracture was healing well, appellant complained of increasing pain and paresthesias
in the right foot indicative of CRPS. Dr. Hoffman referred appellant to Dr. Li, an attending Boardcertified anesthesiologist, who opined that, although appellant’s clinical history and physical
examination were not suggestive of CRPS, on September 24, 2015, he recommended a diagnostic
lumbar sympathetic nerve block.
On October 14, 2015 OWCP obtained a second opinion from Dr. Barr, a Board-certified
orthopedic surgeon, who opined that there were no objective findings to substantiate appellant’s
right foot pain and paresthesias. As the accepted fracture had resolved, Dr. Barr released appellant
to full duty without restrictions. He noted that there was no basis on which to attribute any
continuing condition or disability to the April 1, 2015 work injury.
Following Dr. Barr’s examination, Dr. Li performed a right-sided L3 sympathetic block on
October 23, 2015. He explained, in a November 19, 2015 report, that appellant’s achievement of
70 percent reduction in pain and paresthesia symptoms following the nerve block corroborated a
diagnosis of CRPS although she did not meet the diagnostic criteria. Dr. Hoffman offered similar
rationale in his January 7, 2016 report, adding that prolonged immobilization and a delay in
beginning physical therapy were also known triggers for CRPS.
OWCP terminated appellant’s wage-loss compensation and medical benefits, effective
January 22, 2016, predicated on Dr. Barr’s opinion as the weight of the medical evidence. The
Board finds that the termination was proper. Both Dr. Li and Dr. Hoffman opined that appellant
had CRPS although her presentation did not meet standard diagnostic criteria for the condition.
The equivocal nature of these opinions significantly diminishes their probative value.10 In contrast,
Dr. Barr provided a detailed history and findings on examination, explaining that appellant had no
objective evidence of any injury-related residuals, or any abnormality that would explain her
subjective symptoms. His well-rationalized opinion is sufficient to represent the weight of the
medical evidence.11
On appeal counsel contends that Dr. Li’s and Dr. Hoffman’s reports on CRPS received by
OWCP prior to the termination were sufficient to warrant additional development. As noted

10

See Steven S. Saleh, 55 ECAB 169 (2003).

11

As noted, OWCP’s hearing representative found that additional development was warranted regarding whether
appellant established continuing residuals or associated disability due to the accepted right fifth metatarsal fracture on
and after January 22, 2016, and remanded the case to obtain additional medical opinion. The Board is without
jurisdiction to address this aspect of the hearing representative’s decision as Board regulations provide that there will
be no appeal with respect to any interlocutory matter decided (or not decided) by OWCP during the pendency of a
case. 20 C.F.R. § 501.2(c)(2).

6

above, the reports of record at the time of the termination were equivocal in nature and, therefore,
insufficient to require further development.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 22, 2016, as her accepted right fifth
metatarsal fracture had ceased without residuals.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 30, 2016 is affirmed.
Issued: April 24, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL BASE
KITSAP -- BREMERTON, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 15-271
Issued: May 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 19, 2014 appellant filed a timely appeal from a July 24, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $1,988.28 overpayment of compensation
for the period February 23 through March 22, 2014, for which she was not at fault, because
compensation was based on an incorrect pay rate; and (2) whether OWCP properly denied
waiver of recovery of the overpayment.
On appeal, appellant asserts that her annual pay rate as a grade 7 step 5 firefighter with a
144-hour pay period (biweekly) is $72,854.86, not $47,378.00.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 8, 2014 appellant, then a 33-year-old grade 7 step 5 firefighter, filed a
traumatic injury claim alleging that at approximately 9:30 a.m. that day she slipped and fell
while exiting the fire apparatus, fractured her radius and suffered a left ankle sprain. OWCP
accepted a right radius fracture and a left ankle sprain. Appellant stopped work on
January 8, 2014. She returned to full-time modified duty with restrictions on March 3, 2014.
On February 13, 2014 appellant filed a (Form CA-7) claim for compensation claiming
leave without pay during the period February 23 through March 8, 2014. On March 20, 2014 she
filed a Form CA-7 claim for compensation claiming leave without pay for the period March 9
through 22, 2014. Form CA-7a time analysis forms were filed for 104 hours for the period
February 23 through March 8, 2014 and 81 hours for the period March 9 through 22, 2014.
On the original Form CA-7 claim of February 13, 2014, the employing establishment
indicated that appellant received continuation of pay for the period January 9 through
February 22, 2014, that she earned $72,854.86 annually and was grade 7 step 5 at the time of
injury. It stated that she was a firefighter who worked 144 hours per pay period. A nontitled
note in the file regarding appellant’s salary noted her annual salary as $47,378.00 and the annual
rate for a firefighter working 144 hours per pay period as $72,854.86.
In the initial payment memorandum, OWCP noted that appellant works 144 hours per
pay period as a firefighter with an annual salary of $72,854.86. In the attached pay rate
calculation worksheet, appellant’s weekly pay rate was determined to be $2,154.86.
On March 31, 2014 appellant received, by direct deposit, a net payment of $1,566.61 for
the period February 23 through March 1, 2014. This included a gross payment of $1,616.15 less
health benefit insurance of $43.91 and a basic life insurance benefit of $5.63. Compensation was
paid at the augmented rate based on the weekly pay rate of $2,154.86. On April 8, 2014
appellant received, by direct deposit, a net payment of $2,909.06 for the period March 5
through 22, 2014. This included a gross payment of $2,909.06 paid at the augmented rate based
on a weekly pay rate of $2,154.86. No deductions were taken out
Appellant filed additional CA-7 and CA-7a forms.
A firefighters pay worksheet, tour of a 144-hour pay period, noted appellant’s annual
grade 7, step 5 salary of $46,910.00 with a weekly pay rate of $1,387.21.
In an April 30, 2014 corrected payment memorandum and pay rate calculation worksheet,
OWCP noted appellant’s annual salary as $47,378.00 with a weekly pay rate of $1,401.08.
In an April 30, 2014 file note, OWCP noted that there were three figures in the file with
regard to appellant’s base salary at of the date of injury: $47,378.00, $46,910.00, and
$72,854.86. The employing establishment confirmed that her base salary at of the date of injury
was $47,378.00.
In an ACPS manual/fiscal payment worksheet, OWCP calculated an overpayment of
$1,988.28 for the period February 23 to March 22, 2014. It noted that calculations were
2

originally based on the base pay of $72,854.86 instead of the correct base pay rate of $47,378.00.
During the period February 23 through March 1, 2014, appellant was paid gross pay of
$1,616.15 for seven days but was only entitled to $1,050.81 which resulted in a difference of
$565.34. For the period March 5 through 22, 2014, she received $2,909.06 gross, but was only
entitled to $1,486.14 which resulted in a difference of $1,422.92. A copy of the April 30, 2014
corrected payment memorandum based on an annual salary of $47,378.00 was attached along
with corrected worksheets for the periods February 23 through March 1, 2014 and March 5
through 22, 2014.
On May 29, 2014 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $1,988.28 had been created for the period February 23 through
March 22, 2014, for which appellant was not with fault. It noted that it had used an annual base
pay of $72,854.86 in calculating the pay rate instead of the correct annual base pay rate of
$47,378.00. OWCP referred to the above nontitled note in the file, which noted her annual
salary as $47,378.00 and the annual rate for a firefighter working 144 hours per pay period as
$72,854.86, and noted that the correct weekly pay rate was $1,401.052 but was incorrectly
calculated at $2,154.86. It stated that appellant was paid a total of $4,535.21 for the above
period, but should only have been paid $2,536.95, which generated an overpayment of
$1,988.26. Appellant was provided an overpayment action request form and an overpayment
questionnaire.
By decision dated July 24, 2014, OWCP finalized the preliminary overpayment decision.
It advised appellant to send a check in the amount of $300.00 each month until the overpayment
was repaid.
LEGAL PRECEDENT -- ISSUE 1
The Federal Firefighters Overtime Pay Reform Act of 19983 is used to determine the rate
of pay for firefighters with regular tours of duty which generally consist of 24-hour shifts.
Although overtime pay is normally not included in determining pay rate for compensation
purposes under section 8114 of FECA, section 5545(b) was amended to establish that overtime
pay for firefighters, under that section, shall be included in any computation of pay under section
8114.4 OWCP’s procedures established a formula for determining pay rate for these firefighters,
as follows: The annual salary is divided by 2756 (53 hours of regular pay per week x 52 weeks)
to equal firefighter hourly rate; the firefighter hourly rate is multiplied by 106 hours to equal
biweekly base pay; the firefighter hourly rate is multiplied by 1.5 to equal firefighter overtime
rate; the firefighter overtime rate is multiplied by the number of hours in a regular tour in excess
of 106 hours to equal the biweekly firefighter overtime; the biweekly base pay is added to the
biweekly firefighter overtime and then divided by two to equal the firefighter weekly pay rate.5
2

This should have been listed as $1,401.08.

3

5 U.S.C. § 5545(b).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.8(d)
(August 2012).

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The procedures further indicate that most 24-hour shift firefighters have a regular biweekly tour
of 144 hours (6 24-hour shifts) consisting of 106 regular hours and 38 firefighter overtime hours;
thus 38 hours (144-106) would be used to determine the firefighter overtime pay rate.6
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 duty.7 Section 8129 provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”8
ANALYSIS -- ISSUE 1
The Board has reviewed the case record and concludes that OWCP properly determined
that an overpayment of compensation was created based on an incorrect pay rate during the
period February 23 to March 22, 2014.
On January 8, 2014 appellant fractured her right radius and suffered a left ankle sprain in
the performance of duty. She stopped work that day and received continuation of pay for the
period January 9 through February 22, 2014, and thereafter received wage-loss compensation
based on an annual base pay of $72,854.86 with a weekly pay rate of $2,154.86, based on the
firefighter pay rate formula, until her return to modified work for eight hours a day on
March 3, 2014. On April 30, 2014 OWCP noted that appellant’s base pay was $47,378.00. It
thereafter declared an overpayment in compensation based on the incorrect pay rate during the
period February 23 to March 22, 2014.
On appeal, appellant asserts that $72,854.86 is her annual salary as a grade 7 step 5
firefighter with a 144-hour pay period as evidenced by her “Leave and Earnings Statement.”
However, there is no evidence of record which supports her contention that her base pay is
$72,854.86. As noted, the employing establishment informed OWCP on April 30, 2014 that
appellant’s correct base pay was $47,378.00. As there is no evidence to the contrary, OWCP
properly determined that her base pay is $47,378.00.
The record supports that appellant’s annual salary as a grade 7 step 5 firefighter was
$47,378.00, including locality pay. By utilizing the firefighter pay rate formula described in
OWCP’s procedures above, to determine the correct pay rate for compensation purposes, her
annual salary of $47,378.00 was divided by 2,756, which yielded a firefighter hourly rate of
$17.19; this in turn was multiplied by 106 hours to yield a biweekly base pay of $1,822.14; the
next step was to multiply the firefighter hourly rate of $17.19 times 1.5 to find the firefighter
overtime rate of $25.79; this in turn was multiplied by 38, the number of hours in excess to 106,
6

Id.

7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

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to determine the biweekly firefighter overtime of $980.02. The biweekly base pay and biweekly
firefighter overtime were then added to yield $2,802.16, which was divided by 2, to yield a
$1,401.08 weekly pay rate for compensation purposes. Appellant was compensated at the 75
percent augmented rate. As appellant was compensated based on an incorrect weekly pay rate of
$2,154.86 when her compensation should have been based on a weekly pay rate of $1,401.08, an
overpayment of compensation was created.9 The Board notes in this regard that the weekly pay
rate of $1,401.08, based on the annual salary of $47,378.00, when adjusted to the overtime pay
rate for a firefighter, equals the adjusted annual rate of $72,854.86.
OWCP also properly calculated that an overpayment of $1,988.26 was created, for which
appellant was without fault. The overpayment worksheets reflect that during the period
February 23 through March 1, 2014, appellant was paid $1,566.61 but should have received
$1,001.27, a difference of $565.34. During the period March 5 through 22, 2014, she was paid
$2,909.06 when she should have received $1,486.14, a difference of $1,422.92. Thus, an
overpayment of $1,988.26 ($565.34 + $1,422.92) was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA10 provides that an overpayment must be recovered unless
incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good
conscience.11
Section 10.438 of OWCP’s regulations state that a claimant who received an
overpayment of compensation is responsible for providing information about income, expenses,
and assets to OWCP so that it may determine whether recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience.12 Failure to submit the
information, which will also be used to determine a repayment schedule if necessary, more than
30 days after a request from OWCP, will result in a denial of a waiver of recovery of the
overpayment and no further requests for waiver will be considered until the information is
submitted.13

9

Supra note 5; see J.P., Docket No. 14-1101 (issued October 8, 2014); see G.W., Docket No. 11-1271 (issued
October 25, 2012).
10

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

11

L.C., 58 ECAB 493 (2007).

12

Id. at § 10.438(a).

13

Id. at § 10.438(b); Robert B. Hutchins, 52 ECAB 344 (2001).

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ANALYSIS -- ISSUE 2
OWCP, in its preliminary notification to appellant of the existence of the overpayment,
informed her that she needed to explain her reasons for seeking a waiver, complete the recovery
questionnaire form, and submit financial documents to support her claimed income and
expenses. The overpayment recovery questionnaire is designed to obtain the financial
information to determine whether adjustment or recovery would defeat the purpose of FECA.
Appellant did not return the overpayment recovery questionnaire provided by OWCP and did not
otherwise submit financial evidence or supporting documentation to establish that recovery of
the overpayment would defeat the purpose of FECA, or would be against equity and good
conscience because, in reliance on the overpaid compensation, she relinquished a valuable right
or changed her position for the worse. Although appellant is without fault in the creation of the
overpayment, she nevertheless bears responsibility for providing the financial information
necessary to support her request to waive recovery of the overpayment. As appellant did not
meet the requirement of Section 10.438 of OWCP’s regulations,14 the Board finds that OWCP
properly denied waiver of recovery of the overpayment.
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.15 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.16

14

Id.

15

Cheryl Thomas, 55 ECAB 610 (2004).

16

Id.

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CONCLUSION
The Board finds that OWCP properly found an overpayment of compensation was
created based on the incorrect pay rate. The amount of overpayment was also properly
calculated. OWCP properly denied waiver.
ORDER
IT IS HEREBY ORDERED THAT the July 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
No appearance, for the Director

Docket No. 07-396
Issued: July 6, 2007

Oral Argument June 5, 2007

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

JURISDICTION
On December 8, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 8, 2006 merit decision denying his claim for recurrence of
disability on and after March 11, 1995. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related recurrence of disability on or after March 11, 1995.
FACTUAL HISTORY
On June 27, 1990 appellant, then a 49-year-old mail handler, filed an occupational
disease claim alleging that he sustained a pinched neck nerve due to such repetitive duties as
handling and lifting heavy mail sack, trays and boxes. The Office accepted that appellant
sustained a neck neuropathy (pinched nerve) and paid compensation for periods of disability. In
an April 9, 1991 report, Dr. Boswell B. Dorsett, an attending Board-certified neurologist,

indicated that appellant suffered from a left cervical radiculopathy involving the sixth left
cervical root. Dr. Dorsett stated that appellant had marked pain when working above his
shoulder with his left arm.
In mid 1991 appellant began working in various light-duty positions for the employing
establishment. By late 1991, appellant’s periods of work stoppage increased and he generally
used sick leave or went on leave without pay status. On December 18, 1991 he underwent a
posterior foraminotomy at C4-5 and C5-6 which was authorized by the Office. By early 1993,
appellant was working four hours per day in a light-duty position for the employing
establishment.
On June 2, 1993 appellant returned to full-time work for the employing establishment as
a modified mail handler. The position involved removing labels from letter trays and threepound cardboard sleeves and stacking the trays and sleeves with assistance from coworkers when
stacking above shoulder height. Two 15-minute breaks and a 30-minute lunch break were
allowed. The physical duties of the position required intermittent lifting for four to six hours per
day of no more than 20 pounds (with no lifting for more than two hours at a time), intermittent
simple grasping for four to six hours per day (with no grasping for more than two hours at a
time), intermittent sitting for four to six hours per day, walking for up to one hour per day,
intermittent sitting for four to six hours per day and intermittent standing for four to six hours per
day. On May 12, 1993 Dr. Dorsett indicated that appellant was capable of performing the
modified mail handler position.1
Appellant accepted disability retirement with the Office of Personnel Management
effective June 15, 1995. Beginning in March 1995, he filed claims for continuing claim
compensation on account of disability (Forms CA-8) for wage loss for the period beginning
March 11, 1995 and continuing. Between March and June 1995, appellant tended to work for
four hours per day and went into leave without pay for the other four hours per day. On
February 3, 1998 appellant filed a claim for a recurrence of disability (Form CA-2a) beginning
June 15, 1995. He indicated that he never returned to full duty and was working four hours per
day until he retired on June 15, 1995. On March 12, 2002 appellant filed a claim for
compensation (Form CA-7) for wage loss due to use of leave without pay for the period
beginning June 1, 1995 and continuing.2
In a July 15, 2005 decision, the Office denied the claims effectuated by appellant’s CA-7,
CA-8 and CA-2a forms finding that he had not met his burden of proof to establish that he
sustained a recurrence of disability on and after March 11, 1993. The Office found that there
1

In an August 2, 1993 award of compensation, the Office granted appellant a schedule award for a 47 percent
permanent impairment of his left arm. In January 2007, the Office reduced the schedule award to reflect that
appellant actually had a 14 percent permanent impairment of his left arm. The Office later declared an overpayment
as a result of this partial rescission of schedule award compensation. In January 2002, appellant established that he
had a 43 percent permanent impairment of his left arm.
2

The precise nature of appellant’s recurrence of disability claim, effectuated by these forms, is unclear. It
appears that he is claiming partial disability compensation for the period March 11 to June 1, 1995 and total
disability compensation for the period June 1, 1995 and continuing. Appellant continued to receive medical benefits
related to his work injury.

2

was no contemporaneous medical evidence showing that appellant was unable to perform the
modified mail handler position he returned to on June 2, 1993.
In a June 9, 2006 statement, appellant requested reconsideration of his claim and alleged
that he sustained a recurrence of disability because the modified mail handler position required
him to perform duties which were outside his work restrictions. He claimed that between
June 1993 and June 1995, Joe Bilger, his supervisor, was aware of his light-duty restrictions but
required him to perform tasks that were not in his job description and which were beyond his
physical work restrictions. Appellant asserted that Mr. Bilger ordered him to pick mail and
sleeves off the floor, lift mail trays weighing up to 35 pounds, stack the trays in general purpose
containers and push general purpose containers weighing up to 500 pounds distances of more
than 100 feet at a time. He claimed that, everyday between June 1993 and June 1995, Mr. Bilger
made him pull mail trays weighing up to 35 pounds off mail sorting machines, a task which
required lifting while bending and stack these trays in over the road containers to heights of
almost six feet. Appellant asserted that he had to push over the road containers, which weighed
up to 1000 pounds, for distances of more than 75 feet at a time. He claimed that Mr. Bilger
made him sort mail sacks weighing up to 40 pounds, load them onto dollies and push the dollies,
which weighed up to 500 pounds, for distances as long as a city block. Appellant claimed that
three or four days per week he had to load pallets with mail trays and sleeves to heights of four
feet and push the pallets, which weighed up to 750 pounds, for distances as long as a city block.3
In a July 13, 2006 letter, the Office requested that the employing establishment reply,
within 20 days, to the arguments contained in appellant’s June 9, 2006 statement. In a July 19,
2006 letter, an injury compensation specialist stated: “upon review of the decision of the
[d]istrict [O]ffice and the subject case file, the [a]gency concurs with the [d]istrict [O]ffice and is
in full support of their decision. The [a]gency concurrence is based on the fact that it has
received no new additional evidence, medical or otherwise, relevant and material to the issue in
question.”
In a decision dated September 8, 2006, the Office affirmed its July 15, 2006 decision.
The Office rejected appellant’s assertion that he sustained a recurrence of disability because his
modified mail handler position required him to perform work outside his work restrictions. The
Office made note of the July 19, 2006 letter of the employing establishment and acknowledged
that the employing establishment had not responded to appellant’s specific claims regarding his
work duties. It noted that Dr. Dorsett did not seem to be aware of appellant’s claim that he had
to perform work outside his work restrictions and asserted that there was no medical report of
record which showed that he could not perform the modified mail handler position, either on a
part-time or full-time basis.

3

Appellant also resubmitted an October 27, 1994 report in which Dr. Dorsett discussed his medical condition and
indicated that he should pursue light-duty work pending medical retirement.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 When an employee,
who is disabled from the job she held when injured on account of employment-related residuals,
returns to a light-duty position or the medical evidence of record establishes that he can perform
the light-duty position, the employee has the burden to establish by the weight of the reliable,
probative and substantial evidence a recurrence of total disability and show that he cannot perform
such light duty. As part of this burden the employee must show a change in the nature and extent
of the injury-related condition or a change in the nature and extent of the light-duty job
requirements.6
It is well established that proceedings under the Act are not adversarial in nature and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.7
ANALYSIS
The Office accepted that appellant sustained a neck neuropathy (pinched nerve) in 1990
and appellant began working in light-duty positions for the employing establishment. On June 2,
1993 he began working as a modified mail handler for the employing establishment. The
position involved removing labels from letter trays and three-pound cardboard sleeves and
stacking the trays and sleeves with assistance from coworkers when stacking above shoulder
height. The physical duties of the position required intermittent lifting for four to six hours per
day of no more than 20 pounds (with no lifting for more than two hours at a time), intermittent
simple grasping for four to six hours per day (with no grasping for more than two hours at a
time), intermittent sitting for four to six hours per day, walking for up to one hour per day,
intermittent sitting for four to six hours per day and intermittent standing for four to six hours per
day.8
Appellant claimed that he sustained an employment-related recurrence of disability on
and after March 11, 1995. After the Office initially denied his claim on July 15, 2005, he
submitted a June 9, 2006 statement in which he alleged that he sustained a recurrence of
4

5 U.S.C. §§ 8101-8193.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

7

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

8

Dr. Dorsett, an attending Board-certified neurologist, indicated in May 1993 that appellant could perform the

job.

4

disability because he was required to perform tasks which were outside the work restrictions of
his modified mail handler position. Appellant claimed that he was required to lift mail trays
weighing up to 35 pounds and mail sacks weighing up to 40 pounds, stack mail trays and sleeves
in containers to heights of up to 6 feet and push mail containers weighing up to 1000 pounds for
long distances. The Office requested that the employing establishment respond to appellant’s
June 9, 2006 statement, but the employing establishment merely indicated in a July 19, 2006
letter that it agreed with the Office’s July 15, 2006 decision. In a September 8, 2006 decision,
the Office affirmed its July 15, 2005 decision. It acknowledged that the employing
establishment had not responded to appellant’s specific claims regarding the duties of the
modified mail handler position.
The Board finds that the case should be remanded to the Office for further development
of the factual evidence as the Office did not adequately consider appellant’s claim that he
sustained disability because he was required to perform duties beyond his work restrictions. As
noted above, a change in the nature and extent of light-duty job requirements may serve as a basis
for establishing an employment-related recurrence of disability.9 Appellant submitted a June 9,
2006 statement in which he made a number of specific claims that the duties of the modified mail
handler position had been changed such that he was required to work outside his work restrictions.
The employing establishment did not respond to these specific allegations10 and the Office, as part
of its responsibility in the development of the evidence, had an obligation to make further
attempts to obtain such a response.11
The Board finds that on remand the Office should make further attempts to have the
employing establishment respond to appellant’s specific claims, as articulated in his June 9, 2006
statement, that he was required to work outside his work restrictions while performing the
modified mail handler position. After such development its deems necessary, the Office should
issue an appropriate decision regarding appellant’s claim that he sustained an employment-related
recurrence of disability on or after March 11, 1995.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an employment-related recurrence of disability on or after March 11, 1995. The case
will be remanded to the Office for further development of the evidence in accordance with this
decision of the Board.

9

See supra note 6 and accompanying text.

10

The employing establishment indicated that it agreed with the basis of the Office’s July 15, 2005 decision, but
appellant had not made the specific allegations contained in his June 9, 2006 statement at the time the July 15, 2005
decision was issued.
11

See supra note 7 and accompanying text.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 8, 2006 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: July 6, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Susanville, CA,
Employer
__________________________________________

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)
)
)
)
)
)
)
)

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

Docket No. 07-2250
Issued: June 13, 2008

Case Submitted on the Record

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

JURISDICTION
On September 4, 2007 appellant filed a timely appeal from a July 11, 2007 decision of
the Office of Workers’ Compensation Programs’ hearing representative finding an overpayment
of compensation in the amount of $26,172.24. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $26,172.24 for the period November 29, 2004 to August 5, 2006 because he received
compensation benefits for wage loss while working; (2) whether the Office properly determined
that appellant was not entitled to waiver of the recovery of the overpayment; and (3) whether the
Office properly required repayment of the overpayment by deducting $250.00 every four weeks
from his continuing compensation.

FACTUAL HISTORY
On January 17, 2002 appellant, then a 37-year-old horse wrangler leader, sustained injury
to his right shoulder and leg when he was bucked off a horse.1 The Office accepted the claim for
right shoulder contusion, fractured right femur/medial condyle with partial anterior cruciate
ligament (ACL) tear, lumbar sprain, lumbar disc displacement and authorized right ACL
reconstruction and patellar tendon allograft, which occurred on March 25, 2002. A right rotator
cuff surgery was performed on April 30, 2002. Appellant stopped work on January 17, 2002 and
returned to modified work on July 1, 2002. On January 16, 2003 he had surgery for right knee
arthroscopy and partial medial meniscectomy. Subsequently, the Office authorized L5-S1
decompression fusion with autograft surgery, which was performed on March 26, 2003 and
accepted lumbar radiculopathy, spondylolisthesis and L5-S1 with moderate compression of
bilateral L5 nerve roots. Appellant returned to light-duty work on June 1, 2003 work following
his back surgery.2
On October 2, 2002 appellant filed a traumatic injury claim alleging that on October 1,
2002 he injured his right knee while stepping off of a hay bale on a feed wagon.3 The Office
accepted the claim for a right knee injury.
On October 21, 2004 appellant elected to receive compensation benefits under the
Federal Employees’ Compensation Act in lieu of benefits provided by the Office of Personnel
Management.4 The Office placed appellant on the periodic rolls in receipt of temporary total
disability effective November 28, 2004.
On November 28, 2005 a vocational rehabilitation counselor reported that appellant had
been working for the state of Montana since November 29, 2004 as a livestock inspector earning
$9.50 per hour.
On August 10, 2006 appellant completed an August 1, 2006 EN1032 form covering the
prior 15 months. He indicated that he had been working as a brand inspector since
November 29, 2004 earning $9.50 per hour.
On August 23, 2006 the Office issued a loss of wage-earning capacity decision based on
appellant’s ability to earn wages as a brand inspector. The Office reduced his compensation to
$466.88 per week.

1

This was assigned claim number 132045347.

2

The Office issued schedule awards for an 18 percent permanent impairment of the right upper extremity on
July 21, 2003 and a 5 percent permanent impairment of the left lower extremity on October 4, 2004.
3

This was assigned claim number 132063435. On May 13, 2003 the Office combined claim number 132045347,
with claim number 132063435, with claim number 132045347 as the master claim number. On December 4, 2003
the Office issued a schedule award for a six percent permanent impairment of the right lower extremity.
4

Appellant was separated from the employing establishment effective September 23, 2004. On December 7,
2004 appellant informed the Office that he had relocated to Montana.

2

On January 26, 2007 the Office made a preliminary determination that appellant received
an overpayment in the amount of $26,162.24, during the period November 29, 2004 to August 5,
2006 because he received compensation benefits for total disability while earning wages as a
brand inspector. In an attached memorandum to file, it determined that appellant had been paid
$54,556.25 when he was only entitled to $28,384.01, resulting in an overpayment of $26,172.24.
The Office found appellant to be with fault in the creation of the overpayment as he should have
known that he was not entitled to receipt of compensations for total disability when he was
earning wages. Appellant was advised that he could request a telephone conference, a final
decision based on the written evidence only or a hearing within 30 days if he disagreed that the
overpayment occurred, with the amount of the overpayment or if he believed that recovery of the
overpayment should be waived. He completed the overpayment recovery questionnaire on
February 18, 2007. Appellant reported total monthly income of $3,581.10. He itemized about
$3,228.64 in monthly expenses. Appellant listed assets of $720.00, cash on hand, savings
account balance and checking account. At the May 25, 2007 prerecoupment hearing, an Office
hearing representative reviewed the overpayment recovery questionnaire with appellant.
Subsequent to the hearing appellant submitted documentation of his expenses regarding credit
and utility expenses.
By decision dated July 11, 2007, the hearing representative found that appellant received
an overpayment in the amount of $26,172.24 during the period November 29, 2004 to August 5,
2006 because he was earning wages as brand inspector while receiving compensation benefits
for total disability. He determined that appellant was without fault in the creation of the
overpayment as appellant did not fully understand that compensation benefits under the Act are
offset by actual earnings and he had complied with the Office reporting requirements. The
Office hearing representative denied waiver of the recovery of the overpayment as appellant did
not need all of his current income to meet monthly expenses. He disallowed appellant’s claimed
monthly expenses of $64.00 for satellite television and $89.00 for internet service as not ordinary
and necessary expenses. The hearing representative also disallowed appellant’s monthly
wireless telephone expense of $111.00 as not an ordinary and necessary expense, but found the
home telephone monthly expense of $68.00 was acceptable as an ordinary and necessary
expense. He also disallowed $296.00 for Visa expenses as there was no supporting
documentation and disallowed $200.00 for other expenses as “expenses for no more than two
motor vehicles may be considered ordinary and necessary.” The hearing representative then
reduced appellant’s monthly expense of $3,066.00 by $760.00 to find an allowable total monthly
expense of $2,306.00. Next, he found that appellant’s income totaled $3,694.00, which left
excess income in the amount of $1,388.00. The hearing representative directed recovery of the
overpayment by deducting $250.00 per month from appellant’s continuing compensation
benefits.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act5 provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty. Section 8106(a) provides in pertinent part
as noted:
“If the disability is partial, the Unites States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of the
difference between his monthly pay and his monthly wage-earning capacity after
the beginning of the partial disability, which is known as his basic compensation
for partial disability.”6
The Act further provides that an employee who is receiving compensation for an
employment injury may not receive wages for the same time period.7 Section 8129(a) of the Act
provides that, when an overpayment has been made to an employee because of an error of fact or
law, adjustment shall be made by decreasing later payments to which he is entitled.8
In determining whether a claimant is entitled to compensation benefits, the Office is
required by statute and regulation to make findings of fact.9 Office procedure further specifies
that a final decision of the Office must include findings of fact and provide clear reasoning which
allows the claimant to understand the precise defect of the claim and the kind of evidence which
would tend to overcome it.10 These requirements are supported by Board precedent.11
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $26,172.24, during the period November 29,
2004 to August 5, 2006. The record shows that appellant received an overpayment during the
period in question because he received wage-loss compensation for total disability after returning
to full-time work on November 29, 2004. The Office calculated the $26,172.24 overpayment by
totaling the amount of temporary total disability compensation appellant received for the period
November 29, 2004 to August 5, 2006, $54,556.25 and subtracting the amount of compensation
5

5 U.S.C. §§ 8101-8193, 8102(a).

6

5 U.S.C. § 8106(a).

7

5 U.S.C. § 8116(a).

8

5 U.S.C. § 8129(a)

9

5 U.S.C. § 8124(a) provides: The Office shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the Office
shall contain findings of fact and a statement of reasons.
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (March 1997). See
also Paul M. Colosi, 56 ECAB 294 (2005).
11

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

4

to which he was entitled, $28,384.01, for an overpayment of $26,172.24. The Office properly
found that appellant received an overpayment of compensation in the stated amount during this
period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act12 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.13 Waiver of an overpayment is not permitted unless the claimant is without
fault in creating the overpayment.14
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.15
ANALYSIS -- ISSUE 2
The Office found that appellant was without fault in the creation of the overpayment.
However, waiver of the recovery of the overpayment was not warranted. In determining that
appellant was not entitled to a waiver of the overpayment, the Office reviewed his income,
expenses and assets as listed in his February 18, 2007 OWCP-20 form. The overpayment
questionnaire indicates that he had a monthly income of $3,581.10.
The hearing representative disallowed the following expenses because appellant failed to
explain how they were ordinary and necessary. These expenses include $64.00 for satellite
television; $111.00 for wireless service $89.00 for internet service; and $200.00 for expenses for
two additional motor vehicles. The hearing representative also disallowed a $296.00 Visa
expense as appellant had not provided supporting documentation.16 The Board finds the Office
properly disallowed these expenses as it is appellant’s burden of proof to establish that the
expenses are ordinary and necessary.17
The Board finds that it was reasonable for the Office to allow ordinary and necessary
living expenses of $2,831.24. Appellant’s income of $3,694.00 per month exceeded his
12

5 U.S.C. § 8129.

13

5 U.S.C. § 8129(b). See Terry A. Keister, 56 ECAB 559 (2005).

14

Tammy Craven, 57 ECAB 689 (2006).

15

20 C.F.R. § 10.433(a).

16

20 C.F.R. § 10.437(b).

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Action, Chapter
6.200.6(a)(3) (May 2004).

5

allowable monthly expenses of $2,306.00 by $1,388.00 per month. Even if the Board included
the $760.00 of expenses disallowed by the hearing representative, this would still result in
appellant’s monthly income exceeding his monthly expenses, but by the lower amount of
$628.00. Therefore, appellant does not qualify for waiver of the recovery of the overpayment
under the defeat the purpose of the Act standard.18
Further, there is no evidence in this case and appellant did not allege, that he relinquished
a valuable right or changed his position for the worse in reliance on the excess compensation he
received for the period November 29, 2004 to August 5, 2006. Pursuant to its regulations, the
Office, therefore, properly found that recovery of the overpayment would not be against equity
or good conscience.
The evidence fails to support that recovery of the overpayment would defeat the purpose
of the Act or be against equity and good conscience. The Board finds that the Office did not
abuse its discretion in denying a waiver of recovery of the overpayment of $26,172.24.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 provides that, if an overpayment of compensation has been made to an
individual entitled to further payments and no refund is made, the Office shall decrease later
payments of compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other relevant factors, so
as to minimize hardship.19
ANALYSIS -- ISSUE 3
After determining that appellant was not entitled to waiver, the Office found that he could
repay the overpayment by withholding $500.00 every 28 days from his continuing compensation.
The record indicates that, after $250.00 is added to his ordinary and necessary monthly expenses,
his current monthly income still exceeds expenses by more than $50.00. The Board finds that
the Office gave due regard to appellant’s financial circumstances and did not abuse its discretion
in determining the rate of repayment in this case in finding that repayment of the overpayment
could be accomplished by withholding $250.00 every 28 days from appellant’s compensation.
CONCLUSION
The Board finds that appellant received a $26,172.24 overpayment of compensation. The
Board further finds that the Office properly denied waiver. It also finds that the Office properly
directed recovery of the overpayment by deducting $250.00 from appellant’s continuing
compensation.

18

See George A. Rodriguez, 57 ECAB 224 (2005) (Office procedures state that an individual is deemed to need
substantially all of his or her income to meet current ordinary and necessary living expenses if monthly income does
not exceed monthly expenses by more than $50.00); Nina D. Newborn, 47 ECAB 132 (1995).
19

20 C.F.R. § 10.441.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2007 is affirmed.
Issued: June 13, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7