United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0023
Issued: June 4, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 11, 2016 appellant, through counsel, filed a timely appeal from an April 13,
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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective May 6, 2014, as he no longer suffered residuals
or disability due to his work-related injury; and (2) whether appellant has established that he
continued to suffer residuals or disability due to his work-related injury after May 6, 2014.
FACTUAL HISTORY
On February 13, 1994 appellant, then a 46-year-old revenue officer, filed an occupational
disease claim (Form CA-2) alleging that he suffered from heart problems as a result of extreme
stress from his employment. He first became aware of his condition on April 19, 1990 and realized
it resulted from his employment on January 2, 1994. Appellant did not stop work.
Appellant received medical treatment from Dr. Stephen A. Malone, Board-certified in
internal medicine and cardiovascular disease. In a March 7, 1994 report, Dr. Malone indicated
that appellant had been under his care since July 17, 1992 for complex coronary artery disease.
He noted that appellant had a history of hypercholesterolemia and past myocardial infarctions in
1990 and 1992. Dr. Malone discussed the various medical treatments appellant received, including
several heart surgeries. He diagnosed severe multivessel coronary disease. Dr. Malone opined
that the mental stress placed on appellant by his occupation was in part responsible for his
significant coronary disease. He noted that appellant would be best served by a much less stressful
lifestyle and occupation. Dr. Malone reported that appellant may require coronary bypass surgery
in the not too distant future.
On July 21, 1994 appellant stopped work and underwent coronary bypass surgery. He
returned to work in September 1994. On January 1, 1995 appellant stopped work again.
OWCP accepted appellant’s claim for aggravation of coronary heart disease. It paid wageloss compensation on the periodic rolls, effective March 27, 1995.
On May 2, 1995 OWCP referred appellant for vocational rehabilitation in order to
determine appellant’s work restrictions and assist him in his return to work. On August 19, 1998
a vocational rehabilitation counselor determined that due to appellant’s medical restrictions it was
not feasible for rehabilitation to continue or for him to return to work. Appellant’s rehabilitation
case was closed effective August 18, 1998.
Appellant continued to receive medical treatment from Dr. Malone and underwent
hospitalizations for his coronary heart condition. On November 29, 2004 appellant underwent left
heart catheterization with left ventriculography coronary and graft arteriography. He underwent
another left heart catheterization on August 4, 2005.
On June 8, 2007 OWCP again referred appellant for vocational rehabilitation. On
August 1, 2008 an OWCP vocational rehabilitation counselor closed appellant’s rehabilitation case
because further medical development was necessary to determine appellant’s work restrictions.
Dr. Malone submitted periodic medical reports. He indicated that appellant underwent a
left heart catheterization and was hospitalized in January 2009.
2

In an October 21, 2013 examination record, Dr. Malone indicated that he had been treating
appellant for hyperlipidemia and coronary artery disease. He noted that appellant’s treadmill test
in February was reassuring and that appellant had been free of chest discomfort and dyspnea.
Dr. Malone reviewed appellant’s history and provided physical examination findings. He
recommended that appellant continue present medications and undergo a treadmill test in three
months to reevaluate his coronary artery disease.
On February 20, 2014 OWCP referred appellant, along with the statement of accepted facts
(SOAF) dated September 2008, and the case record, to Dr. Daniel Gottlieb, Board-certified in
internal medicine, interventional cardiology, and cardiovascular disease, for a second opinion
examination to determine whether appellant continued to suffer residuals and remained disabled
from work due to his accepted aggravation of preexisting coronary artery disease.
In a March 18, 2014 report, Dr. Gottlieb indicated that he reviewed the September 2008
SOAF and discussed appellant’s extensive history of coronary artery disease. He noted that
appellant had heart attacks in 1990, 1992, and 1994 and had been hospitalized several times due
to his coronary problems. Dr. Gottlieb reviewed appellant’s medical records and discussed that a
recent stress test, electrocardiogram, and blood work were normal. He related that appellant’s
current symptoms included fatigue. Upon physical examination, Dr. Gottlieb reported no
murmurs, no peripheral edema, no jugular vein distention, and no bruits. He pointed out that
appellant’s recent treadmill tests had shown excellent exercise capacity. Dr. Gottlieb further noted
that objective evidence showed no evidence for significant ischemia or congestive heart failure.
He opined that at this time appellant was doing well from a cardiac point of view and was
asymptomatic. Dr. Gottlieb diagnosed hyperlipidemia, negative heart failure, status post
myocardial infarction, status post coronary artery bypass graft, and status post stents.
3

Dr. Gottlieb reported that appellant had a long history of hyperlipidemia and a strong
family of history of heart disease with a very extensive cardiovascular history, although fairly
minimal records were available to him. He opined that any aggravation of appellant’s preexisting
coronary disease had resolved. Dr. Gottlieb reported:
“The aggravation of the examinee’s coronary disease led to an acute coronary
syndrome which led to the uncovering of examinee’s previously unknown coronary
disease and led to examinee’s revascularization.
[Appellant] has been
revascularized multiple times; the last of which was in 2004. In the past ten years,
he has required no cardiac intervention. [Appellant’s] cardiac condition is stable.”

3
This SOAF related that OWCP had accepted appellant’s claim for aggravation of his preexisting coronary artery
disease. It also related that appellant had a myocardial infarction in April 1990. During his hospitalization for this
infarction appellant also had a blood clot, which was dissolved. He had a second myocardial infarction in July 1992.
Appellant thereafter underwent angioplasty. His third myocardial infarction occurred in January 1994, he again
underwent angioplasty and had a stent placed. Appellant underwent a double by-pass surgery on July 21, 1994. He
underwent left heart catherization with left ventriculography and coronary graft arteriography on November 21, 1995.
On January 3, 2002 appellant underwent stent placement in the mid-circumflex. Another left cardiac catherization
with left ventriculography, coronary arteriography and graft arteriography was performed on April 2, 2002. On
June 11, 2003 and November 29, 2004 appellant underwent left heart catherization with left ventriculography,
coronary artery graft arteriography and cutting balloon dilation, with drug-eluting stent placement.

3

Dr. Gottlieb indicated that appellant’s accepted aggravation of coronary artery disease
resolved at the time of appellant’s bypass surgery in 1994. He explained that there was an eightyear gap during which time appellant required no further intervention. Dr. Gottlieb concluded that
appellant did not have any physical limitations from a cardiac point of view and was capable of
performing his date-of-injury job without limitations. In a work capacity evaluation form, he
indicated that appellant was capable of returning to work without limitations.
On April 1, 2014 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because the medical evidence of record established that appellant no longer had
any residuals of his accepted employment injury and was able to return to work. It found that the
weight of medical evidence rested with the March 18, 2014 second opinion report of Dr. Gottlieb,
who found that appellant’s work-related heart condition had ceased and that he was no longer
disabled as a result of his employment injury. Appellant was afforded 30 days to submit additional
evidence or argument, in writing, if he disagreed with the proposed termination.
In an April 4, 2014 letter, Dr. Malone related that appellant had been under his care for
chronic ischemic heart disease since 1990 shortly after his first myocardial infarction. He noted
that appellant subsequently underwent a three-vessel coronary bypass surgery and multiple
coronary stent placements. Dr. Malone reported that appellant’s right coronary artery was
chronically occluded and that only part of the vessel was grafted. He indicated that he last
examined appellant on October 21, 2013 and observed that appellant’s chest pains and angina had
been controlled due to medications and life style changes which minimized stress. Dr. Malone
reported that appellant had a history of recurrent chest pain when subjected to mental or emotional
stress, particularly in the work setting. He noted that an attempt to reenter the work force in
January 2009 led to chest pains and required repeated heart catheterizations. Dr. Malone opined
that appellant was not employable at the age of 66 with his history of recurrent chest pain in the
work environment.
By decision dated May 5, 2014, OWCP finalized the termination of appellant’s wage-loss
compensation and medical benefits. It noted that Dr. Malone’s letter was insufficient to alter the
proposed termination of appellant’s entitlement to wage-loss compensation and medical benefits
because he did not attribute appellant’s condition to appellant’s employment. OWCP determined
that the weight of medical evidence rested with Dr. Gottlieb’s March 18, 2014 second opinion
report.
Appellant requested a telephone hearing before an OWCP hearing representative by form
dated May 12, 2014, received by OWCP on May 15, 2014. A hearing was held on
December 3, 2014. Appellant described the various medical treatments he received for his cardiac
artery condition, including procedures and surgeries. He indicated that Dr. Malone, his treating
physician, wanted him to avoid mental or emotional stress, particularly in the work setting because
appellant still had an occluded right coronary artery. Appellant noted that he still had coronary
heart disease and experienced episodes, which felt like an elephant standing in the middle of his
chest. Counsel reviewed Dr. Malone’s April 4, 2014 letter, in which he opined that appellant was
not employable due to his history of recurrent chest pains in the work environment and his age.
She asserted that the previous claims examiner was not aware of appellant’s participation in

4

vocational rehabilitation in 2007 or appellant’s attempt to return to work in 2009.4 Counsel
contended that she did not think that Dr. Gottlieb was aware of appellant’s entire history as it was
not included in the SOAF. She noted that Dr. Gottlieb indicated that appellant had no cardiac
problems since 2004 even though appellant had several recatheterizations. Counsel also reported
that Dr. Gottlieb admitted that he had “minimal records to rely on.” She argued that Dr. Gottlieb’s
medical opinion was not based on a complete background and as such the report should therefore
be discounted or, in the alternative, appellant’s case should be referred to an impartial medical
examiner due to a conflict in medical opinion.
In a letter dated December 15, 2014, counsel asserted that OWCP did not meet its burden
to justify termination of appellant’s wage-loss compensation and medical benefits. She asserted
that because Dr. Gottlieb was provided with a SOAF dated September 10, 2008 his opinion was
based on an incomplete history and should not carry any weight. Counsel noted that the SOAF
did not include several medical procedures that appellant underwent from 2001 to 2014. She also
noted that Dr. Gottlieb noted that he reviewed “fairly minimal records.” Counsel further asserted
that OWCP erroneously determined that Dr. Malone’s April 4, 2014 letter was based on an
inaccurate history because Dr. Malone mentioned a 2009 employment incident. She contended
that because the weight of evidence failed to establish that appellant no longer suffered residuals
of his accepted work-related condition and remained disabled, OWCP should not terminate his
compensation benefits.
By decision dated February 3, 2015, an OWCP hearing representative affirmed the May 5,
2014 termination decision. He determined that OWCP properly accorded the weight of medical
evidence to Dr. Gottlieb, the second opinion examiner who based his opinion on an accurate
history of injury and examination findings, and met its burden to justify termination of appellant’s
wage-loss compensation and medical benefits. The hearing representative reported that
Dr. Gottlieb relied on a proper SOAF, which contained an accurate description of appellant’s
employment factors and his accepted condition. He noted that, although Dr. Malone opined that
appellant still suffered from coronary artery disease, he did not differentiate whether appellant’s
current symptoms were related to his preexisting heart condition or the work-related aggravation
of coronary artery disease.
On January 26, 2016 OWCP received appellant’s request, through counsel, for
reconsideration. In a letter dated January 18, 2016, counsel asserted that appellant still suffered
residuals of his accepted condition that prevented him from working. She contended that
Dr. Gottlieb’s second opinion report was based on limited record review and an incomplete SOAF,
and accordingly, should not carry any weight. Counsel noted that the 2008 SOAF that Dr. Gottlieb
relied on failed to mention that appellant had two stents in 2001 and heart catheterizations in 2005,
2009, and 2014. She further asserted that appellant’s condition had worsened since the March 18,
2014 second opinion report. Counsel indicated that a new medical report by Dr. MacGregor
showed that appellant began suffering premature ventricular contractions (PVC). She contended
that Dr. Malone, who had treated appellant since 1990, was the only physician who had a full and
complete history of appellant’s accepted condition. Counsel alleged that, if Dr. Gottlieb’s report
4
The record does not contain evidence that appellant returned to work in 2009. On January 12, 2010 appellant
signed a Form EN1032 in which he reported that he had not worked during the previous 15 months.

5

was not completely disregarded, the claim should be referred to an impartial medical examiner due
to a conflict in medical opinion regarding the nature of appellant’s work-related injury.
On January 26, 2016 OWCP received an April 23, 2015 letter from Dr. Malone.
Dr. Malone noted that he had treated appellant since 1994. He indicated that he had reviewed
appellant’s medical records and provided a brief history of the progression of appellant’s coronary
artery disease. Dr. Malone reported that since appellant stopped work, his angina had dramatically
improved and his coronary artery disease had stabilized based on treadmill testing and coronary
arteriography. He related that appellant’s heart condition stabilized only after removal from his
previous stressful work situation. Dr. Malone noted that appellant’s present diagnosis was
“coronary artery disease with previous coronary artery bypass surgery presently ‘angina-free.” He
opined that appellant’s anginas would return and progress if appellant returned to a stressful work
situation. Dr. Malone explained that his opinion on the rapid progression of appellant’s coronary
artery disease on cardiac catheterizations from 1990 to 1994 while working at the employing
establishment and the lack of progression of appellant’s coronary artery disease on heart
catheterizations the last 10 years while not working. Appellant also resubmitted Dr. Malone’s
April 4, 2014 letter and various progress notes dated September 10 to December 4, 2015.
Appellant submitted a letter dated December 16, 2015 by Dr. John F. MacGregor, Boardcertified in clinical cardiac electrophysiology. He noted that appellant was initially referred to him
in October 2015 by Dr. Malone, and he observed that appellant’s coronary anatomy was stable.
Dr. MacGregor indicated that subsequent to his consultation on October 21, 2015 appellant had
developed increasingly problematic shortness of breath, felt more fatigued, had abnormal PVCs
on electrocardiogram (EKG) tracings, and suffered a drop in his ejection fraction to 43 percent in
a follow-up stress test. He reported that stressors such as stimulants, exercise, and other physical
or psychological stress (including that imposed by certain working conditions) could definitely
exacerbate high blood pressure, ischemic heart disease, and arrhythmias, such as what appellant
was now suffering from. Dr. MacGregor opined that because he was not acquainted with the
specifics of appellant’s work conditions, he could not elaborate on how appellant’s aggravation
while working had caused a permanent aggravation of his coronary artery condition. He opined
that appellant’s chronic condition (ischemic heart disease) had been permanently aggravated.
Dr. MacGregor noted that appellant’s ventricular function was suffering and appellant had high
frequency PVCs. He included blood test laboratory results and diagnostic test results dated
September 16 and October 15, 2015.
By decision dated April 13, 2016, OWCP denied modification of its February 3, 2015
decision. It found that the weight of medical evidence rested with Dr. Gottlieb, the second opinion
examiner, who opined in a March 18, 2014 report that appellant’s accepted aggravation of
coronary artery disease condition had ceased. OWCP determined that the medical evidence
submitted with appellant’s reconsideration request did not provide a reasoned medical opinion
explaining how appellant still experienced residuals of his accepted employment injury.

6

LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the burden
of justifying termination or modification of an employee’s benefits.5 OWCP may not terminate
compensation without establishing that the disability had ceased or that it was 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 compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.9
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.10 This is called a referee examination
and OWCP will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.
ANALYSIS
OWCP accepted appellant’s claim for aggravation of coronary artery disease. Appellant
stopped work in January 1995 and was placed on the periodic rolls. In a March 18, 2014, report,
Dr. Gottlieb concluded that there were no objective medical findings to support that appellant’s
work-related aggravation of coronary artery disease was currently active. OWCP determined that
Dr. Gottlieb’s opinion constituted the weight of the evidence and thereafter terminated appellant’s
entitlement to wage-loss compensation and medical benefits.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits because a conflict in the medical opinion evidence

5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB
541 (1986).
7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
9

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., Docket No. 08-1822
(issued August 5, 2009).
10

P.C., Docket No. 16-1714 (issued October 18, 2017).

7

had been created between Dr. Malone and Dr. Gottlieb, regarding whether appellant’s accepted
employment injury had resolved.
In a March 18, 2014 report, Dr. Gottlieb indicated that he reviewed the September 2008
SOAF dated and discussed appellant’s history of coronary artery disease. He noted that appellant
had heart attacks in 1990, 1992, and 1994 and had been hospitalized several times due to his
coronary problems. Dr. Gottlieb reviewed appellant’s medical records and discussed that a recent
stress test, electrocardiogram, and blood work were normal. He related that appellant’s current
symptoms included fatigue. Upon physical examination, Dr. Gottlieb reported no murmurs, no
peripheral edema, no jugular vein distention, and no bruits. He noted that appellant’s recent
treadmill tests had shown an excellent exercise capacity. Dr. Gottlieb further noted that objective
evidence showed no evidence for significant ischemia or congestive heart failure. He opined that,
appellant was doing well from a cardiac point of view and was asymptomatic. Dr. Gottlieb
diagnosed hyperlipidemia, negative heart failure, status post myocardial infarction, status post
coronary artery bypass graft, and status post stents. He reported that appellant had a long history
of hyperlipidemia and a strong family of history of heart disease with a very extensive
cardiovascular history, although fairly minimal records were available to him. Dr. Gottlieb opined
that any aggravation of appellant’s preexisting coronary disease had resolved. In a work capacity
evaluation form, he indicated that appellant was capable of returning to work without limitations.
In contradistinction, appellant’s treating physician, Dr. Malone opined that the mental
stress placed on appellant by his occupation was in part responsible for his significant coronary
disease. He noted that appellant underwent three-vessel coronary bypass surgery and multiple
coronary stent placements. Dr. Malone reported that appellant’s right coronary artery was
chronically occluded and that only part of the vessel was grafted. He reported that appellant had
a history of recurrent chest pain when subjected to mental or emotional stress, particularly in the
work setting. Dr. Malone opined that appellant was not employable at the age of 66 with his
history of recurrent chest pain in the work environment.
Appellant’s treating physician and OWCP’s second opinion physician disagreed regarding
his ability to return to his full-duty position and his need for ongoing medical treatment. As such,
the Board finds that a conflict of medical opinion exists relative to these issues. OWCP should
have resolved the conflict of medical opinion evidence before terminating compensation. As
OWCP failed to resolve the conflicting medical opinion evidence, the Board finds that it failed to
meet its burden of proof to terminate appellant’s wage-loss compensation and medical benefits.11
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits.

11

In light of the Board’s disposition in Issue 1, Issue 2 is moot and will not be addressed in this appeal.

8

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.12
Issued: June 4, 2018
Washington, DC

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

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

12
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Decatur, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-2055
Issued: March 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from a September 4, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a prerecoupment
hearing.
FACTUAL HISTORY
OWCP accepted that on or before March 3, 2005 appellant, then a 50-year-old patient
guide, sustained bilateral carpal tunnel syndrome in the performance of duty. She underwent
1

5 U.S.C. § 8101 et seq.

right carpal tunnel release on April 3, 2008 and left carpal tunnel and trigger thumb release on
July 3, 2008. Following a period of work absence, appellant retired from the employing
establishment effective October 14, 2008.
On April 23, 2009 appellant claimed a schedule award. By decision dated October 27,
2009, OWCP granted her a schedule award for a three percent impairment of the right upper
extremity and a two percent impairment of the left upper extremity. Following additional
development,2 it issued an augmented schedule award on January 19, 2011 for an additional two
percent impairment of the right arm and three percent impairment of the left arm, for a total five
percent impairment of each upper extremity. Pursuant to appellant’s February 6, 2012 claim for
an additional schedule award, OWCP issued a September 13, 2013 schedule award for an
additional one percent impairment of each arm, or a total of six percent for each arm.3
Appellant claimed an additional schedule award on October 9, 2013.4 On January 5,
2014 OWCP obtained a second opinion from Dr. Alexander Doman, a Board-certified
orthopedic surgeon, who found a two percent impairment of each upper extremity, less than the
six percent previously awarded.
By decision dated January 31, 2014, OWCP denied appellant’s claim for an additional
schedule award as the weight of the medical evidence established a two percent impairment of
each upper extremity, less than the six percent previously awarded.
In a February 12, 2014 manual adjustment worksheet, OWCP calculated that appellant
was paid $18,384.00 in compensation for a six percent impairment of each arm, whereas she was
only entitled to $5,958.20 for a two percent impairment of each arm, resulting in an overpayment
of $12,425.80.
By notice dated February 12, 2014, OWCP advised appellant of its preliminary
determination that a $12,425.80 overpayment of compensation was created in her case, as she
was compensated for a six percent impairment of each upper extremity whereas she was entitled
to compensation for only a two percent impairment of each arm. It found that she was not at
fault. OWCP advised appellant of her right to request a prerecoupment hearing within 30 days
of the date of the letter and the requirement to submit financial information for reconsideration of
waiver.
In response to the preliminary notice of overpayment, appellant submitted an
overpayment recovery questionnaire (Form OWCP-20) signed on March 11, 2014. OWCP
2

Appellant requested reconsideration on November 13, 2009, denied by decision dated December 1, 2009. He
again requested reconsideration on May 18, 2010, denied by July 14, 2010 decision. Pursuant to an October 6, 2010
request for reconsideration, OWCP issued a January 7, 2011 decision vacating its July 14, 2010 determination.
3

OWCP applied the $3,914.86 schedule award to a debt incurred under appellant’s claim in File No. xxxxxx972.

4

Appellant submitted her physician’s September 24, 2013 opinion finding a 30 percent impairment of the left arm
and a 20 percent impairment of the right arm due to grip strength weakness. An OWCP medical adviser opined that
there was no probative evidence establishing more than the six percent impairment awarded. By decision dated
October 11, 2013, OWCP denied an additional schedule award. In a November 16, 2013 letter, appellant requested
reconsideration.

2

received the form into the case record on March 20, 2014. Appellant asserted that there was no
overpayment as her physicians opined that she had more than six percent impairment of each
arm. The top right corner of the first page of the questionnaire is marked “Hearing Req.”
By decision dated March 17, 2014, OWCP finalized the preliminary finding of a
$12,425.80 overpayment of compensation. It found that, although appellant was without fault, it
could not consider waiver as she failed to submit financial information.
In a March 21, 2014 memorandum, OWCP noted that appellant’s “representative
requested a prerecoupment hearing. Therefore, the case will be suspended until a decision is
reached.” In April 15 and 22, 2014 letters, appellant’s attorney requested a telephonic hearing
regarding the March 17, 2014 final overpayment determination.
By decision dated March 24, 2014, OWCP vacated its March 17, 2014 decision, finding
that the case was not in posture for a decision as appellant had timely requested a prerecoupment
hearing. It placed her case under the jurisdiction of its Branch of Hearings and Review.
By decision dated September 4, 2014, an OWCP hearing representative denied
appellant’s request for a prerecoupment hearing as it was untimely. She found that appellant’s
request for a hearing was postmarked on April 15, 2014, more than 30 days after the issuance of
the February 12, 2014 preliminary notice of overpayment. The hearing representative returned
the case to OWCP “so that the preliminary overpayment finding can be finalized.”
LEGAL PRECEDENT
In response to a preliminary notice of overpayment, an individual may present evidence
to OWCP in writing or at a prerecoupment hearing.5 The hearing request must be sent within 30
days of the date of the written notice of overpayment, as evidenced by a postmark or other
carrier’s date marking.6 Failure to request the hearing within this 30-day time period shall
constitute a waiver of that right.7
The only review of a final decision concerning an overpayment is an appeal to the Board.
The provisions of 5 U.S.C. §§ 8124(b) and 8128(a) regarding hearings and reconsideration do
not apply to a final overpayment decision.8

5

20 C.F.R. § 10.432.

6

Id. at § 10.439 (provides that prerecoupment hearings shall be conducted in exactly the same manner as
provided in sections 10.615 through 10.622); id. at § 10.616(a) (provides that the hearing request must be sent
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought). See also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Preliminary and Final Decisions, Chapter 6.200.4.a(2) (June 2009).
7

Id. at § 10.432. See also S.B., Docket No. 14-1159 (issued October 1, 2014).

8

Id. at § 10.440(b).

3

ANALYSIS
The overpayment action request form that accompanied the February 12, 2014
preliminary determination was specific as to the 30-day time limitation and the method for
requesting a prerecoupment hearing.
Appellant submitted an overpayment recovery
questionnaire signed and dated March 11, 2014, with the notation “Hearing Req.” OWCP’s
March 21, 2014 memorandum acknowledged that appellant had requested a prerecoupment
hearing.
Appellant’s request for a prerecoupment hearing was dated March 11, 2014, within 30
days of the February 12, 2014 notice. OWCP regulations clearly specify that the hearing request
must be sent within 30 days of the date of the decision for which a hearing is sought. The 30-day
time period is determined by the request’s postmark or other carrier’s date of marking.9 The
regulations do not measure timeliness based on the date of receipt, but instead on the postmark.10
However, OWCP’s Branch of Hearings and Review did not retain the envelope or postmark that
would have verified timely mailing. The Board has held that, if there is no postmark of record,
other evidence of timeliness must be considered.11 Under these circumstances, the Board will
rely on the date appellant signed the form, March 11, 2014. The Board therefore finds that
appellant filed a timely request for a prerecoupment hearing, within 30 days of the February 12,
2014 preliminary notice of overpayment.12 Appellant is thus entitled to a prerecoupment
hearing.
Following appellant’s request, appellant’s attorney submitted April 15 and 22, 2014
letters requesting a hearing regarding the March 17, 2014 final overpayment determination later
vacated by OWCP’s Branch of Hearings and Review. In its September 4, 2014 decision, OWCP
construed the April 15, 2014 letter as an untimely request for a prerecoupment hearing, and
denied appellant’s hearing request on that basis.13 The Board finds that this was in error, as
appellant’s March 11, 2014 hearing request remained valid. The September 4, 2014 decision
must therefore be reversed, and the case remanded to OWCP’s Branch of Hearings and Review
to conduct a prerecoupment hearing as appellant requested. Following this and any other
development deemed necessary, OWCP will issue an appropriate decision in the case.
On appeal, appellant asserts that the March 11, 2014 questionnaire constituted a timely
request for a prerecoupment hearing. As stated above, the Board finds that her timely requested
a prerecoupment hearing and that the September 4, 2014 decision was in error. Appellant also
requests waiver of the overpayment as she is not at fault in its creation. She asserts that she is
unable to repay the overpaid compensation due to her poor health, her husband’s poor health,
9

Id. at § 10.616(a).

10

Id. See also S.E., Docket No. 11-1632 (issued April 12, 2012); T.W., Docket No. 11-732 (issued
November 29, 2011.)
11

S.E., id.; T.W., id.

12

Id.

13

Although OWCP stated that the request for the prerecoupment hearing was postmarked on April 15, 2014,
there is no copy of the postmarked envelope in the record before the Board.

4

and the resultant financial hardship. The Board notes that as there was no final decision
regarding the overpayment prior to appellant filing her appeal, the Board does not have
jurisdiction over the overpayment issue. The Board is therefore unable to address her argument
regarding waiver.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a prerecoupment
hearing as untimely. The case will be remanded to OWCP’s Branch of Hearings and Review to
conduct a prerecoupment hearing, to be followed by an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded to OWCP for appropriate
additional development.
Issued: March 17, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Port Angeles, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Docket No. 09-126
Issued: June 10, 2009

Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Oral Argument April 21, 2009

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

JURISDICTION
On October 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 22, 2008 nonmerit decision denying his request for merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). Because more than one year has elapsed between the Office’s last
merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of this claim.

FACTUAL HISTORY
This case was previously before the Board. By decision dated September 26, 2006, the
Board affirmed the Office’s March 24, 2006 decision denying appellant’s claim for wage-loss
compensation on or after July 21, 2002.2 The Board reviewed reports dated October 25, 2004
and July 28, 2005 from appellant’s treating physician, Dr. James G. Hopper. On October 25,
2004 Dr. Hopper indicated that he first examined appellant in December 2001 and that he had
experienced recurrent radicular, low back pain since 1992. He noted that appellant had presented
to the emergency room in July 2002 when he experienced pain, numbness and weakness in his
left leg. Dr. Hopper stated that appellant had undergone a lumbar laminectomy on July 31, 2002
with microdiscectomy and that further recurrences of weakness required a second laminectomy
operation in 2003. He indicated that appellant had some persisting numbness in the left leg and
opined that appellant was unable to perform the duties of a laborer, which included bending and
lifting heavy objects, and that performing these duties would exacerbate his condition. The
Board found that, as Dr. Hopper did not provide an opinion on appellant’s disability for work
during any specific period of time, his report was irrelevant to the issue at hand.
In a July 28, 2005 attending physician’s report, Dr. Hopper provided a diagnosis of
lumbar radiculopathy and opined that appellant had been totally disabled since July 2, 2002. He
stated that appellant had been hospitalized for his lumbar condition on July 31, 2002 and
discharged on August 2, 2002. Dr. Hopper indicated that appellant was permanently restricted
from working in a position which included bending, lifting, pushing or extended sitting or
standing. In its September 25, 2006 decision, the Board found that, as his opinion on appellant’s
disability was unsupported by objective medical evidence or medical reasoning, it was of
diminished probative value and insufficient to establish appellant’s total disability due to his
accepted employment condition. The Board noted that Dr. Hopper’s report also contained
inconsistencies, including the date of alleged disability, and the date he was discharged from the
hospital in August 2002.
In an order dated January 22, 2008, the Board granted appellant’s petition for
reconsideration but reaffirmed the September 25, 2006 decision.3 The facts and conclusions of
law contained in the Board’s decision and order are incorporated herein by reference.
On June 14, 2005 the Office accepted appellant’s February 4, 2005 occupational disease
claim for displaced lumbar invertebral disc. However, by decision dated March 24, 2006, it
denied appellant’s claim for wage-loss compensation commencing July 21, 2002 on the grounds
that he submitted insufficient medical evidence to establish disability due to his accepted
condition.
On August 15, 2008 appellant, through his representative, requested reconsideration
before the Office from the March 24, 2006 decision.

2

Docket No. 06-1354 (issued September 25, 2006).

3

Supra note 2.

2

Appellant submitted a November 14, 2006 report from Dr. Hopper, in which he
addressed errors and inconsistencies in previous reports. Dr. Hopper stated that he first
examined appellant on July 21, 2002, rather than on July 2, 2002, and that his disability
commenced on that date. He also indicated that appellant was discharged from the hospital on
August 1, 2002, rather than August 2, 2002. Dr. Hopper stated that, “when [appellant] was first
seen on July 26, 2002,” he was in severe pain due to lumbar radiculopathy and left lower
extremity weakness. After undergoing left decompression, appellant’s symptoms improved,
however, as he increased his activity, it became evident that degenerative changes throughout the
lumbar spine were causing recurrence of the radicular pain and weakness. Dr. Hopper stated:
“I have reviewed [appellant’s] job description and feel that throughout the time of his
injury through the time of my report. [Appellant] was totally disabled from his job of
injury. This is because any repeated bending or lifting, which comprised the essence of
his job [would] likely cause recurrent radicular pain, and possibly recurrent lumbar
stenosis.”
By decision dated September 22, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant further merit review.
It found that, though new, Dr. Hopper’s November 14, 2006 report was not relevant to the issue
before the Office.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.6 When a claimant fails to meet one of the above standards, the Office will deny the
application for reconsideration without reopening the case for review on the merits.7 The Board
has held that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.8 Further, evidence that repeats or duplicates

4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at 10.607(a).

7

Id. at 10.608(b).

8

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a claim for merit review.9
ANALYSIS
Appellant’s August 15, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted a November 14, 2006
medical report from Dr. Hopper, noting errors and inconsistencies in his previous reports,
including the date he first examined appellant and the date he was discharged from the hospital.
Dr. Hopper opined that appellant had been disabled from his date-of-injury job since his injury
occurred “because any repeated bending or lifting, which comprised the essence of his job
[would] likely cause recurrent radicular pain, and possibly recurrent lumbar stenosis.” The
Board finds that his report does not constitute new and relevant evidence not previously
considered by the Office. Rather, Dr. Hopper’s report is substantially similar to earlier reports
and merely reiterates information contained in documents previously received and reviewed by
the Office. The report is therefore cumulative and duplicative in nature and does not constitute
relevant new evidence.10 Dr. Hopper’s opinion that appellant was unable to perform the duties
of a laborer, because such activity would exacerbate his lumbar condition should he return to his
date-of-injury job, was expressed in both his October 25, 2004 and July 28, 2005 reports. His
reports reiterated his opinion regarding causal relationship and he provided no additional
rationale to support appellant’s claim for total disability during the period in question.11
On appeal, appellant’s representative argues that Dr. Hopper’s report constitutes new and
relevant evidence because it addresses errors and inconsistencies contained in previous reports.
However, the submission of evidence which corrects typographical errors or other matters of fact
does not automatically require approval of a request for merit review. Acceptance of such a
bright-line rule would authorize myriad merit reviews based on the submission of new, but
largely duplicative or irrelevant, evidence. In the instant case, the Board affirmed the Office’s
decision which found that appellant failed to meet his burden of proof to establish that he was
totally disabled for work due to his accepted employment condition. The correction of factual
9

Denis M. Dupor, 51 ECAB 482 (2000).

10

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, supra note 9.
11

Appellant’s representative contends that the facts of Kenneth R. Mroczkowski, 40 ECAB 855 (1989), require
reversal of the Office’s March 24, 2006 decision. In Mroczkowski, the Board found that an attending physician’s
report, which contained an unrationalized opinion on causal relationship, constituted new and relevant evidence,
because the physician had not submitted any other similar report and required the Office to conduct a merit review.
However, the facts of the instant case are distinguishable from Mroczkowski. In this case, Dr. Hopper’s
November 14, 2006 report contains information previously received and considered by the Office and is therefore
insufficient to require merit review.

4

and typographical inaccuracies does not cure the deficiencies in Dr. Hopper’s reports, which fail
to provide a rationalized opinion explaining how appellant was disabled during the period in
question.
An abuse of discretion can generally only be shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from known facts.12 Appellant has made no such showing here. The Board
finds that the Office properly determined that he was not entitled to a review of the merits of his
claim pursuant to section 10.606(b)(2) and properly denied his August 15, 2008 request for
reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2009
Washington, DC

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

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

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

12

Rebel L. Cantrell, 44 ECAB 660 (1993).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 13-71
Issued: March 20, 2013

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 October 10, 2012 appellant filed a timely appeal from the September 19, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s claim should be accepted for a cervical condition
causally related to his May 8, 2002 work injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on May 8, 2002 appellant, then a 44-year-old mail handler,
sustained a lumbar sprain due to moving mail from a dolly to a mail container. Appellant
stopped work on May 23, 2002 and received disability compensation through September 2002.2
In a May 3, 2011 letter to his congressman, appellant inquired why it was never accepted
that he sustained a cervical condition due to his May 8, 2002 work injury. The letter was
forwarded to OWCP. In a May 27, 2011 response, OWCP advised appellant that he should
submit additional medical evidence to support his claim that he sustained a cervical injury on
May 8, 2002.
Appellant submitted an August 5, 2002 report of Dr. Leonard Kaplan, an attending
osteopath, who stated that he reported sustaining a lifting injury at work on May 8, 2002.
Dr. Kaplan saw appellant on July 24, 2002 for cervical pain and headache, but that the conditions
were not connected at that time “to his work-related injury.” He diagnosed lumbar and cervical
segmental dysfunction at multiple levels and stated, “At this time I feel the causality of both his
neck and lumbar pain are related to his work injury on May 8, 2002.”3
In a report dated September 3, 2002, Dr. Kaplan stated that, despite the fact that magnetic
resonance imaging testing showed a mild, small cervical disc herniation at C5-6, appellant’s
symptoms and findings were primarily myofascial and he did not exhibit any radicular nerve
tension signs. He noted, “Therefore, it is difficult to say whether the disc herniation is job
related. However, the patient’s myofascial component, which would improve very quickly with
physical therapy and chiropractic care, was most likely related to his initial low back injury at the
job.”
In a brief note dated July 16, 2002, Dr. David Hartman, an attending Board-certified
internist, stated that appellant continued to report having pain and discomfort in his neck with a
throbbing bilateral headache radiating to the front. In a July 16, 2002 form report, he stated that
appellant reported developing pain in his back and neck due to sorting mail at work.
Dr. Hartman checked a “yes” box indicating that appellant’s condition was caused or aggravated
by the reported work activity.
In a December 16, 2005 report, Dr. Douglas B. Moreland, an attending Board-certified
neurosurgeon, noted that appellant reported that he had “neck pain since 2002” which radiated
into both shoulders. He diagnosed cervicalgia and cervical disc herniation at C5-6.
In a January 29, 2009 report, Dr. Gerald L. Peer, an attending Board-certified
anesthesiologist, stated that appellant reported of cervical problems, “Date of onset: May 14,
2002; first complaint of neck pain associated with [employing establishment] duties. Related to
2

OWCP accepted that appellant sustained other work injuries including bilateral shoulder strains and lumbar
strain on August 12, 1999 and lumbar strains on October 16, 2003 and October 24, 2004. These other work injuries
are not the subject of the present appeal.
3

The record contains a physical therapy note showing that appellant was treated for cervical problems on
April 29, 2002.

2

low back injury of May 8, 2002 by Dr. Kaplan.” Dr. Peer diagnosed intervertebral cervical disc
displacement at C5-6 without myelopathy. In a report dated October 19, 2010, Dr. Francis C.
Corrigan, an attending Board-certified anesthesiologist, diagnosed lumbar spondylosis, facet
syndrome, lumbar degenerative disc disease and cervical degenerative disc disease.
In an August 3, 2011 decision, OWCP denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to establish that his claim should be accepted for a
cervical condition causally related to his May 8, 2002 work injury.
Appellant requested a telephone hearing before an OWCP hearing representative. During
the November 15, 2011 hearing, he testified that he initially felt back pain at the time of his
May 8, 2002 work injury but also experienced cervical pain shortly thereafter. In a February 2,
2012 decision, OWCP’s hearing representative affirmed the August 3, 2011 decision.
In a February 21, 2012 letter, appellant requested reconsideration of his claim. He argued
that the medical evidence was sufficient to establish that he sustained a cervical condition due to
his May 8, 2002 work injury.4
In a September 19, 2012 decision, OWCP affirmed the February 2, 2012 decision, noting
that appellant had not submitted sufficient evidence to establish his cervical condition as causally
related to his May 8, 2002 work injury.5
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 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.6 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the compensable employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical

4

Appellant later submitted an August 21, 2012 letter to his congressman in which he discussed his claim of a
work-related cervical condition.
5

In its September 19, 2012 decision, OWCP provided a discussion of the standards to be applied when a
reconsideration request is untimely. In such a case, it performs a limited review of the case record and only opens
the case for merit review if clear evidence of error in its prior decision is shown. It is not clear why OWCP provided
this discussion as appellant’s reconsideration request was timely filed and other portions of the decision show that it
properly conducted a full merit review of appellant’s claim.
6

J.F., Docket No. 09-1061 (issued November 17, 2009).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
The Board has held that, when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, that opinion has little probative value and is insufficient to
establish causal relationship. Appellant’s burden includes the necessity of furnishing an
affirmative opinion from a physician who supports his conclusion with sound medical reasoning.8
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain at work on May 8, 2002 due to
moving mail from a dolly to a mail container. In May 2011, he claimed that he also sustained a
cervical injury that day. The Board finds that appellant did not submit sufficient medical
evidence to establish his cervical condition as causally related to his May 8, 2002 work injury.
Appellant submitted an August 5, 2002 report of Dr. Kaplan, an attending osteopath, who
stated that he reported sustaining a lifting injury at work in May 2002.9 Dr. Kaplan diagnosed
lumbar and cervical segmental dysfunction at multiple levels and stated, “At this time I feel the
causality of both his neck and lumbar pain are related to his work injury on May 8, 2002.” This
opinion on causal relationship is of diminished probative value as Dr. Kaplan did not provide a
specific cervical diagnosis or provide medical rationale addressing how any specific cervical
condition was caused or contributed to by the May 8, 2002 work injury. He did not provide a
full medical history or state whether appellant’s cervical condition was related to some nonworkrelated condition.10
In a report dated September 3, 2002, Dr. Kaplan stated that, despite the fact that magnetic
resonance imaging testing showed a mild, small cervical disc herniation at C5-6, appellant’s
symptoms and findings were primarily myofascial. He did not exhibit any radicular nerve
tension signs. Dr. Kaplan noted, “Therefore, it is difficult to say whether the disc herniation is
job related. However, the patient’s myofascial component, which would improve very quickly
with physical therapy and chiropractic care, was most likely related to his initial low back injury
at the job.” This report is of limited probative value on the issue of causal relation as it contains an
opinion on causal relationship which is equivocal in nature.11 Dr. Kaplan noted that he could not
say whether appellant’s cervical herniation was work related, but he also generally indicated,
without explanation, that appellant’s unspecified “myofascial component” was related to a work
injury. However, he did not explain the nature of this relationship.
7

See E.J., Docket No. 09-1481 (issued February 19, 2010).

8

Lillian M. Jones, 34 ECAB 379, 381 (1982).

9

Dr. Kaplan indicated that he saw appellant on July 24, 2002 for cervical pain and headache, but that these
conditions were not connected at that time “to his work-related injury.”
10

It should be noted that the record contains a physical therapy note showing that appellant was treated for
cervical problems on April 29, 2002.
11

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956) (finding that an
opinion which is equivocal is of limited probative value regarding the issue of causal relationship).

4

In a brief note dated July 16, 2002, Dr. Hartman stated that appellant reported having
pain and discomfort in his neck with a throbbing bilateral headache radiating to the front. In a
form report dated July 16, 2002, he stated that appellant reported developing pain in his back and
neck due to sorting mail at work. Dr. Hartman checked a “yes” box indicating that appellant’s
condition was caused or aggravated by the reported work activity. As he did no more than check
“yes” to a form question, his opinion on causal relationship is of diminished probative value. It is
insufficient to discharge appellant’s burden of proof.12 Dr. Hartman did not relate a clearly
diagnosed condition to work factors or provide medical rationale in support of his opinion.
In a December 16, 2005 report, Dr. Moreland, an attending Board-certified neurosurgeon,
indicated that appellant reported that he had “neck pain since 2002” which radiated into both
shoulders. He diagnosed cervicalgia and cervical disc herniation at C5-6, but he did not provide
any indication that this condition was due to the May 8, 2002 work injury. In a January 29, 2009
report, Dr. Peer, an attending Board-certified anesthesiologist, discussed appellant’s reporting of
cervical problems in mid-May 2002. He diagnosed intervertebral cervical disc displacement at
C5-6 without myelopathy, but he also did not provide any opinion on the cause of this
condition.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.14
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his claim
should be expanded to include a cervical condition as causally related to his May 8, 2002 work
injury.

12

See supra note 9.

13

In a report dated October 19, 2010, Dr. Corrigan, an attending Board-certified anesthesiologist, diagnosed
lumbar spondylosis, facet syndrome, lumbar degenerative disc disease and cervical degenerative disc disease.
However, he did not provide any opinion on the cause of appellant’s cervical condition. On appeal, appellant
suggested that he continued to have disability due to work injuries other than his May 8, 2002 injury, but these other
injuries are not the subject of the present appeal.
14

On appeal, appellant submitted new evidence. The Board may not consider new evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2013
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, HEADQUARTERS,
FIELD INFORMATION SYSTEMS
PROGRAMS, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-385
Issued: September 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 24, 2008 appellant, through his attorney, filed a timely appeal of the
November 5, 2008 nonmerit decision of the Office of Workers’ Compensation Programs denying
his request for a review of the written record. Because more than one year has elapsed between
the last merit decision issued on August 15, 2008 and the filing of the appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
written record under 5 U.S.C. § 8124.

FACTUAL HISTORY
This case has previously been before the Board. In an August 15, 2008 decision,1 the
Board affirmed the Office’s October 30, 2007 decision finding that appellant did not sustain a
recurrence of disability on June 5, 2003 causally related to his accepted January 3, 1994
employment-related injury.2
By letter dated August 18, 2008, appellant, through his attorney, requested a review of
the written record by an Office hearing representative. In a November 5, 2008 decision, the
Office’s Branch of Hearings and Review denied appellant’s request for a review of the written
record after finding that it did not have jurisdiction to review decisions of the Board. It further
reviewed appellant’s request and denied the review of the written record as it found that the issue
of whether he sustained a recurrence of disability on June 5, 2003 causally related to his accepted
January 3, 1994 employment injury could equally well be addressed by requesting
reconsideration and submitting new evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that a claimant
not satisfied with a decision of the Secretary is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his claim before a representative of the
Secretary.3 Sections 10.617 and 10.618 of the federal regulations implementing this section of
the Act provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.4 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Act and Board precedent.5 Although a
claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority with respect to granting a hearing and the Office must exercise such discretion.6
The Act provides the Office with original jurisdiction in the processing of compensation
claims and section 8124(a) provides the Office with the duty and authority to issue an initial
decision on an employee’s claim for compensation.7 Once an initial decision is made in a
1

Docket No. 08-659 (issued August 15, 2008).

2

On January 10, 1994 appellant, then a 42-year-old information systems specialist, filed a traumatic injury claim
alleging that he sustained right shoulder, buttocks, and back sprains on January 3, 1994 when he slipped on a wet
spot while exiting a building and landed in the revolving doors. The Office accepted his claim for right shoulder
strain, lumbar strain/sprain with left radiculopathy, thoracic, lumbosacral neuritis or radiculopathy and a single
episode of major depressive disorder.
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. §§ 10.616-17.

5

Claudio Vasquez, 52 ECAB 496 (2002).

6

See Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994); Herbert C. Holley, 35
ECAB 140 (1981).
7

5 U.S.C. § 8124(a).

2

compensation case, the claimant’s rights arise by which the claimant may seek further review of
his claim: the right to a hearing before the Office, the right to reconsideration before the Office
or an appeal to the Board. The Board has clarified that the Office does not have the discretionary
authority to grant a request for hearing immediately following a Board decision. The Office’s
Branch of Hearings and Review may not assume jurisdiction in the claims process absent a final
adverse decision by the Director. Following the Board’s review of an Office decision, there is no
final decision of the Office left unreviewed over which the Branch of Hearings and Review can
assume jurisdiction to exercise its discretionary appellate authority.8
ANALYSIS
Following the issuance of the Office’s October 30, 2007 decision finding that appellant
did not sustain a recurrence of disability on June 5, 2003 causally related to his accepted
January 3, 1994 employment injury, he exercised his appellate rights by requesting an appeal to
the Board. The Board reviewed the case and issued its final decision on this claim on August 15,
2008 in Docket No. 08-659. The Office did not subsequently issue a final decision. On
August 18, 2008 appellant requested a review of the written record by the Office’s Branch of
Hearings and Review. The Board has held that, following its review of an Office decision, a
claimant does not have the right under 5 U.S.C. § 8124(b)(1) to request a review of the written
record in the absence of a final Office decision.9 In the instant case, appellant had no right to
request a review of the written record following the issuance of the Board’s August 15, 2008
decision because there is no final decision of the Office left unreviewed over which the Office’s
Branch of Hearings and Review could assume jurisdiction to exercise its discretionary appellate
authority.10 Therefore, the Board finds that the Office properly denied appellant’s request for a
review of the written record on November 5, 2008.11
On appeal, appellant’s attorney contended that the Office erred in denying appellant’s
request for a review of the written record. He stated that the issue in this case was whether it
properly denied appellant’s continuing medical treatment on May 27, 2003 which was not
addressed by the Board in its August 18, 2008 decision. Counsel contended that the Office failed
to establish that appellant no longer had any residuals requiring medical treatment and total
disability causally related to his accepted January 3, 1994 employment injury. The Board
previously addressed the closing of appellant’s claim on May 27, 2003 in its August 18, 2008
decision. It stated that the Office closed appellant’s claim after paying for various medical
services from 1994 to 1997. The Board further stated that prior to closing the claim it did not
issue a decision denying any particular claimed benefit. The Board finds that appellant is
rearguing the merits of his recurrence of disability claim. As stated, the Board does not currently
8

Robert N. Thomas, 51 ECAB 180, 180-81 (1999).

9

Id.

10

Id. See also Eileen A. Nelson, 46 ECAB 377 (1994). The Branch of Hearings and Review stated in its
November 5, 2008 decision that it had exercised its discretion in denying the request for a review of the written
record. However, as discussed, it is not within the Office’s discretion to grant a review of the written record
immediately following a Board decision.
11

Robert N. Thomas, supra note 8.

3

have jurisdiction over the merits of appellant’s claim.12
appellant’s argument is without merit.13

The Board, therefore, finds that

CONCLUSION
The Board finds that the Office properly denied appellant’s request for a review of the
written record under 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

20 C.F.R. § 501.3(d)(2).

13

See Jennifer A. Guillary, 57 ECAB 485 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, CHIEF PERSONNEL
SERVICES, Tuskegee, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1653
Issued: March 26, 2013

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 July 20, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) overpayment decision dated March 2, 2012. 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 $5,776.24 overpayment of
compensation; (2) whether she was at fault in the creation of the overpayment and, therefore,
ineligible for waiver of recovery; and (3) whether OWCP properly found that the overpayment
should be recovered by deducting $200.00 monthly from appellant’s continuing compensation
payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 29, 1999 appellant, then a 41-year-old nursing assistant, sustained injury to her
abdomen and back when lifting a patient. She stopped work on January 2000 and retired as of
February 13, 2000. On July 12, 2001 OWCP accepted the claim for herniated nucleus pulposus
at L5-S1, lumbar annual tears and authorized a lumbar interbody fusion. On May 16, 2005 it
expanded the claim to include abdominal strain. On September 7, 2010 OWCP accepted
bilateral lumbosacral plexopathy and lumbosacral sprain.
On October 3, 2001 appellant filed claim for wage-loss compensation beginning
February 7, 2000. She initially claimed two dependents, including a son born on November 6,
1981 and a daughter born on October 22, 1986. The record reflects that appellant submitted
affidavits of earnings and employment (Form CA-1032) beginning October 23, 2001. The forms
explained the circumstances under which she would be entitled to augmented compensation for
her dependent children. Appellant was advised that compensation for a dependent child may
continue after the 18th birthday only if the dependent was unmarried and either incapable of selfsupport due to a mental or physical disability or a full-time student. The forms noted that
compensation was payable until age 23 for an unmarried child who had reached age 18, had not
completed four years of education beyond high school and was a full-time student at an approved
educational institution.
On November 15, 2004 appellant elected FECA benefits effective June 29, 2000. By
letter dated June 23, 2005, OWCP advised her regarding the conditions under which she would
be paid compensation. Appellant was informed that she would be compensated at the augmented
rate of 75 percent beginning February 20, 2005. The letter noted that she should immediately
advise OWCP of any change in the status of her dependents. The letter contained an enclosure,
Form EN1049, that provided instructions and noted that appellant should immediately advise
OWCP of any change in the status of any claimed dependents.
By letter dated April 16, 2009, OWCP again advised appellant that the circumstances
under which she would be entitled to augmented compensation for her dependent children.
On March 8, 2011 appellant signed a Form CA-1032 claiming her daughter as a
dependent whose birth date was on October 22, 1986.
By letter dated January 25, 2012, OWCP reiterated the circumstances under which
augmented compensation for a dependent child could continue after the 18th birthday.
On January 25, 2012 OWCP made preliminary findings that appellant received an
overpayment of compensation in the amount of $5,776.24 for the period October 22, 2009
through January 14, 2012 for which she was at fault in its creation. It found that she was aware
that a claimant who has one or more eligible dependents is paid compensation at the augmented
rate and must immediately report any change in the status of a claimed dependent. OWCP found
that appellant’s daughter reached age 23 on October 22, 2009 which rendered her ineligible as a
dependent. In an attached memorandum, it calculated that appellant received $54,196.00 in
compensation from September 27, 2009 to January 14, 2012 at the 75 percent augmented rate;
but she should have received compensation only to October 21, 2009 in the amount of $1,561.61

2

at the augmented rate. From October 22, 2009 to January 14, 2012, appellant should have
received compensation at the 66 2/3 percent statutory rate in the amount of $46,858.15. It added
compensation for the period September 27, 2009 to January 14, 2012 as $1,561.62 plus
$46,858.15 to total $48,419.76. OWCP subtracted this amount from the $54,196.00 received
during that period to total an overpayment of $5,776.24. Although it was in error for continuing
to issue checks for disability at the 75 percent rate after appellant advised that she was no longer
claiming a dependent, this fact did not excuse her acceptance of checks which she knew or
should have known to be incorrect. Appellant was informed of her options if she wished to
contest the fact or amount of overpayment or request a waiver of recovery and was provided with
an overpayment recovery questionnaire (Form OWCP-20).
Appellant did not respond to OWCP’s January 25, 2012 preliminary determination to
contest her overpayment and did not submit a Form OWCP-20.
By decision dated March 2, 2012, OWCP finalized the overpayment determination in the
amount of $5,776.24 for the period October 22, 2009 through January 14, 2012 because
appellant had no eligible dependent. It found that she was at fault in the creation of the
overpayment. OWCP determined that a repayment of the overpayment at $200.00 from
continuing compensation was reasonable and appropriate.
LEGAL PRECEDENT-- ISSUE 1
Section 8102 of FECA2 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.3 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled.4
The basic rate of compensation paid under FECA is 66 2/3 percent of the injured
employee’s monthly pay.5 Under section 8110 of FECA, an employee is entitled to
compensation at the augmented rate of three-fourths of her weekly pay if she has one or more
eligible dependents. Section 8110(a)(3) of FECA provides that a child is considered a dependent
if he or she is under 18 years of age, is over 18 but, is unmarried and incapable of self-support
because of a physical or mental disability, or is an unmarried student under 23 years of age who
has not completed four years of education beyond the high school level and is currently pursuing
a full-time course of study at a qualifying college, university or training program at an accredited
institution.6 If a claimant receives augmented compensation during a period where she has no
eligible dependents, the difference between the compensation she was entitled to receive at the

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8105(a); see also Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

6

Id. at §§ 8110(a)(1) and 8101(17); 20 C.F.R. § 10.405.

3

two-thirds compensation rate and the augmented compensation received at the three-fourths rate
constitutes an overpayment of compensation.7
ANALYSIS -- ISSUE 1
Appellant’s daughter was born on October 22, 1986, was claimed as a dependent and
OWCP paid-wage-loss compensation at the augmented rate of 75 percent. Although she reached
the age of 18 on October 22, 2004 and graduated high school on May 26, 2005, appellant
asserted that her daughter was an eligible dependent because she was registered as a full-time
college student. Appellant received compensation at the augmented rate after her daughter
turned 23 years old on October 22, 2009. The record contains no evidence that she was disabled
due to a mental or physical condition. Appellant’s daughter qualified as a dependent as long as
she was an unmarried student attending an approved full-time course of study, had not completed
four years of post high school education and had not completed the academic semester in which
she became 23 years old.8
The Board finds that, when appellant’s daughter turned 23 years of age on October 22,
2009, she was no longer an eligible dependent and appellant was not entitled to compensation at
the augmented rate of 75 percent from October 22, 2009 through January 14, 2012.9 OWCP
reduced appellant’s compensation to the two-thirds rate effective January 15, 2012. It paid her
$54,196.00 in compensation from September 27, 2009 to January 14, 2012 at 75 percent.
Appellant should have been paid compensation at 75 percent from September 27 to October 21,
2009 in the amount of $1,561.61. From October 22, 2009 to January 14, 2012, she should have
been paid compensation at the 66 2/3 percent basic rate in the amount of $46,858.15. OWCP
determined the amount of overpayment from September 27, 2009 to January 14, 2012 as
$1,561.62 plus $46,858.15 to total $48,419.76. This amount was subtracted from $54,196.00 to
total an overpayment of $5,776.24. Thus, the Board finds that OWCP’s calculation of a
$5,776.24 overpayment was correct. Accordingly, OWCP properly determined the fact and
amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA10 provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.11 Thus, OWCP may not waive the overpayment of compensation

7

Id. at § 8110(a)(3); see Ralph P. Beachum, Sr., supra note 5.

8

Id.

9

Id.; see also W.M., Docket No. 11-2000 (issued May 21, 2012).

10

5 U.S.C. § 8129(b).

11

Michael H. Wacks, 45 ECAB 791, 795 (1994).

4

unless appellant was without fault.12 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.13
On the issue of fault, section 10.433 of OWCP’s regulations provide 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.”14
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide in relevant part:
“Whether or not [OWCP] determines that an individual was at fault with respect
to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”15
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment based on the
third criterion, that she accepted payments which she knew or should have known to be
incorrect.16
For OWCP to establish that appellant was at fault in creating the overpayment, it must
establish that, when she received the compensation in question, she knew or should have known
that the payment was incorrect.17 With respect to whether an individual is with fault, section
10.433(b) of OWCP regulations provide that whether OWCP determines that an individual was
with fault with respect to the receipt of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the complexity of
those circumstances and the individual’s capacity to realize that he or she was being overpaid.18

12

Norman F. Bligh, 41 ECAB 230 (1989).

13

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

14

20 C.F.R. § 10.433(a).

15

Id. at § 10.433(b); Diana L. Booth, supra note 13.

16

Steven R. Cofrancesco, 57 ECAB 62 (2006).

17

See J.D., Docket No. 10-640 (issued December 17, 2010); Otha J. Brown, 56 ECAB 228 (2004); Karen K.
Dixon, 56 ECAB 145 (2004).
18

20 C.F.R. § 10.433(b).

5

The Board finds that appellant was at fault in creating the overpayment. The CA-1032
forms provided extensive information notifying her as to the status of dependents for augmented
compensation. Appellant was advised as to the requirements for claiming a child as a dependent
and informed that a claimant with no dependents was paid at the 66 2/3 percent basic rate, not
the 75 percent augmented rate. When initially placed on compensation, she received the
augmented rate as her daughter was under the age of 18. Appellant continued to claim and
receive augmented compensation as her daughter was registered as a full-time student after the
age of 18. On October 22, 2009 her daughter turned 23 years of age. On March 8, 2011
appellant signed a Form CA-1032 claiming her daughter, as a dependent, who was 24 years of
age at the time. The Board notes that there is no evidence to support that her daughter was
unable to support herself because of a mental or physical disability. The record establishes that
appellant knew or should have known that the payments made at the augmented rates were
incorrect in view of the cautionary language in the CA-1032 forms that she signed. She is at
fault in creating the overpayment and is not eligible for waiver of recover. OWCP is required by
law to recover the overpayment.
Appellant contends on appeal that she has claimed her daughter as a dependent since she
began receiving wage-loss compensation. She stated that due to medication for pain she cannot
remember things and that OWCP had records that established when her daughter turned 23 years
of age and should have reduced her benefits at that time.19 The fact that OWCP may have been
negligent in issuing an overpayment does not mitigate the finding of fault in this case.20
Appellant signed and filed multiple CA-1032 form affidavits prior to her daughter reaching 23
years of age which detailed her eligibility to receive compensation benefits for a dependent. She
certified as to the dependent status of her daughter and was issued compensation in an amount
she was not entitled to receive.
Appellant stated that recovery of the overpayment would pose a severe financial
hardship. Since she was at fault in the creation of the overpayment, she is not eligible for a
waiver of recovery.21
LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information

19

As noted above, appellant submitted additional evidence after OWCP rendered its March 2, 2012 decision and
the Board is precluded from reviewing this evidence for the first time on appeal.19
20

E.V., 59 ECAB 258 (2007).

21

Supra note 17.

6

about income, expenses and assets as specified by OWCP. This information will be used to
determine the repayment schedule, if necessary.22
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to the same. If no refund is made, OWCP
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly directed recovery of the overpayment at the rate of
$200.00 from each continuing compensation payment.
Regarding the recovery of $5,776.24 from appellant’s continuing compensation, the
Board notes that she did not provide any financial information which would assist OWCP in
determining the amount to deduct from future compensation payments in order to recoup the
overpayment. OWCP set the rate of recovery as $200.00 from each continuing compensation
payment until the benefit was paid in full. The Board finds that this was reasonable in the
absence of any financial documentation proving otherwise.24
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation during the period of October 22, 2009 through January 14, 2012 in the amount
of $5,776.24. The Board further finds that OWCP properly determined that she was at fault in
creating the overpayments and, therefore, ineligible for waiver. The Board also finds that
OWCP properly directed recovery of the $5,776.24 overpayment at the rate of $200.00 every
four weeks from appellant’s continuing compensation payments.

22

20 C.F.R. § 10.438.

23

Id. at § 10.441(a).

24

On appeal, appellant submitted a listing of her current bills. As the Board’s review is limited to evidence in the
case record at the time OWCP made its decision over which the Board has jurisdiction, the Board cannot review this
evidence submitted for the first time on appeal. D.E., Docket No. 07-27 (issued April 6, 2007); 20 C.F.R.
§ 501.2(c).

7

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2013
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

8