United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 20-0524
Issued: October 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 6, 2020 appellant filed a timely appeal from a December 19, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $6,934.82 during the period August 1, 2016
1
The Board notes that, following the December 19, 2019 decision, the Board and OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

through October 12, 2019, for which she was without fault, as she concurrently received Social
Security Administration (SSA) age-related retirement benefits and FECA wage-loss compensation
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$470.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On August 10, 1987 appellant, then a 49-year-old procurement clerk (typing), filed an
occupational disease claim (Form CA-2) alleging that she developed low back pain due to factors
of her federal employment. 4 She noted that she first became aware of her condition on June 12,
1985 and realized its relation to her federal employment on April 15, 1987. Appellant did not stop
work. On September 20, 1989 OWCP accepted her claim for aggravation of bulging disc L3-S1.
It paid appellant’s wage-loss compensation on the supplemental rolls through March 9, 1989 and
then on the periodic rolls beginning April 7, 1991.
A notification of personnel action (Form SF-50) from the employing establishment
indicated that appellant’s retirement coverage was under the Federal Employees Retirement
System (FERS).
On August 16, 2019 OWCP forwarded SSA a FERS/SSA dual benefits calculation
worksheet to determine whether an offset of compensation benefits was required.
On October 7, 2019 OWCP received SSA’s completed FERS/SSA dual benefits
calculation worksheet dated October 2, 2019, wherein SSA listed appellant’s SSA age-related
retirement benefit rates with and without a FERS offset as follows: beginning August 2016 the
monthly SSA rate with FERS was $1,147.10 and without FERS was $970.90; beginning
December 1, 2016 appellant’s SSA rate with FERS was $1,150.50, and without FERS was
$973.80; beginning December 1, 2017 appellant’s SSA rate with FERS was $1,173.50, and
without FERS was $993.20; and beginning December 1, 2018 appellant’s SSA rate with FERS
was $1,206.30 and without FERS was $1,021.00.
On October 21, 2019 OWCP notified appellant that FECA requires that her continuing
compensation benefits be reduced by that portion of SSA retirement benefits attributable to her
federal service.
OWCP completed a FERS offset overpayment calculation form on November 8, 2019. It
determined the overpayment amount by multiplying the FERS offset amount by the number of
3

Docket No. 08-0128 (issued June 4, 2008); Docket No. 92-2117 (issued December 21, 1993).

4

The case record indicates that a ppellant received disability benefits from SSA from November 1988 through
July 2016.

2

days in each period August 1, 2016 through October 21, 2019. OWCP found that: from August 1
through November 30, 2016, appellant received an overpayment of compensation in the amount
of $708.67; from December 1, 2016 through November 30, 2017 appellant received an
overpayment of compensation in the amount of $2,126.23; from December 1, 2017 through
November 30, 2018 appellant received an overpayment of compensation in the amount of
$2,169.54; and from December 1, 2018 through October 21, 2019 appellant received an
overpayment of compensation in the amount of $1,930.38. This resulted in a total overpayment
in the amount of $6,934.82.
On November 8, 2019 OWCP made a preliminary overpayment determination, finding that
appellant had received an overpayment of compensation in the amount of $6,9 34.82, for which
she was without fault, because her wage-loss compensation benefits for the period August 1, 2016
through October 12, 2019 that had not been reduced to offset her SSA age-related retirement
benefits attributable to federal service. It further advised her of its preliminary determination that
she was without fault in the creation of the overpayment. OWCP requested that appellant complete
the enclosed overpayment recovery questionnaire (Form OWCP-20) and provide supporting
financial documentation including copies of income tax returns, bank account statements, bills,
pay slips, and any other records to support income and expenses. Additionally, OWCP notified
appellant that, within 30 days of the date of the letter, she could request a final decision based on
the written record or a prerecoupment hearing.
On December 2, 2019 OWCP received an undated Form OWCP-20. Appellant advised
that she had none of the incorrectly paid checks or payments in her possession. She did not
otherwise complete the form. Appellant provided a copy of her 2018 federal income tax re turn.
By decision dated December 19, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $6,934.82 for the period
August 1, 2016 through October 12, 2019. It further found that she was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment, because the Form
OWCP-20 was incomplete. OWCP required recovery of the overpayment by deducting $470.00
from appellant’s continuing compensation payments beginning January 5, 2019.
LEGAL PRECEDENT
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 5 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

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attributable to the employee’s federal service. 7 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received a $6,934.82
overpayment during the period August 1, 2016 through October 12, 2019 because she concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits, without an
appropriate offset.
In its December 19, 2019 decision, OWCP found that an overpayment of compensation
was created for the period August 1, 2016 through October 12, 2019. The overpayment
determination was based on the evidence received from SSA with respect to age -related retirement
benefits paid to appellant. A claimant cannot receive both FECA compensation for wage loss and
SSA age-related retirement benefits attributable to federal service for the same period. 9 The
information provided by SSA indicated that appellant received SSA age-related retirement benefits
that were attributable to federal service during the period August 1, 2016 through
October 12, 2019. Consequently, the fact of overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to appellant’s specific SSA age-related retirement benefit
rates that were attributable to her federal service. SSA provided her age-related retirement benefit
rates with FERS, and without FERS for specific periods commencing August 1, 2016 through
October 12, 2019. OWCP provided its overpayment calculations for each relevant period based
on SSA’s FERS offset calculation worksheet in its November 8, 2019 preliminary overpayment
determination.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period August 1, 2016 through October 12, 2019 and finds that it properly determined an
overpayment of compensation in the amount of $6,934.82 was created. 10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
7

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

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

9

5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).
10

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

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recovery would defeat the purpose of FECA or would be against equity and good conscience. 11
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.12
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from who m OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 13 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 14
Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. 15
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.

11

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

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

13

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

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

20 C.F.R. § 10.437(a)(b).

16

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

17

Id. at § 10.438(b).

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As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience. 18 Appellant, however, did not provide a fully completed Form OWCP-20 or provide
supporting financial documentation to OWCP.19
In its preliminary determination dated November 8, 2019, OWCP advised appellant that it
would deny waiver of recovery if she failed to furnish the requested financial information within
30 days. Appellant did not submit a fully completed Form OWCP-20, nor did she provide
supporting financial documentation. As a result, OWCP did not have the necessary financial
information to determine whether waiver of recovery of the overpayment would defeat the purpose
of FECA or would be against equity and good conscience. 20 The Board thus finds that OWCP
properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship. 21
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$470.00 every 28 days from appellant’s continuing compensation payments.
The record supports that, in requiring recovery of the overpayment by deducting $470.00
from appellant’s compensation payments every 28 days, OWCP took into consideration the factors
set forth in section 10.441 and found that this method of recovery would minimize any resulting
hardship on appellant. Appellant failed to provide sufficient information regarding her income,
expenses, and assets, and OWCP followed minimum collection guidelines by requiring
installments large enough to collect the full debt promptly. Therefore, OWCP properly required

18

Id. at § 10.436.

19

Id. at § 10.438(b); D.M., Docket No. 20-0694 (issued December 31, 2020); M.D., Docket No. 19-1500 (issued
February 24, 2020); T.J., Docket No. 19-1242 (issued January 13, 2020).
20

D.M., id.; E.M., Docket No. 19-0857 (issued December 31, 2019).

21

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

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recovery of the overpayment by deducting $400.00 from her continuing compensation payments
every 28 days. 22
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$6,934.82 during the period August 1, 2016 through October 12, 2019, for which she was without
fault, as she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly required recovery of the overpayment by deducting
$470.00 every 28 days from her continuing compensation payments.

22

Supra note 13 at Chapter 6.500.8(c)(1) (September 2018); see also K.C., Docket No. 21-0430 (issued
August 13, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the December 19, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH TEXAS HEALTH CLINIC SYSTEM,
Dallas, TX, Employer
__________________________________________

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

Docket No. 09-923
Issued: January 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 25, 2009 appellant, through her attorney, filed a timely appeal from the
June 13, 2008 and January 9, 2009 merit decisions of the Office of Workers’ Compensation
Programs denying her recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
September 3, 2007 causally related to her May 25, 2007 injury.
FACTUAL HISTORY
On January 23, 2008 appellant, then a 40-year-old medical support assistant, filed a claim
alleging injury to her back on May 25, 2007 when she attempted to sit on a chair and slipped,
falling to the floor on her buttocks. She did not stop work. The record indicates that, on May 29,
2007, appellant was treated at the employing establishment health unit and lumbosacral x-rays

were obtained. The staff radiologist interpreted the studies as normal with no evidence of
fracture or dislocation and normal vertebral spacing and alignment. Appellant subsequently
stopped work on September 3, 2007.1 By letter dated March 12, 2008, the Office accepted her
claim for brachial, thoracic and lumbosacral neuritis and radiculitis.
On March 13, 2008 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period commencing September 3, 2007. In disability certificates dated September 10, 17 and
October 29, 2007, Dr. Pierre Herding, a Board-certified neurologist, stated that appellant
experienced neck and shoulder pain. He indicated that she was totally disabled from
September 10 to November 5, 2007. In disability certificates dated November 5 and 19, 2007,
Dr. Herding noted that it was undetermined when appellant could return to work.
The record reflects that appellant came under the treatment of Dr. Ronnie D. Shade, a
Board-certified orthopedic surgeon. On January 17, 2008 Dr. Shade obtained a magnetic
imaging resonance (MRI) scan of the lumbar spine that revealed a small central disc extrusion at
L5-S1 with a possible minimal compression on the bilateral S1 nerve root. His treatment records
advised that appellant sustained a lumbar disc extrusion at L5-S1 and chronic lumbar strain with
bilateral lower extremity radiculopathy. Dr. Shade stated that she was totally disabled for work.
He recommended that the Office accept appellant’s claim for lumbar disc extrusion at L5-S1.
Appellant was referred by Dr. Shade to Dr. Stephen J. Becker, Board-certified in physical
medicine and rehabilitation. In a February 8, 2008 report, Dr. Becker noted that appellant had “a
long history of both upper and lower extremity symptoms of pain and radiating numbness. This
subsequently worsened after falling to her buttocks on May 25, 2007 from a rolling chair.”
Dr. Becker advised that appellant complained of cervical pain radiating into her left upper
extremity and lumbar pain radiating into both lower extremities. He reviewed electrodiagnostic
testing of the left upper and lower extremities, finding cervical and lumbar radiculopathy.
In a letter dated May 7, 2008, the Office addressed the factual and medical evidence
appellant needed to submit to establish her recurrence of disability claim. In a May 8, 2008
response, appellant stated that she worked following the May 25, 2007 employment injury but
was unable to continue working by September 2007. She submitted a September 6, 2007
treatment note from the employing establishment health clinic that listed treatment for cervical
and shoulder pain.
In an April 21, 2008 report, Jesse C. Ingram, Ph.D., a clinical psychologist, reviewed a
history of appellant’s May 25, 2007 injury and medical treatment. After listing his findings on
psychological examination, he diagnosed pain disorder associated with both psychological
factors and chronic general medical condition on Axis I, severe depressive disorder on Axis II,
lumbar disc extrusion at L5-S1 and chronic lumbar strain with bilateral lower extremity
radiculopathy on Axis III, severe family and employment stressors on Axis IV and a global
assessment functioning (GAF) score of 48 on Axis V.

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The Office denied appellant’s claim for continuation of pay, noting that her claim was not filed within 30 days
of the date of injury.

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In an April 18, 2008 report, Dr. Aaron T. Lloyd, a Board-certified anesthesiologist,
reviewed the history of injury and medical treatment. On examination, he noted essentially
normal findings with significant spasm of the lumbar paraspinal muscles, limited extension
secondary to spasm and pain radiating down the legs with forward flexion and on positive
straight leg raising. An MRI scan of the cervical spine revealed a C5-6 disc protrusion. An MRI
scan of the lumbar spine showed a two millimeter disc herniation at L5-S1. Electromyogram and
nerve conduction velocity studies (EMG/NCV) were consistent with C6 and L5 radiculitis.
Dr. Lloyd opined that appellant sustained a work-related injury with radicular symptoms. On
May 12, 2008 appellant underwent a lumbar epidural steroid injection at L5-S1 under
fluoroscopy.
A May 13, 2008 report from Michele Steffek, a physician’s assistant, addressed
appellant’s accepted employment-related conditions. She stated that Cymbalta was medically
necessary for the treatment of pain.
In a May 27, 2008 report, Dr. Leeroy McCurley, a family practitioner, stated that
appellant’s back, neck and ankle pain were treated with medication and physical therapy.
By decision dated June 13, 2008, the Office denied appellant’s recurrence of disability
claim. It found that the medical evidence was insufficient to establish that she was totally
disabled commencing September 3, 2007 due to her May 25, 2007 injury.
In a July 11, 2008 letter, appellant, through counsel, requested a telephonic hearing
before an Office hearing representative. She submitted a May 23, 2008 report from Dr. Lloyd
who noted that her employment-related conditions had not significantly improved following
epidural steroid injection. Dr. Lloyd reiterated that appellant had lumbar and cervical herniated
discs. On June 25, 2008 he stated that appellant underwent a left nerve root block at C6-7. In a
November 11, 2008 letter, Dr. Lloyd stated that, at the time of his last examination on July 16,
2008, appellant had definitive findings of disc protrusion and right C6 radiculopathy.
On July 9, 2008 Dr. Shade reviewed appellant’s medical treatment. On physical
examination he noted spasms in the left trapezial and parascapular region secondary to the
June 25, 2008 injection. Dr. Shade advised that, since the injection, appellant was unable to
return to work and was totally disabled until further evaluation. His subsequent treatment
records reiterated that she remained totally disabled. Dr. Shade diagnosed appellant as having
carpal and cubital tunnel syndrome, enthesopathy of the elbow, impingement syndrome, shoulder
tendinitis, myofasciitis -- para scapula, medial and lateral meniscus tear, chondromalacia of the
patella, Achilles tendinitis, ankle sprain/strain and joint pain with arthralgia.
A July 9, 2008 report from Gwen Brown, a registered nurse, noted that appellant had a
history of cervical and lumbar disc herniation with radicular symptoms. In a December 3, 2008
report, Ms. Brown stated that appellant suffered from worsening left upper extremity pain,
numbness and weakness with known cervical disc herniation.
In a July 18, 2008 report, Dr. Ingram advised that appellant could not work through at
least September 15, 2008 due to her participation in a pain management program. In subsequent
reports he restated his diagnoses and addressed her pain management treatment. On August 21,

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2008 Dr. Ingram noted that appellant experienced decreased pain coping skills and sleep
disturbance, increased chronic pain, anxiety and severe depression related to her injury and
family stressors. This disabled her from work.
In a July 22, 2008 report, Dr. Charles E. Willis, II, a Board-certified anesthesiologist,
provided essentially normal findings on physical examination with decreased range of motion of
the cervical and lumbar spines, decreased sensation in the left upper and lower extremities and
decreased motor function of the left upper extremity. He diagnosed chronic neck and low back
pain, cervical disc displacement and radiculopathy and lumbar radiculopathy. On August 12,
2008 Dr. Willis related that appellant had poor tolerance to certain pain medications.
In reports dated July 21 to August 21, 2008, Dr. Santiago, a chiropractor, stated that
appellant was not physically active due to persistent pain. Appellant made some progress since
participating in a pain management program.
In a December 3, 2008 report, Dr. Herding stated that appellant experienced persistent
left upper extremity pain of unknown etiology.
In a December 15, 2008 report, Dr. Ronald J. Washington, a Board-certified internist,
reviewed the history of appellant’s May 25, 2007 employment injury and medical treatment.
Appellant complained of pain in her neck, shoulders, right arm and ankle. Dr. Washington
diagnosed cervical/lumbar injuries and left shoulder enthesopathy with disability due to painful
impairment in strength, endurance and flexibility. He opined that she was totally disabled.
During a November 3, 2008 telephonic hearing, appellant testified that following her
injury on May 25, 2007 she returned to regular work duty on May 28, 2007. She was off work
intermittently in July and August 2007 due to pain she experienced while working. On
August 21, 2007 appellant was sent home by a physician’s assistant at the employing
establishment health unit.
By decision dated January 9, 2009, an Office hearing representative affirmed the June 13,
2008 decision. He found that the medical evidence was insufficient to establish that appellant’s
disability commencing September 3, 2007 was due to her accepted injury.
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.2
2

20 C.F.R. § 10.5(x).

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A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.3 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.4 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.5 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
ANALYSIS
The Office accepted that appellant sustained brachial, thoracic and lumbosacral neuritis
and radiculitis in the May 25, 2007 injury. She returned to her regular duties as of
May 28, 2007. Appellant subsequently stopped work on September 3, 2007 and claimed total
disability for work due to her accepted claim. The Board finds that she failed to submit
sufficient medical evidence to establish that her disability commencing that date is attributable to
her accepted conditions.
The Board notes that appellant did not stop work contemporaneous to the May 25, 2007
injury. The evidence reflects that she worked at her regular duties until she stopped work on
September 3, 2007. The medical evidence of record lacks a well-reasoned medical report from
any of appellant’s attending physicians addressing how her disability for work is due to the
accepted injury. Such medical explanation is crucial to her claim, as the medical evidence
reflects that she had a “long history” of upper and lower extremity complaints preexisting the
3

Kenneth R. Love, 50 ECAB 193, 199 (1998).

4

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

5

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

6

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

7

See Ricky S. Storms, supra note 5; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
9

See Ricky S. Storms, supra note 5; Morris Scanlon, 11 ECAB 384, 385 (1960).

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injury at work. This is an aspect of her case that has not been adequately addressed in the
records submitted.
Dr. Herding submitted disability certificates dated September 10 to November 19, 2007,
noting that appellant had neck and shoulder pain and was totally disabled. On December 3, 2008
he noted that appellant’s left upper extremity symptoms were of unknown etiology. Similarly,
Dr. Lloyd provided disability certificates in 2008 advising that appellant underwent epidural
steroid injections without significant improvement and had a C6-7 nerve root block. He advised
that she was totally disabled. Dr. Lloyd subsequently advised that diagnostic studies revealed a
C5-6 disc protrusion and a disc herniation at L5-S1. He provided lumbar epidural injections in
treatment of appellant’s radicular symptoms. However, neither physician provided any
explanation of how appellant’s disability in September 2007 or in 2008 was caused or
contributed to by the accepted radiculitis or neuritis conditions. The reports fail to provide a full
history of appellant’s upper or lower extremity conditions or address whether any preexisting
conditions were aggravated by the fall she sustained at work. A mere medical conclusion
without rationale for the opinion reached is of diminished probative value.10 Dr. Lloyd failed to
address whether the disc herniations found in early 2008 preexisted the employment injury or
whether they were first diagnosed after appellant’s fall at work.11 The evidence from
Dr. Herding and Dr. Lloyd is insufficient to establish appellant’s claim.
Appellant was treated by Dr. Shade who noted that a January 17, 2008 MRI scan
revealed a small central disc herniation at L5-S1 and that she experienced bilateral lower
extremity radiculopathy for which she was disabled. In July 2008, Dr. Shade noted muscle
spasms in the region secondary to the June 25, 2008 steroid injection. He also diagnosed several
conditions not accepted by the Office as related to the May 25, 2007 injury, including carpal and
cubital tunnel syndrome, enthesopathy of the elbows, medial and lateral meniscus tears and
Achilles tendinitis. As noted, Dr. Becker obtained a “long history” of upper and lower extremity
symptoms and complaints. The reports submitted by Dr. Shade do not provide any further detail
as to appellant’s medical treatment prior to the accepted injury such that they do not provide a
full or accurate history.12 He did not adequately address how appellant’s disability as of
September 3, 2007 or medical treatment related to those conditions accepted by the Office, rather
than the other physical conditions he diagnosed. The Board has held that rationalized medical
evidence is an opinion from a physician which is based on a complete and accurate factual and
medical background of the claimant, findings on physical examination and diagnostic testing and
one of reasonable medical certainty in explaining how the accepted incident or employment
factor caused disability for work.13 The reports of Dr. Shade are of reduced probative value as
they are based on an incomplete medical history and do not explain how she was able to continue
in her employment from May 29 until September 3, 2007. He does not adequately address any
10

See Beverly A. Spencer, 55 ECAB 501 (2004).

11

The delay in diagnostic testing raises a question as to whether the conditions found are attributable to the
accepted employment injury. See Mary A. Ceglia, 55 ECAB 626 (2004).
12

See John W. Montoya, 54 ECAB 306 (2003). Medical reports based on an incomplete or inaccurate history are
of reduced probative value.
13

See Betty J. Smith, 54 ECAB 174 (2002).

6

bridging symptoms between the accepted injury and her medical treatment or disability on or
after the date she stopped work.14 This renders Dr. Shade’s opinion on causal relationship of
limited probative value.
Dr. Ingram, a clinical psychologist, treated appellant in April 2008 and made findings on
psychological examination. He diagnosed pain disorder associated with psychological factors
and a chronic medical condition and noted severe family and employment stressors. Dr. Ingram
advised that appellant was disabled due to her condition, noting that she was attending a pain
management program. His reports share the same deficiencies as noted with Dr. Shade. They
lack a detailed history of appellant’s upper or lower extremity conditions or any explanation of
how appellant’s accepted injury resulted in her disability on September 3, 2003 or the emotional
condition for which Dr. Ingram first treated her in 2008. Appellant has the burden of
establishing that her fall of May 25, 2007 caused or contributed to the emotional condition for
which Dr. Ingram provided treatment as it is not a condition accepted by the Office in this case.15
The family and work stressor referenced by Dr. Ingram are not well explained in his reports.
This further reduces the probative value of his opinion on appellant’s capacity for work and
disability for the period claimed.
The remainder of the medical evidence submitted is also insufficient to establish that
appellant sustained a recurrence of disability. Dr. Washington reviewed a history of appellant’s
May 25, 2007 injury and diagnosed cervical and lumbar conditions and left shoulder
enthesopathy for which she was disabled. Dr. Willis found essentially normal findings on
physical examination and diagnosed chronic neck and low back pain, cervical disc displacement
and radiculopathy and lumbar radiculopathy. Dr. McCurley noted only that appellant was
treated for her symptoms with medication and physical therapy. None of these physicians
addressed the issue of how her disability for work on September 3, 2007 related to her accepted
claim. The Board has held that the weight of medical opinion is not supported by the number of
physicians of record. Rather, it is based on the opportunity for and thoroughness of the medical
examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history and the care brought to the analysis in medical rationale expressed in support of
the opinion on causal relationship.16 Applying this standard, the medical reports of these
attending physicians must be found of reduced probative value.
The evidence from Ms. Steffek, a physician’s assistant, and Ms. Brown, a registered
nurse, is of no probative value in establishing appellant’s claim. Neither a physician’s assistant17
nor a nurse18 is a “physician” as defined under the Federal Employees’ Compensation Act.
Moreover, the term “physician” under 8101(2) includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
14

See Ricky S. Storms, supra note 5.

15

See Jaya K. Asaramo, 55 ECAB 200 (2004).

16

See John D. Jackson, 55 ECAB 465 (2004).

17

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005).

18

5 U.S.C. § 8101(2); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

7

correct a subluxation as demonstrated by x-ray to exist.19 As Dr. Santiago did not diagnose a
spinal subluxation based on x-ray, he is not a physician as defined and his reports are not
probative on the issue of appellant’s disability commencing September 3, 2007.20
Appellant has failed to submit rationalized medical evidence establishing that her
disability commencing September 3, 2007 resulted from the accepted injury.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability commencing September 3, 2007 causally related to her May 25, 2007 injury.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2009 and June 13, 2008 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: January 4, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

5 U.S.C. § 8101(2); see Paul Foster, 56 ECAB 208 (2004).

20

See Michelle Salazar, 54 ECAB 523 (2003).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lompoc, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-405
Issued: October 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 19, 2011 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs (OWCP) dated August 26 and 31, and October 20
and 21, 2011. 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’s actual earnings in telephone sales and manicuring
fairly and reasonably represented her wage-earning capacity; (2) whether OWCP properly
determined that appellant forfeited her right to compensation for the period April 9, 2000 to
April 5, 2009 because she failed to report work activity; (3) whether OWCP properly found that
an overpayment in compensation in the amount of $137,183.05 had been created for this period;
(4) whether OWCP properly found that an overpayment in compensation in the amount of
$20,047.75 was created for the period April 5, 2009 through July 2, 2011 because appellant
understated her earnings; (5) whether OWCP properly found that appellant was at fault in the
creation of the overpayments and they were not subject to waiver; and (6) whether OWCP
1

5 U.S.C. §§ 8101-8193.

properly required repayment of the $137,183.05 overpayment by deducting $221.00 each period
from appellant’s continuing compensation and whether OWCP properly required repayment at
the rate of $240.00 each month for the $20,047.65 overpayment.
On appeal appellant generally asserts that it would be a financial burden to repay the
overpayments.
FACTUAL HISTORY
On April 21, 1997 appellant, then a 30-year-old accounting technician, injured her left
wrist, thumb and arm when she fell at work. OWCP accepted the claim for left wrist strain.
Appellant resigned from the employing establishment for personal reasons in August 1997. She
briefly worked as a purchasing agent, and was self-employed as a manicurist until February 16,
2000 when she underwent surgical stabilization of the left thumb. Appellant received
compensation and was placed on the periodic compensation rolls. On November 1, 2000 she
underwent left lateral epicondylectomy. The accepted conditions include left carpal tunnel
syndrome, rupture of ligament supporting the carpometacarpal joint of the left thumb and left
lateral epicondylitis.
Appellant received wage-loss compensation and submitted signed CA-1032 forms, on
July 9, 2001, June 17, 2002, November 7, 2003, July 20, 2004, June 22, 2005, August 7, 2006,
August 1, 2007, June 30, 2008, July 31 and October 6, 2009. On each of these forms, which
require a claimant to report earnings for the previous 15 months, appellant stated that she was not
employed, self-employed and had not performed volunteer work.
In July 2006 OWCP was informed that appellant was working at a tanning and hair salon
while in receipt of FECA wage-loss benefits. In March and April 2008, undercover agents
observed appellant working as a manicurist. On March 17, 2010 appellant was interviewed by
Steve Bolz, a fraud investor for the Department of Labor (DOL) and Victor J. Bello, a special
agent with the Department of Justice (DOJ). The agents met her at her place of employment and
at her nearby home. Appellant described the April 1997 work injury and noted that she resigned
for personal reasons in August 1997. She stated that she did not report her earnings on CA-1032
forms because they were not significant enough, and that she began part-time work at a car
dealership three weeks prior. Appellant reported that she separated from her husband and that
their children lived with him. She signed an affidavit on March 18, 2010, acknowledging that
she had been in receipt of FECA benefits since 2000 and that she did not report self-employment
on DOL forms dated 2005 through 2009.
In June 2010 appellant was indicted on four counts of fraud in the receipt of
compensation benefits under FECA in U.S. District Court for the Central District of California.
The counts covered CA-1032 forms signed on August 7, 2006, August 1, 2007, June 30, 2008
and July 31, 2009. In a November 17, 2010 memorandum, an OWCP claims examiner discussed
the investigation and indictment. Appellant had net earnings of $55,423.60 for the period June 1,
2005 through July 31, 2009, or $255.11 per week. She had been paid wage-loss compensation at
an incorrect pay rate, as payments were based on a weekly pay rate of $336.33 while
compensation should have been based on a weekly pay rate of $659.60. The claims examiner

2

indicated that, even if appellant’s self-employment income for the period June 1, 2005 through
July 31, 2009 and the Shadrick formula were applied, she would still be underpaid $28,231.90.2
On a CA-1032 form signed July 5, 2010, appellant indicated that she began employment
on February 14, 2010 in telephone sales, earning $10.00 an hour, with actual earnings of
$6,004.00. From January 1, 2009 and continuing she was self-employed as a manicurist, at
varying rates of pay, with actual earnings of $8,325.00.
In January 2011 DOJ noted that appellant would not be prosecuted for FECA fraud but
would be referred for pretrial diversion. Appellant signed an agreement for pretrial diversion on
March 7, 2011. She admitted to making false statements on CA-1032 forms dated August 7,
2006, August 1, 2007, June 30, 2008 and July 31, 2009, periods in which she was self-employed
as a manicurist.
In a June 30, 2011 investigative memorandum, DOL Special Agent Bolz discussed the
April 20, 1997 work injury, noted that appellant resigned for personal reasons on August 3,
1997, and advised that she received FECA benefits continuously since February 16, 2000.
Agent Bolz acknowledged that OWCP relied on an incorrect pay rate in computing her
compensation. He listed the CA-1032 forms that covered the period April 9, 2000 through
October 5, 2009 in which appellant reported no employment or self-employment. Agent Bolz
described the evidence gathered, including surveillance, undercover visits to the salon, an
analysis of appellant’s appointment books, her signed statements and admissions she made in the
pretrial diversion agreement. During the March 17, 2010 interview, appellant’s estimate of
yearly earnings seemed far too low when compared with a review of her appointment books.
Agent Bolz concluded that, while appellant did limited manicurist work before the April 1997
work injury, she expanded the volume of work after resigning from the government. Appellant
averaged over 1,000 appointments a year, and that, at an average of $20.00 per appointment, she
earned at least $20,000.00 a year as a manicurist. He attached a Notification of Personnel
Action, effective August 1997, appellant’s claim forms, CA-1032, dated July 9, 2001 to July 5,
2010, investigative memoranda, charts showing her appointments and price list as a manicurist
and interview reports.
On a 1032 form signed June 21, 2011, appellant noted that she began employment on
February 15, 2010 in internet/telephone sales, with a $12.00 an hour rate of pay and actual
earnings of $31,753.00. She indicated that she was also self-employed as a manicurist from
January 2010 to March 31, 2011, at varying rates of pay, with actual earnings of $10,546.00. On
July 2, 2011 OWCP paid appellant compensation in the amount of $1,379.00 for the period
June 5 through July 2, 2011.
By decision dated August 26, 2011, OWCP found that appellant forfeited her right to
compensation for the period April 9, 2000 to April 5, 2009 because she knowingly omitted
reported earnings from self-employment on nine CA-1032 forms signed by her on July 9, 2001,

2

The formula for determining loss of wage-earning capacity based on actual earnings, developed in the Albert C.
Shadrick decision, Albert C. Shadrick, 5 ECAB 376 (1953), has been codified at 20 C.F.R. § 10.403. OWCP
calculates an employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings by the
current pay rate for the date-of-injury job. See J.C., 58 ECAB 700 (2007).

3

June 17, 2002, November 7, 2003, July 20, 2004, June 22, 2005, August 7, 2006, August 1,
2007, June 30, 2008 and July 31, 2009.
On August 26, 2011 OWCP also made a preliminary determination that appellant
received a $137,183.05 overpayment of compensation because she forfeited compensation from
April 9, 2000 through April 4, 2009 when she knowingly failed to report self-employment
earnings. Appellant was at fault in creating the overpayment because she made an incorrect
statement as to a material fact which she knew or should have known to be incorrect, failed to
provide information which she knew or should have known to be material, or accepted a
payment which she knew or should have known to be incorrect. She was provided with an
overpayment action request and an overpayment questionnaire and the actions she could take
were explained to her. Appellant was given 30 days to respond. Computer print-outs and an
overpayment worksheet contained in the record show that she received wage-loss compensation
totaling $137,183.05 for the period April 9, 2000 through April 4, 2009.
In a second August 26, 2011 preliminary determination, OWCP found that appellant was
at fault in creating a $9,339.11 overpayment of compensation for the period April 5, 2009
through July 2, 2011 because she knowingly failed to report self-employment and other earnings
on CA-1032 forms and should have been aware that her work activity should be reported. Based
on self-employment, she had average weekly earnings of $384.81, and that on a 1032 form she
signed on June 21, 2010, she reported earnings at Sunset Auto Center for 30 hours per week, at
an hourly rate of $10.00, for a weekly rate of $300.00. OWCP noted that for the period April 5,
2009 through July 2, 2011 appellant received compensation of $39,234.50; that based on her
self-employment earnings of $384.81 she should have received compensation of $12,161.25 for
the period April 5, 2009 through February 13, 2010; and, based on weekly earnings at Sunset of
$684.81 for the period February 14, 2010 through July 2, 2011, she should have received
compensation of $17,734.14. Thus, when the amount of compensation she should have received
for the period April 5, 2009 through July 2, 2011, or $29,895.39, was deducted from the
compensation she received, or $39,234.50, an overpayment in compensation of $9,339.11 was
created. Computer print-outs and an overpayment worksheet contained in the record indicate
that appellant received compensation totaling $39,234.50 for the period April 5, 2009 through
July 2, 2011.
In an August 31, 2011 decision, OWCP found that appellant’s actual earnings fairly and
reasonably represented her wage-earning capacity. It found that she earned $610.63 a week at
Sunset Auto Center, effective February 14, 2010, and had earned $384.81 a week in her many
years of self-employment as a manicurist, or a total weekly wage of $995.44. OWCP found that
she had a wage-earning capacity of 92 percent and reduced her monetary benefits to $221.00
each compensation period.3
Appellant submitted an overpayment questionnaire signed on September 13, 2011. She
stated that, if OWCP had not paid her compensation at an incorrect rate, she would not have had
to go to work to support her family. Effective March 31, 2011, appellant was no longer self-

3

OWCP initially reduced appellant’s compensation on August 26, 2011. This decision was rescinded by the
August 31, 2011 decision. In the latter decision, OWCP noted that appellant had reported increased earnings on a
CA-1032 form signed by her on June 21, 2011.

4

employed as a manicurist and was only working at Sunset Auto Center. She noted that she had a
monthly income of $1,800.00 and monthly expenses of $2,255.00.4
By decision dated October 20, 2011, OWCP finalized the determination that appellant
was at fault in creating a $137,183.05 overpayment of compensation for the period April 9, 2000
through April 4, 2009 because she forfeited compensation as she failed to report selfemployment earnings. Repayment was scheduled at the rate of $221.00 each compensation
period, which reduced her compensation to zero.
On October 21, 2011 OWCP finalized the overpayment of compensation for the period
April 5, 2009 through July 2, 2011. It found that, based on earnings reported by appellant, the
correct overpayment amount was $20,047.65. OWCP noted that she received compensation
totaling $39,234.50 from April 5, 2009 to July 2, 2011. It indicated that, from April 5, 2009
through February 13, 2010, based on appellant’s self-employment weekly earnings of $384.81,
she should have received compensation of $12,161.25; that, for the period February 14, 2010
through March 31, 2011, she should have received compensation of $3,191.00, based on weekly
earnings (from self-employment and work at Sunset) of $995.44; and that, for the period
March 31 through July 2, 2011, she should have received compensation of $3,834.60, based on
$610.63 weekly earnings at Sunset. Thus, when the compensation she should have received for
the period April 5, 2009 through July 2, 2011, or $19,186.85, was deducted from the
compensation she actually received, or $39,234.50, an overpayment of $20,047.65 was created.
OWCP advised appellant to repay the overpayment at the rate of $240.00 each month.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning
capacity.5 Generally, wages actually earned are the best measure of a wage-earning capacity,
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.6 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Albert C.
Shadrick decision,7 has been codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s
wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current
pay rate for the date-of-injury job.8 Its procedures provide that OWCP can make a retroactive
wage-earning capacity determination if the claimant worked in the position for at least 60 days,
the position fairly and reasonably represented his or her wage-earning capacity and the work

4

Appellant did not return the overpayment action request. She listed monthly expenses of $900.00 for rent or
mortgage, $300.00 for food, $750.00 for utilities and a $255.00 payment to Wells Fargo Auto.
5

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

6

Lottie M. Williams, 56 ECAB 302 (2005).

7

Albert C. Shadrick, supra note 2.

8

20 C.F.R. § 10.403 (2011).

5

stoppage did not occur because of any change in his injury-related condition affecting the ability
to work.9
ANALYSIS -- ISSUE 1
The Board finds that appellant’s actual earnings in private employment at Sunset Auto
Center and her self-employment as a manicurist represent her wage-earning capacity. On
June 21, 2011 appellant signed a CA-1032 form in which she stated that she was employed at
Sunset with hourly earnings of $12.00 and had annual earnings of $31,753.00. She worked at
least 40 hours a week at Sunset. Appellant also worked in self-employment as a manicurist. On
August 31, 2011 OWCP issued a formal loss of wage-earning capacity decision, finding that her
earnings fairly and reasonably represented her wage-earning capacity.
The Board finds that appellant’s actual earnings in internet/telephone sales with Sunset
plus her self-employment as a manicurist fairly and reasonably represent her wage-earning
capacity. Appellant began full-time work at Sunset on February 14, 2010 and continued in selfemployment as a manicurist. She worked in these positions for more than 60 days, and there is
no evidence that her employment was seasonal or temporary and no evidence to show that she
was not working eight hours a day.10 There is also no evidence that the positions consisted of
makeshift work designed for appellant’s particular needs.11 There is no evidence that she
stopped work as a manicurist because of a change in her injury-related condition.12 As there is
no evidence that appellant’s wages in the sales position at Sunset and her self-employment as a
manicurist did not fairly and reasonably represent her wage-earning capacity, they must be
accepted as the best measure of her wage-earning capacity.13
In applying the Shadrick formula, OWCP properly found that the weekly pay rate when
the disability occurred on April 20, 1997 was $659.60, for Item 1. For Item 2, it properly
utilized the current pay rate for the job and step when appellant was injured, or $1,080.27.
OWCP then properly found that her current weekly wage in her position with Sunset and her
self-employment earnings was $995.44, for Item 3.14 It then properly followed the Shadrick
formula and divided Item 3 by Item 2, yielding a 92 percent wage-earning capacity, Item 4. Item
4 was then multiplied by Item 1, for an adjusted wage-earning capacity of $606.83, Item 5. Item
5 was then subtracted from Item 1, yielding a loss in wage-earning capacity of $52.77 per week,
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity
Chapter 2.814.7(a) (July 1997); Selden H. Swartz, 55 ECAB 272 (2004).
10

Id.

11

See J.C., supra note 2.

12

Supra note 9.

13

See Daniel A. Reed, Docket No. 93-1052 (issued February 27, 1995).

14

OWCP calculated appellant’s earnings at Sunset at $610.63. In a CA-1032 form signed by appellant on
June 21, 2011, she indicated that she had earned $31,753.00 at Sunset annually. In the August 31, 2011 decision,
OWCP also determined that appellant had self-employment earnings as a manicurist of $384.81 a week. Special
Agent Bolz advised in a June 30, 2011 investigative report that appellant had annual earnings as a manicurist were at
least $20,000.00.

6

Item 6. OWCP then determined that compensation at the 75 percent augmented rate totaled
$39.58, Item 7, which was increased by cost-of-living adjustments to $55.25 a week. The Board
finds that OWCP properly applied the Shadrick formula in determining appellant’s loss of wageearning capacity.15
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
Section 8106(b) of FECA provides that the Secretary of Labor may require a partially
disabled employee to report his earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. It states that an employee who:
“(1) fails to make an affidavit or report when required; or
“(2) knowingly omits or understates any part of his or her earnings forfeits his or
her right to compensation with respect to any period for which the affidavit or
report was required.”16
Section 10.5(g) of OWCP’s regulations define earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”17
In order to establish that a compensationer should forfeit the compensation received for
the periods covered by completed CA-1032 forms, the evidence must establish that he or she
knowingly omitted or understated his or her employment and earnings.18 As forfeiture is a
penalty, it is not enough merely to establish that there were underreported earnings from
employment. The inquiry is whether appellant knowingly omitted or understated his earnings
from employment for the periods covered by the CA-1032 forms. The term “knowingly” as
defined in OWCP’s implementing regulations and Board precedent means “with knowledge;

15

Albert C. Shadrick, supra note 2.

16

5 U.S.C. § 8106(b); see F.C., 59 ECAB 666 (2007).

17

20 C.F.R. § 10.5(g) (2011).

18

Robert R. Holmes, 49 ECAB 161 (1997); 20 C.F.R. § 10.5(n) (2011).

7

consciously; intelligently; willfully; intentionally.”19 The language on CA-1032 forms is clear
and unambiguous in requiring a claimant to report earnings for the previous 15 months from any
employer, self-employment or a business enterprise in which he or she worked. The forms
further emphasize that severe penalties may be applied for failure to report all work activities
thoroughly and completely.20
ANALYSIS -- ISSUE 2
OWCP determined that appellant forfeited her entitlement to compensation for the period
April 9, 2000 to April 5, 2009. Appellant signed CA-1032 forms on July 9, 2001, June 17, 2002,
November 7, 2003, July 20, 2004, June 22, 2005, August 7, 2006, August 1, 2007, June 30,
2008, July 31 and October 6, 2009. She stated that she was not employed, self-employed and
had not performed volunteer work on the forms, each of which covered the preceding 15 months.
The June 30, 2011 investigative report and accompanying documentation, including an affidavit
signed by appellant on March 18, 2011, establish that she was self-employed as a manicurist
during the period of forfeiture. Appellant’s sworn statement and the findings documented in the
investigative memorandum support that she was self-employed. She clearly had unreported
earnings for the period April 9, 2000 to April 5, 2010.
Appellant can be subject to the forfeiture provision of section 8106(b) only if she
“knowingly” failed to report earnings or employment. OWCP has the burden of proof to
establish that a claimant did, either with knowledge, consciously, willfully, or intentionally,
failed to report earnings from employment.21 OWCP may meet this burden in several ways: by
an employee’s admission that he or she failed to report earnings he or she knew should be
reported; by establishing that an employee pled guilty to violating applicable federal statutes by
falsely completing the affidavits in CA-1032 forms; or by showing that, upon further inquiry by
OWCP as to employment activities, the employee continued to not fully and truthfully reveal the
nature of the employment activities.22
Appellant acknowledged that she failed to report earnings she knew should have been
reported to OWCP. Although the March 7, 2011 agreement for pretrial diversion on charges of
making false statements on CA-1032 forms is not a guilty plea, it constitutes persuasive evidence
of appellant’s knowledge that she understated her earnings for the period June 1, 2005 to
July 31, 2009. Based on her admission that she did not report earnings, the Board finds that she
knowingly failed to report earnings for the period April 9, 2000 to April 5, 2010, and she
therefore forfeited her right to compensation for this period.23

19

Christine C. Burgess, 43 ECAB 449 (1992).

20

A.C., Docket No. 11-1760 (issued April 13, 2012).

21

Supra note 17.

22

Melvin E. Gibbs, 54 ECAB 473 (2003).

23

Barbara Hughes, 48 ECAB 398 (1997). As to her argument before OWCP that she had to work because she
was paid at an incorrect compensation rate, the issue here is failure to report earnings, not that she had earnings.

8

LEGAL PRECEDENT -- ISSUES 3 & 4
Section 8106(b) of FECA provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment of self-employment by affidavit or otherwise, in the
manner and at times the Secretary specifies. An employee who:
1. Fails to make an affidavit or report when required; or
2. Knowingly omits or understates any part of his earnings;
“Forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered under section 8129 of this title, unless recovery is
waived under that section.”24
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statues.”25
ANALYSIS -- ISSUE 3
Regarding the overpayment of compensation in the amount of $137,183.05, OWCP
regulations provide that it may declare an overpayment of compensation for the period of a
forfeiture of compensation. If a claimant has any employment, including self-employment or
involvement in a business enterprise, during a period covered by a CA-1032 form which he or
she fails to report, the claimant is not entitled to any compensation for any portion of the period
covered by the report, even though he or she may not have had earnings during a portion of that
period.26
OWCP paid appellant compensation in the amount of $137,183.05 from April 9, 2000 to
April 5, 2009. As it properly found that appellant forfeited her entitlement to compensation
during this period because she failed to report earnings from employment on CA-1032 forms,
there exists an overpayment of compensation in the amount of $137,183.05.
24

5 U.S.C. § 8106(b).

25

20 C.F.R. § 10.529 (2011).

26

Louis P. McKenna, Jr., 46 ECAB 428 (1994).

9

ANALYSIS -- ISSUE 4
Regarding the $20,047.75 overpayment of compensation, OWCP found that this
overpayment was created from April 5, 2009 to July 2, 2011 because appellant knowingly
understated her earnings from outside employment for that period on CA-1032 forms. On the
CA-1032 form, appellant signed on July 5, 2010, she indicated that she earned $10.00 an hour at
Sunset and continued self-employment as a manicurist, with actual earnings of $8,325.00. On
the CA-1032 form she submitted on June 21, 2011, she indicated that she had annual earnings at
Sunset of $31,753.00. Appellant also reported that from January to March 31, 2011 she had
actual earnings of $10,546.00 as a manicurist.
Appellant reported on a CA-1032 form, signed by her on July 5, 2010, that her actual
self-employment earnings as a manicurist for the previous 15 months were $8,325.00. As noted
above, OWCP determined that her actual earnings as a manicurist were at least $20,000.00 a year
or $384.81 a week. Thus for the 15-month period covered by the July 5, 2010 form, appellant’s
actual earnings as a manicurist would have been approximately $25,000.00, not the $8,325.00
she reported. She also submitted a CA-1032 form on June 21, 2011 in which she also
underreported self-employment earnings, indicating that, for the 15 months covered by the CA1032 report, she had earnings of $10,546.00. Even though appellant stated that she stopped work
as a manicurist on March 31, 2011, since the CA-1032 form covered the prior 15 months, based
on annual earnings of $20,000.00, she would have earned approximately that amount prior to
stopping self-employment. The evidence thus supports that she knowingly understated her
earnings from self-employment and an overpayment of compensation was created.
In the October 21, 2011 decision, OWCP properly found that appellant was entitled to
$12,161.25 in compensation for the period April 5, 2009 through February 13, 2010, when offset
by her manicurist earnings of $384.81 per week. For the period February 14, 2010 through
March 31, 2011, it properly found that she was entitled to compensation of $3,191.00, when
offset by her combined earnings of $610.63 a week at Sunset and $384.81 a week as a
manicurist. Finally, OWCP properly found that appellant was entitled to compensation of
$3,834.60 for the period April 1 through July 2, 2011, when offset by her weekly earnings of
$610.63 from Sunset. Appellant received compensation totaling $39,234.50 for the period
April 5, 2009 through July 2, 2011, when she should have received compensation of $19,186.85
($12,161.25 + $3,191.00 + $3,834.60). Therefore, an overpayment of compensation in the
amount of $20,047.65 was created.
LEGAL PRECEDENT -- ISSUE 5
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”27

27

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

10

Section 10.433(a) of OWCP’s regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (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 to be incorrect. (This provision applies only to the
overpaid individual).”28
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.29
ANALYSIS -- ISSUE 5
The Board finds that OWCP properly determined that appellant was at fault in creating
the $137,183.05 overpayment because she failed to provide information which she knew or
should have known to be material on CA-1032 forms covering the period April 9, 2000 to
April 5, 2009. The record establishes that she had unreported self-employment activity during
this period and knowingly failed to furnish this material information to OWCP. Appellant
signed certification clauses on the 1032 forms which advised her in explicit language that she
might be subject to civil, administrative or criminal penalties if she knowingly made a false
statement or misrepresentation or concealed a fact to obtain compensation. By signing the
forms, she is deemed to have acknowledged her duty to fill out the forms properly, including the
duty to report any employment, self-employment, or involvement in a business enterprise.
Appellant failed to furnish information that she knew or should have known to be material to
OWCP. As she is not without fault in creating the overpayment in the amount of $137,183.05,
she is not entitled to waiver.30
The Board also finds that OWCP properly determined that appellant was at fault in
creating the $20,047.75 overpayment of compensation because she knowingly understated her
earnings on CA-1032 forms signed on July 5, 2010 and June 21, 2011. Under the standards for
finding fault in the creation of an overpayment, a claimant is at fault if he or she fails to provide
information that he or she knew or should have known was material or made an incorrect
statement as to a material fact that he or she knew or should have known was incorrect. As
28

20 C.F.R. § 10.433 (2011); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

29

20 C.F.R. § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

30

Harold F. Franklin, 57 ECAB 387 (2006).

11

noted, the evidence establishes that appellant made incorrect statements on the CA-1032 forms
signed by her on July 5, 2010 and June 21, 2011 because she underreported her self-employment
earnings. By signing the forms, appellant is deemed to have acknowledged her duty to fill out
the forms properly, including the duty to correctly report self-employment income. Her
understatement of earnings is an incorrect statement as to a material fact, and she was thus at
fault in creating an overpayment of $20,047.75 for the period April 5, 2009 to July 2, 2011. As
appellant is not without fault in creating the overpayment, she is not entitled to waiver.31
LEGAL PRECEDENT -- ISSUE 6
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and 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.32
ANALYSIS -- ISSUE 6
Regarding repayment of the $137,183.05 overpayment of compensation, OWCP’s
October 20, 2011 decision set a rate of recovery of $221.00 from appellant’s continuing
compensation per compensation period. This reduced her compensation to zero. For repayment
of the $20,047.65 overpayment, OWCP’s October 21, 2011 decision directed appellant to send in
a check in the amount of $240.00 each month to repay the overpayment.
The record supports that appellant underreported her income and did not provide
documentation to support her claimed expenses on the overpayment questionnaire she signed on
September 13, 2011. The Board finds that OWCP abused its discretion in setting the methods of
recovery of the two overpayments because it did not give due regard to the relevant factors found
in section 10.441 of the implementing federal regulations in either the October 20 or 21, 2011
final overpayment decisions. In the former, OWCP merely indicated that $221.00 would be
withheld from appellant’s continuing compensation, reducing her compensation to zero. The
decision did not mention the overpayment questionnaire or provide any discussion of the factors
described in section 10.441. While OWCP noted that appellant had understated her monthly
income in the October 21, 2011 decision, again OWCP stated that she should submit a $240.00
check each month to repay the overpayment and again did not discuss the relevant factors.
Furthermore, the Board notes that, as she is receiving monetary compensation, recovery of the
overpayment must be made by decreasing subsequent payments of compensation.33
The Board will set aside the October 20 and 21, 2011 decisions on the issue of recovery
only.34 On remand OWCP should reconsider the method of recovery for these overpayments.

31

Id.

32

20 C.F.R. § 10.441(a) (2011).

33

See Barbara Hughes, 48 ECAB 398, 403 (1997).

34

20 C.F.R. § 10.441; see L.G., Docket No. 11-1472 (issued February 6, 2012).

12

CONCLUSION
The Board finds that appellant’s actual earnings reasonably represented her wage-earning
capacity; that she forfeited her right to compensation for the period April 9, 2000 to April 5,
2009 because she failed to report work activity; that she received a $137,183.05 overpayment of
compensation for that period; that she received a $20,047.75 overpayment of compensation for
the period April 5, 2009 through July 2, 2011; and that OWCP properly found that appellant was
at fault in the creation of the overpayments. The Board also finds that OWCP abused its
discretion with regard to repayment of the overpayments.
ORDER
IT IS HEREBY ORDERED THAT the August 31 and 26, 2011 decisions of the Office
of Workers’ Compensation Programs are affirmed. The October 21 and 20, 2011 decisions of
OWCP are affirmed in part and set aside in part and remanded to OWCP for proceedings
consistent with opinion of the Board.
Issued: October 1, 2012
Washington, DC

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

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VA MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0632
Issued: September 25, 2020

Case Submitted on the Record

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

JURISDICTION
On January 29, 2019 appellant filed a timely appeal from an August 2, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has lapsed since the last merit decision, dated May 10, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.3

1

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated May 13, 2020, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 19-0632 (issued May 13, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 2, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On February 22, 2012 appellant, then a 58-year-old administrative officer, filed a traumatic
injury claim (Form CA-1) alleging that on February 15, 2012 when walking in a hallway to her
office, she slipped and fell on a sticky substance on the floor in a construction area where repairs
were being made, injuring her hands, shoulder, neck, back, knees, and legs while in the
performance of duty. She stopped work on the day of the alleged injury and returned to modifiedduty work on February 21, 2012. OWCP accepted the claim for a neck sprain, right knee
contusion, left elbow contusion, left shoulder sprain, and lumbosacral spondylosis without
myelopathy. It subsequently expanded its acceptance of the claim to include a right medial
meniscal tear.4
In an October 3, 2014 report, Dr. Clarence Shields, a Board-certified orthopedic surgeon,
recommended right knee surgery to repair a complex lateral meniscal tear, and left shoulder
arthroscopy to repair a small rotator cuff tear. In a report dated September 22, 2015, he held
appellant off work six weeks due to degenerative joint disease of the cervical spine, lumbar sprain,
and right knee. Appellant stopped work on September 23, 2015.
On September 23, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
as she was in a leave without pay (LWOP) status for the period September 23 to
November 4, 2015.
In a development letter dated September 24, 2015, OWCP advised appellant of the type of
evidence required to establish her claim for wage-loss compensation for the period September 22
to November 4, 2014. It afforded her 30 days to provide the necessary evidence.
In response, appellant provided October 14 and 19, 2015 reports by Dr. Shields holding
her off from work for six weeks due to right knee osteoarthritis.
On October 26, 2015 appellant filed a Form CA-7 as she was in an LWOP status during
the period November 5 to December 2, 2015.
By decision dated November 3, 2015, OWCP denied appellant’s claim for compensation
for the period September 23 to December 2, 2015 “and continuing.” It found that the medical

4

Appellant has a previously accepted traumatic injury claim under File No. xxxxxx141 that OWCP accepted for a
lumbosacral strain on April 26, 2005. OWCP has administratively combined File No. xxxxxx141 with the present
claim, File No. xxxxxx224, with File No. xxxxxx224 serving as the master file.

2

evidence of record did not establish that the accepted injuries disabled appellant from work during
the claimed periods.5
On March 4, 2016 appellant requested reconsideration of the November 3, 2015 decision.
She provided a January 5, 2016 report by Dr. Jacob E. Tauber, a Board-certified orthopedic
surgeon. Dr. Tauber diagnosed a torn right meniscus with degenerative arthritis, patellofemoral
chondromalacia of the left knee, degenerative arthritis of the left shoulder with partial rotator cuff
tear, and a cervical sprain with possible radiculopathy. He advised that appellant was totally
disabled from work. Dr. Tauber submitted subsequent periodic reports finding appellant’s
condition unchanged.
On March 24, 2016 OWCP expanded its acceptance of the claim to include a partial left
rotator cuff tear, left shoulder impingement syndrome, and left rotator cuff tendinitis.
On May 2, 2016 appellant filed a Form CA-7 as she was in an LWOP status during the
period April 22 to June 23, 2016.
Appellant underwent authorized right knee arthroscopy on May 27, 2016.
In a development letter dated May 9, 2016, OWCP advised her of the type of evidence
required to establish her claim for wage-loss compensation for the period April “20,” 2016 “and
continuing.” It afforded her 30 days to provide the necessary evidence.
In response, appellant submitted February 9 and May 10, 2016 reports by Dr. Tauber
reiterating previous diagnoses and finding her condition unchanged.
By decision dated June 2, 2016, OWCP denied modification of its prior decision.
On February 13, 2017 appellant requested reconsideration. She asserted that she was
disabled from work for the period September 23, 2015 to May 26, 2016. Appellant submitted
additional medical evidence.
In a November 7, 2013 report, Dr. Brett Leake, a Board-certified orthopedic surgeon,
diagnosed a partial left rotator cuff tear.
In reports dated June 7 to August 2, 2016, Dr. Tauber found appellant totally disabled from
work due to knee pain, shoulder pain, severe arthritis of the left shoulder, a torn right rotator cuff,
and cervical radiculopathy diagnosed left C6 radiculopathy.
Dr. Lawrence R. Miller, a Board-certified internist, anesthesiologist and pain management
specialist, diagnosed cervical spondylosis, left shoulder glenohumeral joint arthritis, status post

5

On December 18, 2015 OWCP referred appellant, the medical record, and a statement of accepted facts (SOAF)
to Dr. Richard A. Rogachevsky, a Board-certified orthopedic surgeon, for a second opinion on the nature and extent
of the accepted conditions. In a January 12, 2016 report, Dr. Rogachevsky opined that the accepted February 15, 2015
employment injury caused the left rotator cuff tear, right meniscal tears, and exacerbated preexisting cervical and
lumbosacral degenerative disc disease. He recommended that appellant undergo a left rotator cuff and right meniscal
repairs. Dr. Rogachevsky also noted permanent work restrictions.

3

right knee meniscectomy, and bilateral degenerative disease of the knees and feet in a report dated
June 23, 2016.
In an October 7, 2016 report, Dr. Louis J. Volpicelli, a Board-certified orthopedic surgeon,
diagnosed a cervical sprain, lumbosacral strain without myelopathy, left shoulder strain, left elbow
contusion, right knee contusion, torn right medial meniscus, and status post right knee arthroscopy.
He held appellant off from work and prescribed physical therapy.6 Dr. Volpicelli provided
periodic reports through April 24, 2017 holding appellant off from work.
By decision dated May 10, 2017, OWCP denied modification of its June 2, 2016 denial of
compensation from September 23 through December 2, 2015 and formally denied compensation
to May 26, 2016.
On May 16, 2018 appellant requested reconsideration. She provided reports dated from
May 11, 2017 to July 17, 2018 by Dr. Volpicelli holding her off from work due to left shoulder
dysfunction. Dr. Volpicelli also continued to prescribe physical therapy.
Appellant also provided physical therapy treatment notes dated February 21, 2017 to
May 22, 2018. She also submitted February 22 and March 2, 2018 imaging studies.7
On June 8, 2017 OWCP referred appellant, the medical record, and an updated SOAF to
Dr. Frederic Nicola, a Board-certified orthopedic surgeon, to assess appellant’s current work
capacity. Dr. Nicola submitted a June 29, 2017 report, noting that appellant had stopped work on
September 22, 2015 due to bilateral knee and left shoulder pain and underwent right knee
arthroscopy on May 27, 2016. Dr. Nicola noted findings on examination, including bilaterally
restricted shoulder motion, bilaterally positive Hawkins and impingement tests, bilaterally limited
knee extension, and effusion and crepitus of the left knee. He diagnosed traumatic arthritis of the
right knee, bilateral rotator cuff tears, bilateral glenohumeral arthritis, and residuals of cervical and
lumbar sprains. Dr. Nicola opined that appellant was disabled from work as she required
additional treatment for her right knee and bilateral rotator cuff surgery.8
OWCP paid appellant compensation on the periodic rolls commencing January 7, 2018.
On April 13, 2018 OWCP expanded its acceptance of the claim to include right medial and
lateral meniscal tears, and traumatic arthropathy of the right knee.
By decision dated August 2, 2018, OWCP denied appellant’s May 16, 2018 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

6

Appellant participated in physical therapy treatment from November 16, 2016 to March 16, 2017.

7

February 22, 2018 x-rays of the left shoulder showed narrowing of the subacromial space with a possible fullthickness rotator cuff tear. February 22, 2018 x-rays of the right knee showed moderately severe arthritis. A March 2,
2018 magnetic resonance imaging scan of the left shoulder demonstrated a partial-thickness supraspinatus tear, mild
acromioclavicular osteoarthritis, and mild glenohumeral osteoarthrosis.
8

Appellant retired from the employing establishment effective October 17, 2017.

4

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.9 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.10 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).11
Imposition of this one-year filing limitation does not constitute an abuse of discretion.12
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.13 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

9
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
10

20 C.F.R. § 10.607(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

12
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
13

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
14

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 11 at Chapter 2.1602.5 (February 2016).
15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 11 at Chapter 2.1602.5(a) (February 2016).

5

OWCP’s regulations16 and procedures17 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.18
The most recent merit decision was the May 10, 2017 OWCP decision, which affirmed the denial
of her claim for wage-loss compensation from September 23, 2015 to May 26, 2016. As
appellant’s request for reconsideration was not received by OWCP until May 16, 2018, more than
one year after the May 10, 2017 decision, it was untimely filed.19
In support of her untimely request for reconsideration, appellant provided reports from
Dr. Volpicelli holding her off from work from May 11, 2017 to July 17, 2018. She also submitted
the June 19, 2017 second opinion of Dr. Nicola. As he was not requested by OWCP to address
the claimed period of disability, he did not provide medical rationale documenting appellant’s
work capacity prior to May 26, 2016. Additionally, she submitted physical therapy notes and
imaging studies dated on and after February 21, 2017, subsequent to the claimed period of
disability. As these reports do not address the period at issue, they do not raise a substantial
question concerning the correctness of the May 10, 2017 OWCP decision, which denied
appellant’s claims for wage-loss compensation for the period September 23, 2015 to
May 26, 2016.
The Board has held that the term clear evidence of error is intended to represent a difficult
standard. The claimant must present evidence that on its face shows that OWCP made an error.20
The reports submitted on reconsideration are irrelevant to the claim as they do not address the issue
of disability during the claimed period. They are, therefore, insufficient to demonstrate clear
evidence of error in the May 10, 2017 OWCP decision.21
As appellant has not demonstrated clear evidence of error in OWCP’s May 10, 2017
decision, the Board finds that OWCP properly denied appellant’s untimely request for
reconsideration.22
On appeal appellant contends that the medical evidence of record is sufficient to establish
her claim for disability compensation. This argument, however, pertains to the merits of the claim,
which are not before the Board on the present appeal.

16

F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
17
Supra note 11 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
18

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert F. Stone, 57 ECAB 292 (2005).

19

20 C.F.R. § 10.607(b); see L.A., supra note 17; Debra McDavid, 57 ECAB 149 (2005).

20

G.B., Docket No. 19-1762 (issued March 10, 2020).

21

S.C., supra note 15.

22

See J.D., Docket No. 18-1765 (issued June 11, 2019).

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, as it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2020
Washington, DC

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

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

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

7