United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boone, NC, Employer
__________________________________________

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

Docket No. 10-1690
Issued: April 15, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 4, 2010 merit decision regarding forfeiture of compensation.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly found that appellant forfeited his right to
compensation from March 3, 2007 through April 3, 2009 because he knowingly failed to report
his earnings and employment activities.
FACTUAL HISTORY
On August 2, 2006 appellant, a 53-year-old customer service supervisor, filed a traumatic
injury claim alleging that he experienced stress, sleeplessness, depression and injuries to his
1

5 U.S.C. § 8101 et seq.

head, neck and chest as a result of being required by the employing establishment to drive long
distances for many hours between July 21 and August 12, 2006.2 The Office accepted the claim
for temporary aggravation of obstructive sleep apnea.3 Appellant stopped working on March 3,
2007 and was placed on the periodic rolls.
This case was previously before the Board. In a decision dated September 23, 2010, the
Board affirmed May 12 and September 24, 2009 decisions denying his request to expand his
claim to include a consequential emotional condition.4 In an order dated April 13, 2011, the
Board set aside a December 30, 2009 decision terminating appellant’s compensation benefits and
remanded the case for further development.5
On April 3, 2008 and April 1, 2009 the Office directed appellant to complete EN1032
forms reflecting his employment activities and earnings from employment during the 15-month
period preceding the date of the completion of the form. The forms requested that he report
employment other than self-employment for which he received salary, wages, sales
commissions, piecework or other payment. Appellant was to report all self-employment or
involvement in business enterprises including, but not limited to, farming, sales work, operating
a business, and providing services in exchange for money, goods or other services. He was
required to report activities such as carpentry, mechanical work, painting, contracting, childcare,
and odd jobs. Keeping books and records or managing and/or overseeing a business of any kind,
including a family business and even part-time or intermittent activities, were to be reported.
Appellant was to report work or any ownership interest in any business enterprise even if he was
not paid, the work was for a family member or relative, the business lost money, or income was
reinvested or paid to others. He was warned that a false answer might be grounds for suspension
of compensation and civil or criminal liability.
On EN1032 forms, signed and dated April 7, 2008 and April 3, 2009, appellant informed
the Office that he had no employment or self-employment during the 15 months prior to his
completion of the forms. He did not report his involvement in any activities which were
identified in the form as relevant to his employment.
An investigation was conducted by the Office of the Inspector General (OIG) of the
employing establishment regarding appellant’s employment activities and earnings. A
September 15, 2009 report revealed that appellant was actively engaged in employment activities
and had earnings during the 15-month periods covered by the EN1032 forms he signed on
April 7, 2008 and April 3, 2009, namely, the period April 3, 2007 through April 3, 2009.6
2

The Office properly developed the claim as an occupational disease claim, as the alleged injury occurred over a
period greater than one day or shift.
3

On April 7, 2009 appellant file a traumatic injury claim alleging that he sustained neck and head injuries as a
result of an August 4, 2006 motor vehicle accident when he fell asleep while driving in the performance of duty.
(File No.xxxxxx034). On December 7, 2010 the Office accepted the claim for cervical sprain.
4

Docket No. 10-165 (issued September 23, 2010).

5

Docket No, 10-1533 (issued April 13, 2011).

6

The Board notes that appellant did not begin receiving compensation benefits until April 3, 2007.

2

Through interviews with appellant, center staff officials and other employees, Special Agent
Joanne Yarbrough documented that appellant worked as a custodian at the Hayes Performing
Arts Center during 2007 and 2008.
In a September 15, 2009 interview, appellant acknowledged that he helped his wife with
“light cleaning” two to three times a week at the center, performing such duties as vacuuming,
taking out the trash and cleaning bathrooms. He denied, however, that he was paid for his
services. In other interviews, Tim Billman, technical director at Hayes, stated that appellant
performed janitorial duties at the center two to four days per week from August 2006 to 2008.
Rich Suyao, director of marketing, also reported that he performed janitorial duties at the center,
sometimes with his wife, sometimes alone. Kim Kay, education director, stated that he
witnessed appellant performing custodial duties and noted that his daughter took classes at the
center at the employee discount rate. Kenneth Kay, producing artistic director, and Gary Smith,
a technical assistant, also witnessed appellant conducting housecleaning and custodial duties at
the center during the period in question.
In a September 14, 2009 interview, Angelo Nigro, owner of Angelo’s Maintenance,
stated that appellant performed work for him, and that he helped his wife clean at the performing
arts center during calendar years 2007 and 2008. Mr. Nigro also indicated that he paid appellant
for painting services he performed, although he wrote the check to appellant’s wife. Robert
Miller, who was in charge of the center’s cleaning schedule, stated that appellant performed
cleaning services for the center between late 2006 and mid-December 2008, noting that he
usually arrived between 8:30 and 9:30 a.m. Mr. Miller indicated that he regularly provided
appellant with the center’s cleaning schedule during that time period. He also provided appellant
and his family with employee complimentary tickets for performances at the center. Allison
West, a part-time employee at the center, stated that she observed appellant and his wife
performing custodial duties there.
The OIG provided financial documents reflecting that Angelo’s Maintenance paid
appellant directly for labor on various occasions, including the amounts of $635.00 on
November 5, 2007 and $288.00 on March 13, 2007.
On September 16, 2009 the Office terminated appellant’s compensation benefits effective
September 27, 2009. By decision dated December 31, 2009, an Office hearing representative
affirmed the September 16, 2009 decision. In an April 13, 2011 order, the Board set aside the
December 31, 2009 decision and remanded the case to the Office for further development.7
By decision dated November 12, 2009, the Office found that appellant had forfeited his
entitlement to compensation from March 3, 2007 to September 26, 2009 because he knowingly
failed to report employment during that period.8
7

Supra note 5.

8

On November 17, 2009 the Office issued a preliminary overpayment determination, finding that appellant had
received an overpayment of compensation in the amount of $106,411.83 for the period April 3, 2007 to
September 26, 2009, as a result of the forfeiture. Appellant requested a prerecoupment hearing on May 17, 2010.

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On November 16, 2009 appellant, through his representative, requested a telephonic
hearing. At the February 10, 2010 hearing, appellant testified that he was not employed at the
performing arts center and that he was never an employee of Angelo Maintenance. Although he
was friends with Mr. Nigro, who owned Angelo Maintenance, appellant allegedly received no
remuneration from him. Appellant stated that his wife worked part time at the center and that he
helped her because he felt guilty staying at home, but that he was never paid. He acknowledged
that Mr. Nigro made a few checks payable to him by mistake. Appellant explained that if
Mr. Miller or other center employees saw him performing custodial duties, he was “just helping
his wife.” He stated that Mr. Kay probably thought he was cleaning alone because he and his
wife worked on different floors. Appellant testified that “we picked up” the cleaning schedule,
which Mr. Miller left in a drawer. Although only Angelo told them what to do, Mr. Kay might
say, “You don’t have to take my trash this time,” or, “There is no tissue in the women’s
restroom, so make sure that it gets replaced.” Appellant indicated that he accompanied his wife
approximately 60 percent of the time. When asked whether he was paid for painting services, he
stated that Mr. Nigro “loaned” him money and then he painted for him.
By decision dated May 4, 2010, the Office hearing representative affirmed the
November 12, 2009 forfeiture decision, finding that the evidence established that appellant
knowingly and willingly failed to report income for the periods covered by the EN1032 forms,
signed and dated April 7, 2008 and April 3, 2009, namely for the period April 3, 2007 to
April 3, 2009.9
LEGAL PRECEDENT
Section 8106(b) of the Act provides in pertinent part:
“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.... 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 by a deduction from the compensation payable to
the employee or otherwise recovered under section 8129 of this title, unless
recovery is waived under that section.”10
9

The hearing representative remanded the case to the Office for recomputation of the overpayment amount for
the period covered by the April 7, 2008 and April 3, 2009 CA-1032s.
10

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether he received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260.

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Before the Office can declare a forfeiture of compensation, it must establish that
appellant has received earnings from his own employment, not from passive investment in
business ventures.11
It is not enough merely to establish that there was unreported employment or earnings.
Appellant can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he or she
knowingly failed to report employment or earnings.12 The term “knowingly,” as defined in the
Office’s implementing regulations, means with knowledge, consciously, willfully or
intentionally.13 To meet this burden, the Office is required to examine closely appellant’s
activities and statements. It may meet this burden without an admission by the claimant if the
circumstances of the case establish that he failed to reveal fully and truthfully the full extent of
his employment activities and earnings.14
Section 10.5(g) of the Office’s regulations defines 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.”15
ANALYSIS
On April 7, 2008 and April 3, 2009 appellant signed CA-1032 forms asserting that he had
no income or employment for the 15-month period preceding his signing of the respective
documents. Appellant was advised of his responsibility to complete the forms accurately and
provide relevant information concerning his employment status and earnings during the period
covered by the forms. The record reveals, however, that appellant was employed and received
actual earnings during the periods covered by the forms. The Board finds that appellant forfeited
his entitlement to compensation benefits from April 3, 2007 to April 3, 2009 because he
knowingly failed to report employment and earnings during these periods.
The September 15, 2009 OIG investigative report documented that appellant worked as a
custodian at the Hayes Performing Arts Center during 2007 and 2008. Appellant acknowledged
that he helped his wife with “light cleaning” two to three times a week at the center, performing
11

Anthony V. Knox, 50 ECAB 402 (1999).

12

Barbara L. Kanter, 46 ECAB 165 (1994).

13

20 C.F.R. § 10.5(n).

14

Terry A. Geer, 51 ECAB 168 (1999).

15

20 C.F.R. § 10.5(g); see Monroe E. Hartzog, 40 ECAB 322, 329 (1988).

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such duties as vacuuming, taking out the trash and cleaning bathrooms. He noted his
involvement in retrieving the weekly cleaning schedule from Mr. Miller between late 2006 and
mid-December 2008, as well as responding to instructions from Angelo and Mr. Kay, and stated
that he accompanied his wife to work approximately 60 percent of the time. Center employees,
including the technical director, director of marketing, education director, producing artistic
director, and technical assistant, all stated that appellant had regularly performed janitorial duties
at the center during the period in question. Appellant received complimentary employee tickets
for performances at the center, as well as an employee discount for his daughter’s classes.
Angelo Nigro, owner of Angelo’s Maintenance, stated that appellant performed work for him,
and that he helped his wife clean at the performing arts center during calendar years 2007 and
2008. The Board finds that appellant’s activities as a custodian constituted earnings as defined
by 20 C.F.R. § 10.5(g).16 Accordingly, even if he did not receive any compensation for the
performance of these duties, as he alleges, he was required to report a reasonable estimate of the
cost to have someone else perform the duties.”17 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.18
The record also reflects that appellant received monetary compensation for his services
during the relevant period. Angelo’s Maintenance paid appellant directly for labor on various
occasions, including the amounts of $635.00 on November 5, 2007 and $288.00 on
March 13, 2007. Additionally, Mr. Nigro indicated that he paid appellant for painting services,
although he wrote the check to appellant’s wife. Thus, the record establishes that appellant had
earnings from his employment during the period in question.
The Board further finds that appellant knowingly failed to report earnings and
employment activities during the relevant period. On April 7, 2008 and April 3, 2009 appellant
denied that he was engaged in any employment activity or that he had received any employment
income for the 15-month periods preceding the signing of the forms. The evidence of record,
however, establishes that he was, in fact, employed and did, in fact, receive employment income
during that period. The forms signed by appellant explained the obligation for reporting all
forms of employment, self-employment and earnings. The explicit language of the Form
CA-1032 clearly advised him that the nature of his work as a custodian would require him to
report such employment activities on the form. Therefore, appellant was duly on notice of his
reporting obligation. Moreover, he acknowledged that he actually received checks payable to
him from Mr. Nigro and that he performed painting services for Mr. Nigro in exchange for a
“loan.” Under these circumstances, the Board concludes that appellant knowingly omitted his
earnings under section 8106(b)(2) of the Act by failing to report his employment activities and
earnings on the applicable CA-1032 forms for the period April 3, 2007 to April 3, 2009.
The Board notes that in its November 12, 2009 decision, the Office declared a forfeiture
for the period April 3, 2007 to September 26, 2009, the date of termination of appellant’s
16

Id.

17

See B.T., Docket No. 09-2190 (issued August 6, 2010).

18

20 C.F.R. § 10.5(g); see also C.R., Docket No. 09-720 (issued October 15, 2009); B.S., Docket No. 09-741
(issued May 14, 2010).

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compensation benefits. The Board finds, however, that the Office hearing representative
correctly determined that the period of forfeiture covered only the period encompassed by the
CA-1032 forms. The forfeiture provision is a penalty provision and is thus narrowly construed.19
There are no CA-1032 affidavits or other relevant evidence upon which to base a forfeiture of
compensation payments subsequent to April 3, 2009.
On appeal, appellant’s representative contends that 20 C.F.R. § 10.441 required the
Office to provide him copies of the CA-1032 forms on which it based its decision and that, since
the Office failed to send him the required notice, the May 4, 2010 decision should be vacated.
The Board notes that counsel’s reliance on 20 C.F.R. § 10.441 is misplaced, as this section is no
longer in effect and has been replaced by 20 C.F.R. § 10.700(c). Current regulations provide that
a properly appointed representative who is recognized by the Office may make a request or give
direction to the Office regarding the claims process, including a hearing. This authority includes
presenting or eliciting evidence, making arguments on the facts or the law and obtaining
information from the case file, to the same extent as the claimant.20 Any notice requirement
contained in the regulations or the Act is fully satisfied if served on the representative and has
the same force and effect as if sent to the claimant.21 The Board has held that decisions under the
Act are not deemed to have been properly issued unless both appellant and the authorized
representative have been sent copies of the decision.22
The applicable regulations grant a duly appointed representative certain privileges, as
noted. It does not, however, require the Office to provide a representative with a copy of every
document provided to a claimant, absent a specific request. A CA-1032 form is in the form of an
affidavit and requires that the employee truthfully provide and certify certain information, which
is within the knowledge of the employee. Appellant’s counsel cannot substitute his answers for
the employee’s in completion of the Form CA-1032. He also argues that he should have
received notice of appellant’s receipt of the form because Form Ca-1032 is an administrative
action requiring such notice, and that failure to provide notice deprived appellant of a property
interest in not having his rights forfeited. Appellant was on notice from the time he began
receiving compensation benefits of his duty to report employment. The Office’s request for
financial information, in keeping with his ongoing requirement to inform the Office of any
employment activity or income, does not constitute an administrative action requiring notice.
Accordingly, the Board finds that the Office properly determined that appellant forfeited
his right to compensation for the period April 3, 2007 to April 3, 2009.

19

Karen Spurling, 56 ECAB 189 (2004).

20

20 C.F.R. § 10.700(c).

21

Id. See also Sara K. Pearce, 51 ECAB 517, 518 (2000).

22

See Travis L. Chambers, 55 ECAB 138 (2003).

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CONCLUSION
The Board finds that the Office properly found that appellant forfeited his right to
compensation for the period April 3, 2007 to April 3, 2009 because he knowingly failed to report
his employment activities and income.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 4, 2010 decision is affirmed.
Issued: April 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
McCLELLAN AIR FORCE BASE, CA,
Employer
__________________________________________

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

Docket No. 07-1927
Issued: December 26, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from a June 7, 2007 Office of Workers’
Compensation Programs’ overpayment decision. Pursuant to 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 the Office properly determined that appellant received a
$32,408.33 overpayment of compensation from October 14, 1989 to January 26, 2002; and
(2) whether it properly found that she was not without fault in the creation of the overpayment,
thus precluding waiver of the overpayment.
FACTUAL HISTORY
On January 4, 1988 appellant, then a 36-year-old supply technician, filed a traumatic
injury claim alleging that she injured her right knee when she fell. In a CA-7 claim for
compensation, she indicated that she had one dependant, her husband. On July 28, 1988 the

Office accepted appellant’s claim for a right knee contusion. Appellant lost intermittent time
from work until July 1, 1988 when she stopped work and did not return. Effective August 14,
1988 she was placed on the periodic compensation rolls for temporary total disability. The
Office advised appellant that she would receive wage-loss compensation at the three-fourths
augmented pay rate for employees with one or more dependents.
In an Office Form EN1032 dated October 10, 1989, reporting employment and income,
appellant indicated that she would not be eligible to receive compensation at the augmented pay
rate for an employee with dependants as of October 14, 1989 because her divorce would be final
on that date. She answered “no” in answer to the question in Part B of the form as to whether
she had any dependants. The record also contains copies of EN1032 forms dated 1992 to 2002.
In 1992, appellant submitted a copy of her 1989 divorce decree to the Office.
In an April 23, 2002 memorandum to the file, an Office claims examiner noted that
appellant provided notification that her divorce would be final on October 14, 1989. However,
the Office failed to change her compensation pay rate from the three-fourths pay rate for
employees with dependants to the statutory two-thirds rate. It continued to pay appellant at the
three-fourths rate through January 26, 2002.
By letter dated April 23, 2002, the Office advised appellant of its preliminary
determination that she received a $32,408.33 overpayment of compensation. It found that she
received the three-fourths compensation rate for wage loss, for employees with dependants, from
October 14, 1989 to January 26, 2002, but she was divorced October 14, 1989.1 The Office
calculated the overpayment by subtracting the amount of compensation appellant was entitled to
receive, using the proper two-thirds pay rate for an employee without dependants from the
compensation she actually received at the three-fourths rate. The Office notified appellant of its
preliminary determination that she was not without fault in the creation of the overpayment
because she knew or should have known that she was not entitled to receive wage-loss
compensation at the augmented three-fourths rate for employees with dependants on and after
October 14, 1989, the date of her divorce. It noted that appellant provided notification in
October 1989 of her divorce and submitted a copy of her divorce decree in 1992. However, she
continued to accept compensation at the incorrect three-fourths rate. Appellant was given 30
days in which to submit additional evidence or argument or request a telephone conference, a
prerecoupment hearing before the Branch of Hearings and Review or a final decision. There was
no response from appellant.
By decision dated December 23, 2004, the Office finalized its determination that
appellant received an overpayment of $32,408.33 from October 14, 1989 to January 26, 2002
because she accepted payments at the three-fourths pay rate for employees with dependants but
had no dependants after October 14, 1989, the date of her divorce. The Office determined that
she was not without fault in the creation of the overpayment because she knew or should have
known that she was not entitled to the compensation rate for employees with dependants on and
after October 14, 1989. Although appellant notified the Office of her divorce in 1989 and
provided a copy of her divorce decree in 1992, she accepted compensation at the three-fourths
1

Appellant’s only dependant was her husband.

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rate from October 14, 1989 to January 26, 2002. She knew or should have known that she was
entitled to only the two-thirds pay rate as of October 14, 1989.
In a letter dated May 29, 2007, appellant contended that she was not at fault in the
creation of the overpayment of compensation because she notified the Office of her divorce in
1989 and provided a copy of her divorce decree. She asserted that she should not have been
expected to know that her compensation payments should be reduced at the time of her divorce
because she never received notification from the Office.
By decision dated June 7, 2007, the Office found that appellant received a $32,408.33
overpayment of compensation from October 14, 1989 to January 26, 2002 and that she was at
fault in the creation of the overpayment, thus precluding waiver of the overpayment.2 The Office
stated:
“The fact that you completed and signed the EN[10]32 form and advised this
Office [that] your divorce would be finalized October 14, 1989 demonstrates
[that] you should have reasonably known your compensation rate is partially
reliant on whether or not you have ‘eligible dependents.’ Each EN1032 form,
under Part [B]3 -- Dependents, advises that a claimant will be compensated at a
dependency rate of 2/3 in the absence of any eligible dependents and at a
dependency rate of 3/4 wherein there is at least one eligible dependent. The form
further defines an ‘eligible dependent’ as being (a) a husband or wife who lives
with you; (b) an unmarried child …. who lives with you and is under 18 years of
age; (c) an unmarried child who is 18 or over, but who cannot support himself or
herself because of mental or physical disability; (d) and unmarried child under 23
years of age who is a full-time student and has not completed four years of school
beyond the high school level; (e) a parent who totally depends upon you for
support. The EN1032 cover letter also instructs a claimant to ‘READ ALL
INSTRUCTIONS CAREFULLY BEFORE FILLING OUT YOUR
STATEMENT.’
“Therefore, any reasonable person who completed and signed the EN1032 should
have reasonably known that a claimant without an eligible dependent is entitled to
compensation based on a dependency rate of 2/3 [percent,] while a claimant with
at least one eligible dependent is entitled to compensation based on a dependency
rate of ¾ [percent]. It is inferred that you read and understood the Part [B] -Dependents’ portion of the EN1032 form since you signed and dated the EN1032
form. Furthermore, any reasonable person would have provided the date his/her
divorce would be finalized in order to prevent an overpayment of compensation.
Lastly, any reasonable person would have realized that the amount of
2

Subsequent to the June 7, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

The section regarding dependents in appellant’s EN1032 forms are captioned “Part B,” not C, as indicated by
the Office.

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compensation should have been reduced following the date of a finalized divorce.
[Appellant], however, continued to accept compensation subsequent to
October 14, 1989 at the same predivorce compensation rate.”
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of the Federal Employees’ Compensation Act provides that when an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Office by decreasing later payments to which the
individual is entitled.4
The Act provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.5 If the
disability is total, the United States shall pay the employee monthly monetary compensation
equal to 66 2/3 percent of his or her monthly pay, which is known as the basic compensation for
total disability.6 Under section 8110 of the Act, an employee is entitled to compensation at the
augmented rate of three-fourths of his or her weekly pay if he or she has one or more
dependants.7 If a claimant receives augmented compensation during a period when he or she has
no eligible dependents, the difference between the compensation he or she was entitled to receive
at the two-thirds compensation rate and the augmented compensation received at the threefourths rate constitutes an overpayment of compensation.8
ANALYSIS -- ISSUE 1
The Board finds that the Office correctly determined that appellant received an
overpayment from October 14, 1989 to January 26, 2002. The record shows that she received
wage-loss compensation from the Office at the augmented three-fourths rate for employees with
dependants in the amount of $32,408.33, from October 14, 1989 to January 26, 2002. Because
appellant was divorced October 14, 1989 and no longer had a dependant, she was not entitled to
receive wage-loss compensation at the augmented rate on and after that date. Thus, she received
a $32,408.33 overpayment of compensation from October 14, 1989 to January 26, 2002 based on
an incorrect pay rate.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
4

5 U.S.C § 8129.

5

5 U.S.C. § 8102(a).

6

5 U.S.C. § 8105(a). See also Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

7

5 U.S.C. § 8110.

8

See Diana L. Booth, 52 ECAB 370 (2001) (the Board held that the claimant received an overpayment of
compensation because she received compensation at the augmented rate during a period when she had no
dependants following her divorce).

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when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.9 Section 10.433 of the implementing regulations specifically provides that the
Office may consider waiving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.10 The regulation further provides that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.11 Under the regulations, a recipient
will be found to be at fault with respect to creating an overpayment if he or she “[a]ccepted a
payment which he or she knew or should have known to be incorrect.”12 Whether or not the
Office determines that an individual was at fault with respect to the creation of an overpayment
depends on the circumstances surrounding the overpayment.13
ANALYSIS -- ISSUE 2
The Office found that appellant was not without fault in the creation of the overpayment
based on the third criterion above, that she accepted payments which she knew or should have
known to be incorrect. In order for the Office to establish that appellant was at fault in creating
the overpayment, the Office must show that, at the time she received the compensation checks in
question, appellant knew or should have known that the payment was incorrect.14 With respect
to whether an individual is with fault, section 10.433(b) of the Office’s regulations provide that
whether or not the Office determines that an individual was with fault with respect to the creation
of an overpayment depends on the circumstances surrounding the overpayment. The degree of
care expected may vary with the complexity of those circumstances and the individual’s capacity
to realize that he or she is being overpaid.15
The record in this case establishes that appellant received compensation from the Office
for lost wages at the three-fourths compensation rate for employees with dependants from
October 14, 1989 to January 26, 2002. As noted, if a claimant receives augmented compensation
during a period when she has no eligible dependents, the difference between the compensation
she was entitled to receive at the two-thirds compensation rate and the augmented compensation
received at the three-fourths rate constitutes an overpayment of compensation. The only matter
to be determined is whether appellant accepted payments she knew or should have known to be
incorrect when she accepted the Office’s compensation checks.

9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

10

20 C.F.R. § 10.433(a).

11

Id.

12

20 C.F.R. § 10.433(a)(3).

13

20 C.F.R. § 10.433(b).

14

See Otha J. Brown, 56 ECAB ___ (Docket No. 03-1916, issued December 23, 2004); Karen K. Dixon, 56
ECAB ___ (Docket No. 03-2265, issued November 9, 2004).
15

20 C.F.R. § 10.433(b).

5

The Board finds that appellant was not without fault in creating the overpayment from
October 14, 1989 to January 26, 2002. Appellant acknowledged and the record establishes that
she received compensation checks for the period October 14, 1989 to January 26, 2002 at the
augmented three-fourths rate for employees with dependants. The evidence establishes that she
was aware or reasonably should have been aware that she was not entitled to augmented
compensation for an employee with dependants on and after October 14, 1989, the date of her
divorce from her husband, her sole dependant. As noted in the EN1032 form appellant signed
and dated October 10, 1989, she indicated that she would not be eligible to receive the
compensation pay rate for an employee with dependants as of October 14, 1989 because her
divorce would be final on that date. She also answered “no” in answer to the question in Part B
of the form as to whether she had any dependants. The Board finds that appellant is not without
fault in the creation of the overpayment from October 14, 1989 to January 26, 2002 because she
accepted payments that she knew or should have known to be incorrect. That the Office may
have been negligent in issuing the checks does not mitigate this finding.16 Even if an
overpayment resulted from negligence by the Office this does not excuse the employee from
accepting payment which the employee knew or should have been expected to know she was not
entitled to receive.17 The Office’s finding that appellant was not without fault in the creation of
the overpayment is proper under the facts and circumstances of this case, as she knew or should
have known that she was not entitled to accept compensation at the augmented rate for
employees with dependants after her divorce on October 14, 1989. As appellant is not without
fault in the creation of the overpayment from October 14, 1989 to January 26, 2002, she is not
eligible for waiver. The Office is required by law to recover this overpayment.18
On appeal, appellant asserts that recovery of the overpayment of compensation would
create a financial hardship for her. However, as noted, waiver of recovery of an overpayment is
not permitted unless a claimant is “without fault” in creating the overpayment.19 Because
appellant was not without fault in the creation of the overpayment, she is not entitled to
consideration of waiver of recovery of the overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received a $32,408.33
overpayment from October 14, 1989 to January 26, 2002. It further finds that the Office
properly found that appellant is not without fault in the creation of the overpayment and is
therefore not eligible for waiver of recovery of the overpayment.

16

See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

17

See Diana L. Booth, supra note 8.

18

Recovery of the overpayment is not an issue in this case as appellant is not in receipt of continuing total
disability payments from the Office. 20 C.F.R. § 10.441(a); see also Bob R. Gilley, 51 ECAB 377 (2000).
19

See Dale Mackelprang, 55 ECAB 174 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2007 is affirmed.
Issued: December 26, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, RED BANK STATION, )
Chattanooga, TN, Employer
)
__________________________________________ )
C.B., Appellant

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

Docket No. 07-1232
Issued: October 4, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from the September 18, 2006 decision of
an Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of his compensation benefits. Pursuant to 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 the Office properly terminated appellant’s compensation
benefits, effective February 20, 2005, on the grounds that he had no disability or residuals
causally related to his accepted lumbosacral strain; and (2) whether appellant established that
continuing disability or residuals related to his accepted employment injury.

FACTUAL HISTORY
On July 9, 2001 appellant, then a 57-year-old letter carrier clerk, filed a traumatic injury
claim, Form CA-1, alleging that he injured his lower and middle back on July 6, 2001 when he
lifted bundles of flat mail.1 Office File No. 062040117.
In a July 6, 2001 report, Dr. David Shultz, an osteopath, diagnosed lumbosacral strain
and noted that x-rays revealed degenerative changes throughout the lumbar spine and mild
narrowing at L5-S1. He reported that appellant had a history of intermittent back pain and some
periods of chronic back pain, the last being in 1999. Dr. Shultz also noted that appellant had
permanent work restrictions related to his knees.2 He stated that appellant’s current subjective
symptoms included nonradiating low back pain. On December 10, 2001 the Office accepted the
claim for lumbosacral strain.
On April 17, 2002 Dr. Robert Baum, a Board-certified physiatrist, reported that appellant
was experiencing ongoing soreness in his low back, which he attributed primarily to his duties at
the employing establishment. He limited appellant to four hours of sedentary work per day
because his pain increased with movement. On April 19, 2002 the employing establishment
provided appellant a limited-duty position.
By decision dated October 23, 2002, the Office issued appellant a wage-earning capacity
determination based on his actual earnings in his part-time schedule as a clerk/carrier and placed
him on the periodic rolls.
On July 16, 2003 Dr. Baum removed appellant from work so that he could participate in
physical therapy for chronic low back and neck pain. On July 17, 2003 appellant requested
compensation for wage loss beginning July 21, 2003. On August 5 and 8, 2003 the Office
denied authorization for physical therapy and wage-loss compensation, noting that Dr. Baum had
not provided a detailed, narrative medical report relating appellant’s current condition to the
accepted employment injury.
On September 4, 2003 Dr. Baum provided an overview of appellant’s treatment. He
stated that on July 3, 2001 appellant had informed Dr. David DeBoer, a Board-certified
orthopedic surgeon, that he had radiating pain in his lower right leg. Dr. DeBoer determined that
the problem was not caused by appellant’s right knee, on which he had previously operated and
referred him to Dr. Baum for spinal treatment. On July 10, 2001 a magnetic resonance imaging
(MRI) scan performed on appellant’s lumbar spine revealed moderate widespread spondylosis
with borderline spondylosis at L2-3 and bilateral foraminal stenosis but no definite herniations.
Based on the MRI scan, Dr. Baum diagnosed low back pain with radicular pain in the right leg
and treated appellant unsuccessfully with epidural steroid injections. He then referred appellant
to Dr. Tarek Elalayli, a Board-certified orthopedic surgeon. On December 26, 2001 Dr. Elalayli
1

The Board notes that appellant simultaneously filed a claim of recurrence of disability related to a back injury
sustained in 1999. The recurrence claim was not developed. The record establishes that on September 28, 1999
appellant was accepted for a cervical strain and contusion of the ribs under File No. 060736689.
2

Appellant was accepted for knee conditions under File No. 060530525 for a January 24, 1986 injury.

2

found that appellant had spondylosis, but no significant stenosis or degenerative disc disease. On
January 14, 2002 he stated that appellant had no spinal instability or misalignment.
On April 17, 2002 Dr. Baum limited appellant to four hours of sedentary work per day.
On August 14, 2002 he reported that for the previous month appellant had experienced cervical
and right shoulder discomfort, which started without any associated accident or injury. On
March 31, 2003 Dr. Baum reported that appellant continued to have cervical pain and radicular
symptoms in his right arm despite undergoing physical therapy. An MRI scan revealed a
moderate-sized right paracentral disc protrusion at C5-6 that was causing an impression on the
right anterolateral aspect of the cord, mild narrowing of the right C5-6 neuroform and small
protrusions from C2 to C5. On April 2, 2003 Dr. Elalayli diagnosed right C5-6 herniated disc.
On May 14, 2002 he found that appellant had pain in his left shoulder and diagnosed left
shoulder impingement. On June 13, 2003 Dr. Baum removed appellant from work until he could
get physical therapy for his cervical and shoulder pain. In light of this medical history, he stated
that appellant’s spondylosis and bilateral foraminal stenosis were preexisting, but that they could
have been aggravated by his employment duties. Dr. Baum found that appellant’s ability to
function at work was compromised.
On June 4, 2002 the employing establishment submitted a report on surveillance
conducted May 27 and 28, 2004. The employing establishment alleged that appellant engaged in
yard work for three consecutive hours without any apparent difficulty or discomfort.3
The Office referred appellant for a second opinion on the causal relationship between his
current condition and his accepted injury. On June 29, 2004 Dr. Neil Spitalny, a Board-certified
orthopedic surgeon, reviewed appellant’s medical history and conducted a physical examination.
He noted that appellant complained of low back and neck pain and bilateral shoulder numbness.
Appellant stated that his pain was deep inside and that it increased with coughing and sleeping
and improved with rest and decreased movement. Dr. Spitalny found 85 degrees of flexion, 20
degrees of right lateral rotation and 30 degrees of left lateral rotation in appellant’s spine and
symmetrically decreased reflexes in the ankles and knees. He found that the radiographs showed
“surprisingly little degenerative changes at L4 with some L5-S1 disc space narrowing and
normal alignment.” Dr. Spitalny diagnosed chronic deconditioning syndrome based on mild to
moderate lumbar spondylosis and previously existing degenerative disc disease. He opined that
the cervical and lumbar disc disease was part of the normal aging process, but that appellant’s
preexisting back and knee problems made him more prone to lumbar strain. Dr. Spitalny found
that appellant was not totally disabled from work, but recommended limiting his walking,
standing and squatting. He found that the aggravation of the underlying spondylosis was
temporary “as it had been from 1993 to 1999 to 2001” and that appellant had ceased work in
2003 because of his unrelated neck and shoulder problems.
On August 20, 2004 the Office requested that Dr. Spitalny supplement his report. On
August 26, 2004 Dr. Spitalny stated that appellant had no work limitations related to his July 6,
2001 employment injury. However, because of his knee, shoulder and back conditions, appellant

3

Photographs from the surveillance were submitted to the Office on June 29, 2004.

3

would be limited in his functional capacity. On November 10, 2004 the Office provided
Dr. Spitalny’s report to Dr. Baum for his review. Dr. Baum did not respond.
By notice dated January 3, 2005, the Office proposed termination of appellant’s wageloss compensation and medical benefits based on Dr. Spitalny’s report.
On January 7, 2005 appellant challenged Dr. Spitalny’s findings. He stated that his
preexisting cervical condition had been accepted by the Office and that he had complained about
cervical pain shortly after he sustained injury on July 6, 2001. On January 21, 2005 appellant
submitted documents related to his July 6, 2001 employment injury, his 1999 employment
injury, and a 1991 claim for lumbar and cervical strain. He noted that an occupational health
services intake sheet dated July 9, 2001 contained the statement “[Patient] states, ‘This wouldn’t
have anything to do with my neck being stiff would it?’”
By decision dated February 9, 2005, the Office terminated appellant’s benefits effective
February 20, 2005. The Office found that the evidence submitted by appellant was repetitious or
irrelevant and that that the evidence of record established that appellant was able to return to
regular duty. The Office found that the weight of the medical evidence rested with Dr. Spitalny,
who opined that appellant’s lumbosacral strain of July 6, 2001 had resolved.
On February 14, 2005 appellant requested an oral hearing. He challenged the termination
of his benefits on the grounds that he had not been provided with all of the photos and video
taken as part of the employing establishment’s investigation. Appellant also contended that the
medical record established that his cervical condition was related to his employment injury and
that he was still entitled to wage-loss benefits because of his accepted knee injury.
At the hearing held on June 30, 2006 appellant stated that the Office had erroneously
terminated his wage-loss benefits for his accepted right knee condition when it terminated his
lumbar strain benefits. He said that, at the time of his accepted lumbar injury, he also sustained
cervical injury, which began causing pain as his lumbar spine condition improved. Appellant
stated that he stopped working because his cervical spine was causing him too many problems
and the Office was not authorizing treatment.
On August 9, 2006 appellant stated that a computerized tomography (CT) scan he
provided on July 16, 2006 confirmed that he had two ruptured discs in his lower back.
By decision dated September 15, 2006, the Office hearing representative affirmed the
termination of appellant’s benefits.4 He found that the Office had established that appellant’s
cervical and lumbar conditions were unrelated to his accepted lumbar sprain. The hearing
representative noted that Dr. Baum never stated that appellant’s preexisting spondylosis was
aggravated by the accepted employment injury and did not provide any rationale relating the
cervical condition to the accepted injury. He stated that Dr. Spitalny found no evidence of
lumbar strain and indicated that all of appellant’s symptoms were related to his underlying
degenerative condition, which had been only temporarily aggravated by the employment injury.
4

The Office hearing representative referenced the records of appellant’s other accepted medical conditions to
provide context for his decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.5 The Office may not terminate compensation without
establishing that disability has ceased or that it is no longer related to the employment injury.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for lumbosacral strain. The issue to be determined
is whether the Office has met its burden of proof to establish that appellant had no remaining
disability or residuals related to his accepted injury.
On June 29, 2004 Dr. Neil Spitalny, a Board-certified orthopedist, found that appellant’s
spine had 85 degrees of flexion, 20 degrees of right lateral rotation and 30 degrees of left lateral
rotation and the reflexes in his ankles and knees were symmetrically decreased. He found that
the radiographs showed little degenerative change at L4 with some L5-S1 disc space narrowing
and normal alignment. Dr. Spitalny diagnosed chronic deconditioning syndrome based on mild
to moderate lumbar spondylosis and previously existing degenerative disc disease. He opined
that the cervical and lumbar disc disease was part of the normal aging process, but that
appellant’s preexisting back and knee problems made him more prone to lumbar strain.
Dr. Spitalny found that appellant was not totally disabled from work, but recommended limiting
his walking, standing and squatting because of his overall physical condition. He found that the
aggravation of the underlying spondylosis was temporary and that appellant had ceased work in
2003 because of his unrelated neck and shoulder problems. In an August 26, 2004 supplement to
his report, Dr. Spitalny stated that appellant had no work limitations related to his July 6, 2001
injury, but that, because of his other knee, shoulder and back conditions, he would be limited in
his functional capacity. The Board finds that Dr. Spitalny’s opinion is entitled to the weight of
the medical opinion evidence because it is thorough and well reasoned and resolves the issues
related to appellant’s accepted employment injury.
The Board finds that Dr. Baum’s reports are of diminished probative value. On
September 4, 2003 Dr. Baum, a Board-certified orthopedic surgeon, reported that appellant had a
history of pain associated with lumbar and cervical spondylosis, lumbar stenosis and a cervical
disc herniation. He stated that he placed appellant on a four-hour work schedule in April 2002
because movement made his lower back pain worse. Dr. Baum removed appellant from work in
July 2003 to allow him to complete physical therapy for his neck and lower back pain. He
5

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

6

Mary A. Lowe, 52 ECAB 223, 224 (2001).

7

James F. Weikel, 54 ECAB 690 (2003).

5

explained that, while appellant’s spondylosis and bilateral foraminal stenosis were preexisting
conditions, they could have been aggravated by his employment duties. This opinion is
speculative on the issue of causal relation. It is well established that speculative opinions are of
diminished probative value. Dr. Baum also found that appellant’s ability to function at work was
compromised by his spinal condition. However, he did not provide a probative medical opinion
as to whether appellant’s condition was caused by or a residual of his accepted employment
injury.
The Board finds that the Office met its burden of proof to establish that appellant had no
remaining disability or residuals related to his accepted employment injury.
LEGAL PRECEDENT -- ISSUE 2
Once the Office meets its burden of proof to terminate appellant’s compensation benefits,
the burden shifts to appellant to establish that he had disability causally related to his accepted
injury.8 He must submit rationalized medical evidence to establish the causal relationship
between his continuing disability and the employment injury.9 To be rationalized, the opinion
must be based on a complete factual and medical background of the claimant,10 and must be one
of reasonable medical certainty,11 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.12 Neither
the fact that a disease or condition manifests itself during a period of employment nor the belief
that the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.13
ANALYSIS -- ISSUE 2
Following termination of his benefits, appellant submitted a CT scan conducted on
June 19, 2006 that showed two ruptured discs in his lower back. He submitted no other medical
evidence. Though the record does not contain the image of the CT scan, the Board finds that this
evidence is insufficient to establish ongoing injury. The Board has held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.14 The CT scan does not explain the cause of
appellant’s disc ruptures. It is insufficient evidence to establish that appellant has ongoing
disability or residuals causally related to the accepted employment injury.

8

Manuel Gill, 52 ECAB 282 (2001).

9

Id.

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

John W. Montoya, 54 ECAB 306 (2003).

12

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

13

Ernest St. Pierre, 51 ECAB 623 (2000).

14

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

The Board finds that appellant did not meet his burden of proof to establish that he has
disability or residuals related to his accepted employment injury.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits,
effective February 20, 2005, on the grounds that he had no disability or residuals causally related
to his accepted employment injury of lumbosacral strain. The Board further finds that appellant
has not established that he continues to have disability or residuals related to his accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2006 is affirmed.
Issued: October 4, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, 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 over the merits of this case.3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 25, 2021 decision, OWCP received additional evidence. 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 his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
2

and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

4

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Dallas, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0626
Issued: October 19, 2018

Case Submitted on the Record

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

JURISDICTION
On January 26, 2018 appellant filed a timely appeal from two July 31, 2017 merit decisions
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 31, 2017, the date of OWCP’s last decision was
January 27, 2018. As this fell on a Saturday, appellant had until the following business day, Monday, January 29,
2018 to file the appeal. Since using January 30, 2018, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is January 26, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to a review
of evidence which was before OWCP at the time it issued its final decision. Thus, the Board is precluded from
reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,314.04 for the period October 16, 2016 through
April 29, 2017 based upon an adjustment of Federal Employees’ Group Life Insurance (FEGLI)
post-retirement basic life insurance (PRBLI); (2) whether appellant was at fault in the creation of
the $1,314.04 overpayment of compensation; (3) whether OWCP properly determined that the
$1,314.04 overpayment of compensation would be recovered by deducting $50.00 from
appellant’s continuing compensation benefits, every 28 days; (4) whether OWCP properly
determined that appellant received an overpayment of compensation in the amount of $31,660.00
for the period May 3, 2003 through April 29, 2017 due to a under withholding of PRBLI
premiums; (5) whether appellant was at fault in the creation of the $31,660.00 overpayment of
compensation; (6) whether OWCP properly determined that the $31,660.00 overpayment of
compensation would be recovered by deducting $200.00 from appellant’s continuing
compensation benefits, every 28 days.
FACTUAL HISTORY
On May 8, 2002 appellant, then a 50-year-old revenue officer group manager, filed an
occupational disease claim (Form CA-2) alleging neck pain and bilateral carpal tunnel syndrome
causally related to factors of her federal employment. On August 26, 2002 OWCP accepted her
claim for bilateral carpal tunnel syndrome.
OWCP paid appellant wage-loss compensation benefits on the periodic rolls commencing
November 5, 2002. Deductions from FECA benefits were made for optional life insurance (OLI),
$47.80 every 28 days commencing November 3, 2002. In a November 5, 2002 letter, OWCP
advised appellant, “If you have optional life insurance and/or health benefits coverage, but no
deduction for it is shown above, contact this office immediately. You are still responsible for these
premiums.”
In a letter to OWCP dated October 31, 2003, the Office of Personnel Management (OPM)
noted that it could not certify information about appellant’s health benefits and life insurance
coverage as she had elected to receive FECA benefits and the employing establishment had not
transferred the enrollment. It indicated that appellant was eligible to continue basic life insurance
(BLI) with no reduction and had elected additional optional, and family optional.
On August 19, 2016 OWCP notified appellant that she had the option to continue her OLI
Option B and Option C beyond age 65.
In letters dated December 19, 2016 and December 12, 2017, OPM indicated that appellant
was eligible to continue FEGLI with no reduction in basic, Option B, and Option C commencing
May 3, 2003. The commencement date for the PRBLI deduction was May 3, 2003. OPM
provided a form that appellant had completed on October 16, 2002 which indicated that she wished
to have PRBLI with no reduction, Option A, standard optional insurance, and Option B, additional
optional insurance. Appellant also selected Option C, family optional insurance with no reduction.
On November 29, 2016 appellant elected to freeze her Option B life insurance at the value as of
age 65.

2

Upon review of the fiscal record, OWCP determined that appellant received a $1,314.04
overpayment of compensation from October 16, 2016 through April 29, 2017, i.e., $187.72 OLI
premiums x 7 pay periods.
On June 16, 2017 OWCP notified appellant of its preliminary determination that an
overpayment of compensation in the amount of $1,314.04 was created for the period October 16,
2016 through April 29, 2017. It determined that the overpayment occurred “because you did not
notify [OWCP] that your optional life insurance stopped after the age 65 and your PRBLI was
adjusted.” OWCP found that she was at fault in the creation of this overpayment as she had
accepted a payment which she knew or should have known was incorrect. It provided the
calculations of appellant’s overpayment noting “because you did not notify [OWCP] that your
optional life insurance stopped after the age 65 and your PRBLI was adjusted” effective
October 16, 2016 after her OLI stopped. OWCP found that appellant’s deduction for OLI Option
B was $187.72 per 28-day wage-loss compensation pay periods, and that there were seven pay
periods during the overpayment period resulting in an overpayment of $1,314.04. It again directed
appellant to complete an overpayment recovery questionnaire (Form OWCP-20), and advised her
of her appeal rights.
Upon further review of the fiscal record, OWCP also determined that it had failed to deduct
the appropriate premiums for PRBLI beginning May 3, 2003.
On June 16, 2017 OWCP notified appellant of its preliminary determination that an
overpayment of compensation in the amount of $31,660.03 was created for the period May 3, 2003
through April 29, 2017 as she had elected to change her PRBLI effective May 3, 2003 and it had
failed to make proper insurance deductions from her continuing benefits. It noted that it advised
appellant in her November 5, 2002 payment of wage-loss compensation letter that, if she had OLI
or health benefits coverage, but no deduction was shown, to contact OWCP immediately. OWCP
found that she was at fault in the creation of the overpayment as she did not contact it when her
FEGLI deductions were not adjusted and therefore knew or should have known that her
compensation payments were incorrect.
OWCP provided a calculation of the amount of overpayment noting that appellant’s PRBLI
was $170.68 every 28 days from May 3, 2003 through December 17, 2011 or $6.10 per day,
resulting in 15 days multiplied by $6.10 from May 3 through 17, 2003 or $91.50, and 115 28-day
periods multiplied by $170.68 from May 18, 2003 through December 17, 2011 or $19,628.20. For
the single 28-day period from December 18, 2011 through January 14, 2012, the PRBLI was
$175.24, while from January 15, 2012 through August 23, 2014 the PRBLI was $179.81 multiplied
by 34 28-day periods or $6,113.54. For the period August 24, 2014 through December 12, 2015
the PRBLI was $154.01 multiplied by 17 28-day periods or $2,618.17, and for the single 28-day
period from December 13, 2015 through January 9, 2016 the PRBLI was $158.85. For the period
January 10, 2016 through April 29, 2017 the PRBLI was $169.09 multiplied by 17 28-day periods
or $2,874.53. OWCP added the various sums ($91.50 + $19,628.20 + $175.24 + $6,113.54 +
$2,618.17 + $158.85 + $2,874.53) to reach a total of $31,660.03 for the total overpayment of
compensation. It directed appellant to complete an overpayment recovery questionnaire, (Form
OWCP-20) and advised her of her appeal rights.

3

In a telephone call to OWCP on July 5, 2017, appellant alleged that she was not mentally
competent at all times. OWCP’s claims examiner requested medical documentation to support
this allegation.
By decision dated July 31, 2017, OWCP found that appellant had received an overpayment
of compensation in the amount of $1,314.04 for the period October 16, 2016 through
April 29, 2017. It determined that she was at fault in the creation of the overpayment as she had
accepted a payment which she knew or reasonably should have known was incorrect. OWCP
further determined that the overpayment would be recovered by withholding $50.00 from future
compensation payments, every 28 days, commencing August 20, 2017.
By a separate decision dated July 31, 2017, OWCP found that appellant had received an
overpayment of compensation in the amount of $31,660.03 for the period May 3, 2003 through
April 29, 2017. It determined that she was at fault in the creation of this overpayment as she had
accepted a payment that she knew or reasonably should have known was incorrect. OWCP further
determined that the overpayment would be collected by withholding $200.00 from appellant’s
continuing compensation payments, every 28 days, beginning August 20, 2017.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which the individual is entitled.5
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for a decision regarding whether appellant
received an overpayment of compensation in the amount of $1,314.04.
OWCP found that appellant was overpaid “because [she] did not notify [OWCP] that [her]
optional life insurance stopped after the age 65 and your PRBLI was adjusted.” In deciding matters
pertaining to a given claimant’s entitlement to compensation benefits, OWCP is required by statute
and regulation to make findings of fact.6 OWCP’s procedures further specify that a final decision
of OWCP “should be clear and detailed so that the reader understands the reason for the

4

5 U.S.C. § 8129.

5

20 C.F.R. §§ 10.434-10.437; J.L., Docket No. 18-0212 (issued June 8, 2018).

6
5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall
contain findings of fact and a statement of reasons. D.S., Docket No. 16-0712 (issued October 13, 2017).

4

disallowance of the benefit and the evidence necessary to overcome the defect of the claim.”7
These requirements are supported by Board precedent.8
The Board finds that OWCP did not adequately explain how an overpayment was created.
The Board noted that appellant’s OLI stopped after she reached 65 years old and her PRBLI was
adjusted effective October 16, 2016. The record, however, does not support this contention.
Rather, appellant had elected to continue her Option B OLI after age 65. The Federal (FECA)
Procedure Manual explains that the automatic payment system automatically stops all life
insurance deductions once the claimant reaches 65, unless as in this case, the claimant has elected
to “freeze” her optional insurance.9 It is unclear from OWCP’s decision whether an overpayment
resulted because appellant’s OLI deductions should have stopped and her PRBLI deduction should
have changed or whether her OLI deductions were inadvertently stopped through the automatic
payment system, resulting in an overpayment. Furthermore, OWCP alleged that the change in
appellant’s OLI resulted in an adjustment of her PRBLI. However, it did not explain how the
adjustment of her PRBLI was relevant to its overpayment calculation. OWCP merely noted the
amount of her OLI withholding for the period October 16, 2016 through April 29, 2017 and did
not address any aspect of her PRBLI election. Finally, in its separate overpayment decision
discussed infra, it provided the calculations for the under withholding of appellant’s PRBLI from
May 3, 2003 through April 29, 2017 which encompasses the period October 16, 2016 through
April 29, 2017 at issue in this $1,314.04 overpayment decision. The record does not provide a
basis for an additional change in appellant’s PRBLI withholding amount for the same period and
does not explain how this would result in an additional overpayment amount.
As such, the decision below does not contain findings of fact and a statement of reasons as
required pursuant to 20 C.F.R. § 10.126 for final OWCP decisions. Accordingly, the July 31, 2017
decision finding an overpayment of compensation in the amount of $1,314.04, shall be set aside
and the case is remanded to OWCP for further development regarding the claimed $1,314.04
overpayment of compensation.10 After this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.11
LEGAL PRECEDENT -- ISSUE 4
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance and one or more of the options.12 The coverage for basic life
insurance is effective unless waived,13 and premiums for basic and optional life coverage are
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
8

See D.S., Docket No. 16-0721 (issued October 13, 2017); James D. Boller, Jr., 12 ECAB 45, 46 (1960).

9

Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Life Insurance, Chapter 5.0401.8d (August 2004).

10

D.S., supra note 8.

11

In light of the Board’s disposition in Issue 1, Issues 2 and 3 are rendered moot.

12

5 U.S.C. § 8702(a).

13

Id. at § 8702(b).

5

withheld from the employee’s pay.14 Upon retirement or upon separation from the employing
establishment or being placed on the periodic FECA compensation rolls, an employee may choose
to continue basic and optional life insurance coverage in which case the schedule of deductions
made will be used to withhold premiums from his or her annuity or compensation payments.15
Basic insurance coverage shall be continued without cost to an employee who retired or began
receiving compensation on or before December 31, 1989.16 However, the employee is responsible
for payment of premiums for optional life insurance coverage which is accomplished by
authorizing withholdings from his or her compensation.17
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).18
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.19 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.20 When an under withholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.21

14

Id. at § 8707.

15

Id. at § 8706.

16

Id. at § 8707(b)(2).

17

Id. at § 8706(b)(3)(B). See S.P., Docket No. 17-1888 (issued July 18, 2018); Edward J. Shea, 43 ECAB 1022
(1992) (the Board found that claimant received an overpayment of compensation where he elected PRBLI with no
reduction and no premiums had been deducted from his compensation from January 3, 1988 to May 6, 1989). See
also Glen B. Cox, 42 ECAB 703 (1991) (the Board found that an overpayment of compensation was created due to no
deduction of premiums for optional life insurance for periods from July 1983 through November 1989).
18

See S.P., supra note 17; James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

19

5 C.F.R. § 870.504(a)(1).

20

Id. at § 870.504(b).

21

5 U.S.C. § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

6

FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.22 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.23
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $31,660.00 for the period May 3, 2003 through April 29, 2017.
The Board finds that OWCP presented adequate findings of fact and a statement of reasons
to support its determination that appellant received an overpayment of compensation in the amount
of $31,660.00 for the period May 3, 2003 through April 29, 2017. The record contains the signed
form appellant completed on October 16, 2002 which indicated her election of PRBLI with no
reduction.24 OWCP failed to properly deduct any premiums for PRBLI, thereby creating the
$31,660 overpayment. It explained to appellant how the overpayment occurred in its preliminary
determination of overpayment.25 Details were provided as to the 28-day premium that should have
been deducted during each pay period from May 3, 2003 through April 29, 2017.
On appeal, appellant disputed the amount of the overpayment. The Board finds that OWCP
provided a clear and detailed account of the fact and amount of the overpayment. As OWCP had
failed to deduct any PRBLI premiums for the period May 3, 2003 through April 29, 2017 appellant
was overpaid compensation benefits in the amount of $31,660.00. The Board finds that OWCP
properly determined the fact and amount of this overpayment.26
LEGAL PRECEDENT -- ISSUE 5
A waiver of recovery is not possible if the claimant is at fault in the creation of the
overpayment.27 A claimant who has done any of the following will be found to be at fault with
respect to creating an overpayment: (1) made an incorrect statement as to a material fact which he
or she knew or should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which he or she knew
or should have known to be incorrect. Whether or not an individual was at fault depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the

22

Id. at § 8102(a).

23

J.C., Docket No. 17-1791 (issued February 23, 2018).

24

Compare D.T., Docket No. 17-0901 (issued January 29, 2018) (finding that OWCP had not established an
overpayment without a signed form supporting the claimant’s selection of PRBLI).
25

L.K., Docket No. 17-1393 (issued March 20, 2018).

26

E.H., Docket No. 15-0848 (issued July 6, 2016).

27

P.H., Docket No. 13-0642 (issued August 12, 2013)

7

complexity of those circumstances and the individual’s capacity to realize that he or she is being
overpaid.28
ANALYSIS -- ISSUE 5
The Board finds that OWCP improperly found appellant at fault in the creation of the
overpayment of compensation in the amount of $31,660.00 for the period May 3, 2003 through
April 29, 2017.
In a November 5, 2002 letter, OWCP notified appellant that she had optional life insurance
and/or health benefits coverage, but if no deduction was shown to contact it immediately. It further
advised that she was still responsible for these premiums. OPM’s form dated October 16, 2002
confirmed appellant’s election of PRBLI, but withholdings did not commence until April 29, 2017.
Thereafter, OWCP found that appellant was at fault in the creation of the overpayment as she
accepted payments that she knew or should have known to be incorrect.
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment. According to OWCP procedures, a claimant should always be found
without fault if the overpayment results from the under withholding of health or life insurance
premiums, unless the claimant had actual knowledge of the calculation error.29 Under the
circumstances of this case, the Board finds that OWCP failed to establish that appellant actually
knew of the calculation error which resulted in the overpayment of compensation for the period
May 3, 2003 through April 29, 2017.30 Consequently, the case will be remanded so that OWCP
can consider whether she is entitled to waiver of recovery.31
CONCLUSION
The Board finds the case not in posture for decision with regard to whether OWCP properly
determined that appellant received an overpayment of compensation in the amount of $1,314.04
for the period October 16, 2016 through April 29, 2017. The Board further finds that OWCP
properly determined that appellant received an overpayment of compensation in the amount of
$31,660.00 for the period May 3, 2003 through April 29, 2017 due to a under withholding of
PRBLI. The case is in not in posture for a decision, however, with regard to whether OWCP
properly determined that appellant was at fault in the creation of the $31,660.00 overpayment of
compensation.

28

Id.

29

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.5(b)(1)(c) (June 2009).
30

Compare C.R., Docket No. 16-1241 (issued June 15, 2017) (the Board found that OWCP had established actual
knowledge by communications from appellant relative to the calculation error).
31
See P.H., supra note 27; J.L., Docket No. 13-132 (issued June 6, 2013). In light of the Board’s disposition in
Issue 5, Issue 6 is rendered moot.

8

ORDER
IT IS HEREBY ORDERED THAT the July 31, 2017 decision concerning the $1,314.04
overpayment of compensation is set aside. The July 31, 2017 decision concerning the $31,660.00
overpayment of compensation is affirmed in part and set aside in part. The case is remanded to
OWCP for further action consistent with this decision.
Issued: October 19, 2018
Washington, DC

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

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

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

9