United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 08-1035
Issued: September 25, 2008

Case Submitted on the Record

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

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from the March 14 and
December 10, 2007 nonmerit decisions of the Office of Workers’ Compensation Programs
denying his untimely request for reconsideration and finding that it failed to establish clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
September 28, 2005 and the filing of this appeal on February 25, 2008, the Board lacks
jurisdiction to review the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2) but has jurisdiction over the nonmerit issue.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On June 27, 2001 appellant, then a 49-year-old customer service manager, filed an
occupational disease claim attributing his anxiety with panic disorder to feeling overloaded with

work duties and responsibilities. He first became aware of his condition on October 29, 1999
and related it to his employment on November 2, 1999. Appellant stopped work on June 1, 2001
and returned to work on April 1, 2002. The Office accepted the claim for acute panic disorder on
November 24, 2003.1 On May 3, 2004 appellant filed claims for compensation (Form CA-7) for
wage loss due to a downgrade and use of leave without pay for the period June 2, 2001 to
April 16, 2004 with supporting time analysis forms.
By letters dated May 11, 2004, the Office informed appellant that his claim for wage-loss
compensation could not be processed as his claim was “being administratively closed.” In the
first letter, it also informed appellant that the medical evidence was insufficient to support his
claim for lost wages. In the second letter, appellant was informed that the claim forms could not
be processed because they were incomplete as they had not been signed by the employing
establishment.
In a letter dated May 28, 2004, appellant responded to the Office’s May 17, 2004 letters
and disagreed that his claim had been administratively closed.
On June 8, 2004 appellant filed a claim for compensation for leave without pay for the
period September 8, 2001 to March 23, 2002 and wage loss for a downgrade for the period
June 2, 2001 to the present. He also submitted a time analysis form for the period September 8,
2001 to March 23, 2002 claiming 1,138.39 hours of leave without pay on the grounds that the
employing establishment refused to accommodate him.
By letter dated June 17, 2004, appellant was informed the evidence of record was
insufficient to support his claim for compensation and a wage-earning capacity decision. He was
advised as to the type of evidence to submit and given 30 days to submit the requested
information.
By decision dated July 19, 2004, the Office denied appellant’s claim for wage-loss
compensation for the period June 2, 2001 to June 1, 2004.2 It also denied appellant’s request for
a loss of wage-earning capacity decision as a result of his being downgraded from his date-ofinjury job.
On July 21, 2004 appellant requested an oral hearing before an Office hearing
representative, which was held on July 12, 2005.
By decision dated September 28, 2005, an Office hearing representative affirmed as
modified the July 19, 2004 decision. She found the evidence sufficient to establish that appellant
was totally disabled for the period June 1 to July 31, 2001 and, thus, was entitled to wage-loss
compensation for this period. However, the Office hearing representative found that the record
was insufficient to establish that he was entitled to wage loss for total disability for the period
August 1, 2001 to April 2, 2002 and his request for a loss of wage-earning capacity decision.
1

The Office found the date of injury to be June 1, 2001, the date appellant stopped work.

2

The letter lists the date of injury as June 1, 2001, which is the date appellant stopped work and is noted on
subsequent Office letters and decisions.

2

In a letter dated September 26, 2006, appellant requested reconsideration and submitted a
September 25, 2006 affidavit by Jerry B. Johnston, Senior Manager Distribution Operations;
pages from a June 4, 2002 Merit Systems Protection Board hearing transcript and a transcript
from December 5, 2001 Office proceedings before an Office hearing representative.
By nonmerit decision dated October 17, 2006, the Office denied appellant’s request for
reconsideration.
In a letter dated December 22, 2006, appellant requested reconsideration. He noted that
he did not receive the September 28, 2005 hearing representative’s decision until January 2006.
Appellant noted that, while he had not submitted medical evidence with his prior request, he had
submitted relevant factual evidence.
By decision dated March 14, 2007, the Office found that appellant’s request was
untimely filed and failed to demonstrate clear evidence of error on the part of the Office in
denying his claim for wage-loss compensation and his request for a loss of wage-earning
capacity decision. It also noted that there was no evidence that appellant did not receive the
September 28, 2005 hearing representative’s decision until January 2006 as it was not mailed to
an incorrect address and was not returned.
In a letter dated October 15, 2007, appellant requested reconsideration and submitted a
December 21, 2006 report by Richard S. Schneiman, Ph.D., a clinical and consulting
psychologist, who attributed his disability to a panic attach occurring at work in the performance
of duty on October 29, 1999. Dr. Schneiman concluded that appellant was “medically disabled
from most positions that require supervising groups of employees or working in noisy stressful
environments.” He added that, under certain circumstances, appellant would be capable of
supervising but that as his doctor he would need to assess the position descriptions beforehand.
An appeal was filed with the Board; however, on November 29, 2007 the Board granted
appellant’s request to withdraw his appeal and issued an order dismissing appeal.3
By decision dated December 10, 2007, the Office found that appellant’s request was
untimely filed and failed to demonstrate clear evidence of error on the part of the Office in
denying his claim for wage-loss compensation and his request for a loss of wage-earning
capacity decision. Accordingly, it declined to review the merits of his claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the

3

Docket No. 07-1501 (issued November 29, 2007).

4

5 U.S.C. §§ 8101 et seq.

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application for reconsideration.5 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.6 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.7
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision.8 To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office.9 The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.10 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.11 This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. To show clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision. The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.12
ANALYSIS
The one-year time limitation begins to run the Office issued its September 28, 2005
decision, as this was the last merit decision in the case.13 Appellant’s latest requests for
reconsideration were dated December 22, 2006 and October 8, 2007. Because he filed his
requests more than one year after the Office’s September 28, 2005 decision merit decision,

5

20 C.F.R. § 10.605.

6

Id. at § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

Robert G. Burns, 57 ECAB 657 (2006).

9

Jack D. Johnson, 57 ECAB 593 (2006).

10

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

11

James R. Mirra, 56 ECAB 738 (2005).

12

See Alberta Dukes, supra note 10.

13

See V.B., 58 ECAB ___ (Docket No. 07-1320, issued September 26, 2007); Veletta C. Coleman, 48 ECAB
367 (1997).

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appellant must demonstrate clear evidence of error on the part of the Office in denying his
claim.14
The Board finds that appellant did not submit the type of positive, precise and explicit
evidence which manifests on its face that the Office committed an error in denying wage-loss
compensation during the claimed period of June 2, 2001 to June 1, 2004. The September 28,
2005 decision by an Office hearing representative affirmed as modified the denial of appellant’s
wage-loss claim. She found the evidence established that his total disability for the period June 1
to July 31, 2001 was due to his accepted employment injury, but that he had not established that
any subsequent disability was employment related and also denied the request for a loss of wageearning capacity determination.
Following the hearing representative’s decision, appellant submitted an affidavit
by Mr. Johnston, a June 4, 2002 transcript from a Merit Protection Systems Board hearing and a
transcript from a December 5, 2001 Office proceeding. This evidence submitted by appellant is
not medical in nature and thus is not relevant to the threshold issues as it did not provide any
opinion as to his condition during the claimed time period. Dr. Schneiman reported that
appellant was medically disabled from working in most supervisory positions and attributed this
disability to the accepted panic attack. The Board finds, however, that this report does not prima
facie shift the burden to the Office and does not raise a substantial question as to the correctness
of the Office’s decision that appellant was not disabled for work or had sustained a loss of wageearning capacity due to the accepted employment injury. Thus, appellant did not submit
evidence clearly showing that the Office’s determination was improper. The Board finds that
appellant has not demonstrated clear evidence of error on the part of the Office in issuing its
September 28, 2005 decision.
CONCLUSION
The Board finds that appellant’s untimely request for reconsideration did not contain the
necessary medical opinion evidence relevant to his claim to establish clear evidence of error on
the part of the Office.

14

20 C.F.R. § 10.607(b). See S.D., 58 ECAB ___ (Docket No. 07-1120, issued September 24, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 10 and March 14, 2007 are affirmed.
Issued: September 25, 2008
Washington, DC

Alec J. Koromilas, 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
__________________________________________
E.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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Appearances:
James Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1591
Issued: December 2, 2016

Case Submitted on the Record

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

JURISDICTION
On August 1, 2016 appellant, through counsel, filed a timely appeal from a May 23, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that an overpayment of
compensation in the amount of $6,237.45 was created; (2) whether OWCP properly found
appellant was at fault in creating the overpayment and therefore not entitled to consideration for
a waiver; and (3) whether OWCP properly found the overpayment should be recovered by
deducting $350.00 every 28 days from appellant’s continuing compensation.
FACTUAL HISTORY
On November 27, 2002 appellant, then a 54-year-old security screener, filed a traumatic
injury claim (Form CA-1) alleging that on November 15, 2002 she sustained injuries when a
chair in which she was sitting collapsed. OWCP has accepted the claim for: lumbar, cervical
and right wrist sprains; cervical spondylosis; displaced lumbar disc; lumbar degenerative disc
disease; and chronic pain syndrome. Appellant began receiving wage-loss compensation
commencing April 25, 2003, and was placed on the periodic rolls effective October 5, 2003. She
was paid at the augmented compensation rate which was based on 75 percent of her pay rate for
compensation purposes because she had a daughter, born on February 14, 1989.
As a requirement of receiving compensation on the periodic rolls OWCP regularly sent
appellant EN1032 forms requesting information with respect to employment, volunteer activity,
dependents, and receipt of other federal benefits. Appellant continued to claim her dependent as
a daughter. The EN1032 form provided a definition of dependent: “(a) a husband or wife who
lives with you; (b) an unmarried child, including an adopted child or stepchild, 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) an 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 form also
explains that a claimant with no dependents is paid compensation at 66 2/3 percent of the
applicable pay rate, while a claimant with at least one dependent is paid at 75 percent of the
applicable pay rate.
In the Form EN1032 signed on April 11, 2013, appellant reported her daughter would be
finished with school as of June 26, 2013. The record indicates, however, that she continued to
receive compensation after that date based on the augmented 75 percent rate. Appellant
continued to receive compensation every 28 days in the amount of $2,282.72 based on the
augmented rate.
On July 2, 2015 OWCP issued a preliminary determination of an overpayment in the
amount of $6,237.45 had been created. The overpayment period was June 27, 2013 to
June 27, 2015. OWCP indicated that appellant had been improperly paid at the 75 percent
augmented rate during this period. The amount actually paid was $56,405.40, while she should
have been paid $50,167.95 based on 66 2/3 of the pay rate for compensation purposes. OWCP
found appellant at fault in creating the overpayment. It indicated that she had signed EN1032
forms which established that she was not eligible for the augmented rate, and she thereafter
accepted payments she knew or should have known to be incorrect. Appellant was provided a
Form OWCP-20 overpayment recovery questionnaire to complete and return within 30 days.

2

On July 21, 2015 appellant, through counsel, requested a prerecoupment hearing before
an OWCP hearing representative. On the Form OWCP-20 appellant reported $3,141.72 in
monthly income. As to expenses, she listed approximately $3,344.00, which included $1,047.94
in monthly utilities. Appellant listed approximately $607.00 in cash and bank accounts. A
hearing was held on March 10, 2016. On April 7, 2016 she submitted bank account statements
from January to February 2016.
By decision dated May 23, 2016, the hearing representative finalized the preliminary
overpayment in the amount of a $6,237.45 overpayment of compensation. He found appellant at
fault in creating the overpayment and therefore not entitled to waiver. With respect to monthly
expenses, the hearing representative found that some expenses were unreasonable or not well
documented. He found the reasonable and documented expenses were: $909.85 mortgage,
$300.00 food, $200.00 clothing, and $763.95 for utilities, or $2,173.80 per month. Appellant’s
monthly income was found to be $3,062.54 based on compensation and Social Security
Administration (SSA) benefits. The recovery of the overpayment was set at $350.00, to be
deducted from each 28-day compensation payment.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8102 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. The basic rate of compensation paid under FECA is 66 2/3 percent of the injured
employee’s monthly pay. Where the employee has one or more dependents as defined under
FECA, the employee is entitled to have his or her basic compensation augmented at the rate of
8 1/3 percent for a total of 75 percent of monthly pay.3 Under 5 U.S.C. § 8110, a child is
considered a dependent if he or she is under 18 years of age, is over 18, but is unmarried and
incapable of self-support because of a physical or mental disability, or is an unmarried student,
as defined under section 8101(17). A student is defined as “an individual under 23 years of age
who has not completed four years of education beyond the high school level and who is regularly
pursuing a full-time course of study.…”4
If a claimant receives augmented compensation during a period in which he or she has no
eligible dependents, the difference between the compensation to which he or she was entitled at
the 2/3 compensation rate and the augmented compensation received at the 3/4 rate constitutes an
overpayment of compensation.5
ANALYSIS -- ISSUE 1
In the present case, appellant began receiving compensation in 2003 at the augmented
rate of 75 percent of her pay rate for compensation purposes. She claimed to have a daughter,
3

5 U.S.C. § 8110(b).

4

5 U.S.C. § 8101(17). The section notes that if the student’s 23rd birthday occurs during a semester or other
enrollment period, she is deemed a student until the semester or enrollment period ends.
5

See Ralph P. Beachum, Sr., 55 ECAB 442 (2004); see also K.S., Docket No. 15-0940 (issued
September 9, 2015).

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born February 14, 1989. Appellant’s daughter, therefore, would have turned 23 years of age on
February 14, 2012. To be considered a “student” the individual must be both under 23 years of
age and a full-time student. Appellant’s daughter’s status as a dependent, assuming she was a
full-time student on February 14, 2012, would have ceased at the end of that semester in 2012.6
Appellant did not claim any other dependents.
The Board finds that as of June 27, 2013, the commencement of the declared
overpayment in this case, appellant no longer was eligible to claim a dependent. She continued
to receive compensation, however, based on the augmented 75 percent rate through
June 27, 2015. An overpayment of compensation was created.
OWCP determined the amount of the overpayment by establishing the actual amount of
compensation received from June 27, 2013 to June 27, 2015, and subtracting the amount she
should have been paid at the 66 2/3 rate ($50,167.95). No contrary evidence was presented. The
Board therefore finds that OWCP properly found an overpayment of $6,237.45 was created in
this case.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”7 A claimant who is at fault in creating the overpayment is not entitled to waiver.8
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault because she accepted payments she knew or
should have known were incorrect. As the factual history indicates, appellant signed an EN1032
form on April 11, 2013. The form clearly explains that a dependent student must be under 23
years of age and a full-time student. In addition, the form indicates that a claimant with no
dependents is paid compensation at 66 2/3 of the applicable pay rate, rather than 75 percent.
Appellant’s daughter was 24 years old at the time appellant completed the April 11, 2013
EN1032 form. She indicated on the form that the daughter’s studies were ending on
June 26, 2013. Appellant accurately completed the EN1032. Thus, she knew or should have
known that she was no longer entitled to receive compensation based on the augmented rate after

6

Supra note 4.

7

5 U.S.C. § 8129(b).

8

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

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June 26, 2013. When appellant continued to accept the compensation payments based on 75
percent of her pay rate, she accepted payments she knew or should have known were incorrect.9
On appeal, counsel argues that appellant should not be at fault because she clearly
notified OWCP that her daughter’s studies were ending in June 2013. The Board also notes that
OWCP should have been aware of the daughter’s age, as appellant had consistently provided
such information. The finding of fault is not based on appellant’s failure to provide material
information or on what OWCP knew or should have known at the time it paid compensation
benefits. The issue is what appellant knew or should have known when she accepted
compensation payments after June 27, 2013.10 Even if appellant properly indicated on the
EN1032 form that she had no dependents, the form provides notice that she was not entitled to
receive compensation at the augmented rate when she no longer had a dependent child. The
Board has held that, although OWCP was provided accurate information regarding dependents
on the EN1032 form, a claimant is not excused from accepting payments that she knew or should
have been expected to know were incorrect.11 By signing the EN1032 forms, appellant had
notice that she was not entitled to compensation at the augmented rate. By continuing to accept
payments based on the augmented rate, she had accepted payments she knew or should have
known were incorrect.12
The Board accordingly finds that OWCP properly found appellant at fault in the creation
of the overpayment. Since appellant is at fault in the creation of the overpayment of
compensation, consideration of waiver of the recovery of the overpayment is not possible.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.13 20 C.F.R. § 10.441 provides:
“Whenever an overpayment has been made to an individual who is entitled to
further payments, the individual shall refund to OWCP the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, OWCP shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual, and other relevant
factors, so as to minimize any hardship.14
9

See G.M., Docket No. 15-0939 (issued April 13, 2016) (Form EN1032 provided information regarding
dependents and appellant should have known he could not receive augmented compensation after his daughter’s 18th
birthday).
10

Id.

11

See, e.g., K.S., supra note 5; T.B., Docket No. 12-0844 (issued September 19, 2012).

12

Id.

13

5 U.S.C. § 8129(a).

14

20 C.F.R. § 10.441.

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ANALYSIS -- ISSUE 3
In the present case, appellant submitted a Form OWCP-20 and bank account statements.
The hearing representative reviewed the evidence of record. With respect to expenses, he
explained that the reasonable and documented expenses were: $909.85 mortgage, $300.00 food,
$200.00 clothing, and $763.95 for utilities, or $2,173.80 per month. Appellant’s monthly income
was reported at $3,062.54, based on compensation and SSA benefits. The hearing representative
concluded that appellant could repay the overpayment by deducting $350.00 per month from her
continuing compensation.
The Board finds that OWCP properly considered the relevant factors under 20 C.F.R.
§ 10.441. OWCP procedures indicate that the hearing representative should evaluate the
claimant’s financial information and establish the highest reasonable rate of repayment which
will collect the debt promptly and at the same time minimize any hardship to the claimant.15 The
hearing representative considered the financial information submitted and reasonably found the
overpayment of compensation could reasonably be recovered by deducting $350.00 from
continuing compensation. The Board finds that OWCP properly determined the recovery of the
overpayment in this case.
CONCLUSION
The Board finds that OWCP properly found an overpayment of compensation in the
amount of $6,237.45. The Board further finds that OWCP properly found appellant was at fault
with respect to the overpayment, and therefore not entitled to consideration for waiver of
recovery. The Board further finds that OWCP properly determined the overpayment could be
recovered by deducting $350.00 from continuing compensation.

15

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(d) (June 2009).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2016 is affirmed.
Issued: December 2, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1000
Issued: November 12, 2019

Case Submitted on the Record

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

JURISDICTION
On April 8, 2019 appellant, through counsel, filed a timely appeal from an October 9, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed beginning
on the day following the date of OWCP’s 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 October 9, 2018, the date of
OWCP’s last decision, was April 7, 2019, which is a Sunday. Pursuant to 20 C.F.R. § 501.3(f)(2), when the last day
of the period so computed is a Saturday, Sunday, or Federal holiday, the period runs to the close of the next business
day, which would be Monday, April 8, 2019. The appeal was received on Monday, April 8, 2019, rendering it timely.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to his accepted August 4, 2014 employment incident.
FACTUAL HISTORY
On August 19, 2014 appellant, then a 43-year-old park ranger, filed a traumatic injury
claim (Form CA-1) alleging that, on August 4, 2014, he sustained an injury to his right arm and
shoulder while in the performance of duty. He maintained that the injury occurred when he was
bench pressing weights during an efficiency battery test required by his job.5 Appellant did not
stop work at that time.
On November 10, 2014 Dr. Mark Kurd, a Board-certified orthopedic surgeon, performed
an unauthorized anterior cervical and discectomy surgery at C5-6 and C6-7.
By decisions dated March 27, 2015 and May 2, 2016, OWCP denied appellant’s claim for
an August 4, 2014 employment injury because, although he had established the occurrence of the
August 4, 2014 employment incident as alleged, he did not meet his burden of proof by submitting
medical evidence sufficient to establish an injury causally related to the accepted employment
incident.
OWCP had referred appellant to Dr. Steven Valentino, a Board-certified orthopedic
surgeon, for a second opinion examination and requested that he provide an opinion regarding
whether appellant sustained an injury causally related to his accepted August 4, 2014 employment
incident. In a February 10, 2015 report, Dr. Valentino determined that appellant did not sustain
an injury causally related to his August 4, 2014 employment incident. He found that appellant’s
continuing problems were due to the underlying degenerative disc disease of his cervical spine. In
a December 4, 2015 report, Dr. Kurd determined that the August 4, 2014 employment incident
aggravated appellant’s preexisting degenerative disc disease with associated upper extremity
radiculopathy. OWCP later requested a supplemental report from Dr. Valentino in order to clarify
his February 10, 2015 report, and he prepared a March 22, 2016 report in which he again opined
that appellant did not sustain an injury causally related to his August 4, 2014 employment incident.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the October 9, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
5
Appellant initially claimed injury to his right shoulder, but later maintained that he also sustained a cervical injury
on August 4, 2014.

2

On May 13, 2016 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review, which was held on January 12, 2017.
By decision dated March 29, 2017, OWCP’s hearing representative determined that there
was a conflict in the medical opinion evidence between Dr. Valentino and Dr. Kurd regarding
whether appellant sustained injury due to the accepted August 4, 2014 employment incident and
remanded the case to OWCP for further development including referral to an impartial medical
specialist. On remand OWCP referred appellant to Dr. Richard G. Schmidt, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion regarding the matter. It
provided Dr. Schmidt with a detailed list of questions to be answered.
In a June 28, 2017 report, Dr. Schmidt discussed appellant’s factual and medical history
and detailed the findings of his physical examination. He noted that on August 12, 2014, which
would have been eight days after the August 4, 2014 employment incident, a medical examination
indicated tenderness in appellant’s right scapular area and right shoulder area with a restriction of
motion. The impression at that time was trapezius strain/sprain. Dr. Schmidt indicated that he
reviewed the history of the August 4, 2014 employment incident with appellant and noted that
appellant reported that he did not slip or lose control of the weights he was lifting. He advised that
an August 13, 2014 report indicated that x-rays of the cervical spine showed no acute bony
abnormalities, but loss of the normal cervical lordosis and degenerative disc disease with anterior
osteophytes involving the C5-6 level.
Dr. Schmidt indicated that Dr. Kurd had opined that an August 14, 2014 magnetic
resonance imaging (MRI) scan demonstrated a congenital cervical stenosis. Appellant had a disc
osteophyte complex at C5-6 and C6-7 which at C5-6 caused compression of the C6 nerve root and
at C6-7 caused some central stenosis. Dr. Schmidt indicated that this was an important piece of
information because a disc osteophyte complex at C5-6 and C6-7 was a chronic degenerative
change. He noted that an October 10, 2014 MRI scan showed cervical stenosis with radiculopathy
and opined that these findings were chronic and degenerative in nature and did not provide an
indication of an acute cervical disc herniation. Dr. Schmidt noted that an August 14, 2014 MRI
scan showed spondylosis and degenerative disc disease of the cervical spine made worse by
congenital cervical spinal canal stenosis. He advised that his impression was that appellant clearly
had a chronic degenerative condition of the cervical spine and noted, “I cannot correlate the
procedure that was done to the episode of August 4, 2014.” Dr. Schmidt opined that the
November 10, 2014 cervical surgery was indicated because appellant was developing symptoms
of myelopathy which had since been corrected.
By decision dated August 24, 2017, OWCP determined that appellant did not meet his
burden of proof to establish an injury causally related to his accepted August 4, 2014 employment
incident. It found the special weight of the medical evidence rested with the June 28, 2017 report
of Dr. Schmidt, the impartial medical specialist.
On August 29, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review.
Prior to hearing being held, OWCP’s hearing representative issued a January 3, 2018
decision by which the August 24, 2017 decision was set aside. She remanded the case to OWCP

3

for further development of the medical evidence. The hearing representative determined that it
was necessary for Dr. Schmidt to provide a supplemental report because he did not adequately
address all of the questions posed by OWCP in its referral. She indicated that Dr. Schmidt should
be advised that the fact that appellant’s cervical degeneration might have been preexisting did not
necessarily preclude him from receipt of benefits under FECA and that it is not necessary to prove
a significant contribution of employment factors to a condition for the purpose of establishing
causal relationship. Rather, if the medical evidence revealed that an employment factor
contributed in any way to the employee’s condition, such condition would be considered
employment related under FECA. The hearing representative noted that Dr. Schmidt primarily
referenced appellant’s cervical degeneration, but indicated that he must also address the other
diagnoses of record including cervical stenosis, spondylosis, radiculopathies, and disc herniations.
She maintained that Dr. Schmidt must specifically explain what effect, if any, the August 4, 2014
employment incident had on these conditions.6 The hearing representative indicated that
Dr. Schmidt must review both the opinions of Dr. Kurd and Dr. Valentino and address any points
of disagreement with their opinions. After carrying out this development, OWCP was to issue a
de novo decision regarding appellant’s claim for an August 4, 2014 employment injury.
On January 31, 2018 OWCP requested that Dr. Schmidt provide a supplemental report
which addressed the concerns expressed by OWCP’s hearing representative in her January 3, 2018
decision.
In a February 28, 2018 supplemental report, Dr. Schmidt indicated that he had reviewed
the additional evidence that OWCP provided him, including July 5, 2013 and August 18, 2016
MRI scans of the right shoulder, x-rays of the cervical spine obtained between August 17, 2016
and January 20, 2017, and an August 18, 2016 MRI scan of the cervical spine. He noted that
appellant had a chronic long-standing degenerative condition of his cervical spine. Dr. Schmidt
opined that appellant’s November 10, 2014 cervical surgery was indicated because he was
developing myelopathy symptoms, but advised that he could not correlate this surgery to the
August 4, 2014 employment incident. He maintained that he saw no evidence that the August 4,
2014 employment incident resulted in any direct cause, aggravation, acceleration, or precipitation
of the diagnoses of cervical disc degeneration at C5-6 and C6-7, cervical stenosis, cervical
spondylosis, or herniated discs at C5-6 and C6-7 with radiculopathies.
Dr. Schmidt indicated that the August 18, 2016 MRI scan of the cervical spine
demonstrated multilevel disc degenerative disease, greatest at C5-6 where there was a central disc
protrusion deforming the cord, and bilateral moderate-to-marked neuroforaminal stenosis at C7T1. He opined that these findings would constitute degenerative changes. Dr. Schmidt indicated
that it was clear from the July 5, 2013 MRI scan of the right shoulder that, prior to the August 4,
2014 employment incident, appellant had a low-lying acromion with a high-grade intrasubstance
tear and low-grade intrasubstance tear of the infraspinatus tendon at the critical zone. He advised
that a high-grade intrasubstance tear at the insertional supraspinatus tendon (meaning dimensions
of 12 by 10 millimeters) would be a lesion that typically would be addressed with surgical
6

The hearing representative indicated that Dr. Schmidt should be provided an opportunity to review certain medical
evidence before rendering his supplemental opinion, including July 5, 2013 and August 18, 2016 MRI scans of the
right shoulder, x-rays of the cervical spine obtained between August 17, 2016 and January 20, 2017, and an August 18,
2016 MRI scan of the cervical spine.

4

intervention. Dr. Schmidt noted, “Thus, I do not believe that the medical evidence supports a
work[-]related right shoulder injury.”
By decision dated March 9, 2018, OWCP denied appellant’s claim for an injury due to his
accepted August 4, 2014 employment incident. It determined that the special weight of the
medical opinion evidence with respect to this matter rested with the June 28, 2017 and
February 28, 2018 reports of Dr. Schmidt, the impartial medical specialist.
On March 13, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on August 6,
2018, counsel argued that Dr. Schmidt’s supplemental report dated February 28, 2018 did not
sufficiently address the concerns raised in the January 3, 2018 decision of OWCP’s hearing
representative.
By decision dated October 9, 2018, OWCP’s hearing representative affirmed the March 9,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,7 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.10 The second component is whether the employment incident caused a personal injury.11
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

11

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

5

nature of the relationship between the diagnosed condition and the specific employment incident.12
Neither the mere 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
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”14 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.15
ANALYSIS
The Board finds that the case is not in posture for decision.
The Board finds that OWCP properly determined that there was a conflict in the medical
opinion evidence between Dr. Kurd, an attending physician, and Dr. Valentino, an OWCP referral
physician, regarding whether appellant sustained an injury due to the accepted August 4, 2014
employment incident. OWCP properly referred appellant to Dr. Schmidt for an impartial medical
examination and an opinion regarding the matter.16
In a situation where OWCP secures an opinion from an impartial medical examiner for the
purpose of resolving a conflict in the medical opinion evidence and the opinion from such
examiner requires clarification or elaboration, OWCP has the responsibility to secure a
supplemental report from the examiner for the purpose of correcting the defect in the original
opinion.17 If a given impartial medical specialist is unable to clarify or elaborate on his or her
original report or if his or her supplemental report is also vague, speculative, or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second impartial
specialist for the purpose of obtaining his or her rationalized medical opinion on the issue.18
With regard to the initial referral action, Dr. Schmidt produced a June 28, 2017 report in
which he determined that appellant did not sustain an injury causally related to his accepted
12

S.S., Docket No. 18-1488 (issued March 11, 2019).

13

J.L., Docket No. 18-1804 (issued April 12, 2019).

14

5 U.S.C. § 8123(a).

15
D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
16

See supra note 15.

17

S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

18

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071, 1078 (1979).

6

August 4, 2014 employment incident. By decision dated January 3, 2018, a representative of
OWCP’s Branch of Hearings and Review remanded the case to OWCP for further development of
the medical evidence. She determined that it was necessary for Dr. Schmidt to provide a
supplemental report because he did not adequately address all of the questions posed by OWCP in
its referral. The hearing representative noted, inter alia, that Dr. Schmidt primarily referenced
appellant’s cervical degeneration, but indicated that he must also address the other diagnoses of
record including cervical stenosis, spondylosis, radiculopathies, and disc herniations. She
maintained that Dr. Schmidt must specifically explain what effect, if any, the August 4, 2014
employment incident had on these conditions. The hearing representative indicated that
Dr. Schmidt must review both the opinions of Dr. Kurd and Dr. Valentino and address any points
of disagreement with their opinions.
OWCP then requested that Dr. Schmidt provide a supplemental report addressing these
concerns. He prepared a February 28, 2018 report in which he again determined that appellant did
not sustain an injury causally related to his accepted August 4, 2014 employment incident. The
Board has reviewed both Dr. Schmidt’s June 28, 2017 and February 28, 2018 reports and notes
that Dr. Schmidt’s February 28, 2018 supplemental report did not adequately address the concerns
raised by OWCP’s hearing representative. In both reports, Dr. Schmidt concluded that appellant
had degenerative disc disease of the cervical spine that was not aggravated by the August 4, 2014
employment incident. However, he did not adequately discuss the nature of the August 4, 2014
employment incident and whether it was related to the preexisting conditions. In addition,
Dr. Schmidt did not adequately respond to the instruction to review both the opinions of Dr. Kurd
and Dr. Valentino and address any points of disagreement with their opinions.
For the above-described reasons, the opinion of Dr. Schmidt is still in need of clarification
and elaboration, despite the fact that OWCP had requested and received a supplemental report
from him. Therefore, in order to resolve the continuing conflict in the medical opinion evidence,
the case shall be remanded to OWCP for referral of appellant to a new impartial medical specialist
for examination and an opinion regarding whether he sustained injury causally related to the
accepted August 4, 2014 employment incident.19 After such further development as OWCP deems
necessary, a de novo decision shall be issued regarding this matter.
CONCLUSION
The Board finds that the case is not in posture for decision.

19

See supra notes 18 and 19.

7

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: November 12, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, East Elmhurst, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

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

Docket No. 18-0092
Issued: April 2, 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 October 16, 2017 appellant filed a timely appeal from a September 19, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,297.65 during the period June 15 through July 22, 2017 because she returned to
work, but continued to receive FECA wage-loss compensation; and (2) whether appellant was at
fault in the creation of the overpayment and thus precluded from waiver of recovery.

1

5 U.S.C. § 8101 et seq.

On appeal appellant challenges the findings of an overpayment, as she notes that she did
not return to work until August 7, 2017. She also alleges that she completed the overpayment
action papers and timely submitted them to OWCP. Appellant attached a copy of these
documents to her appeal.2
FACTUAL HISTORY
On November 10, 2016 appellant, then a 33-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she stepped back with her left leg when
boxing with a classmate, heard her left knee pop, and fell. On December 8, 2016 OWCP
accepted her claim for lateral dislocation of the left patella. On February 22, 2017 it expanded
acceptance of the claim to include loose bodies in left knee. OWCP paid appellant wage-loss
compensation on the periodic rolls, effective January 9, 2017.
At the time of her injury, appellant’s Form CA-1 indicated that she was working in East
Elmhurst, New York. However, appellant’s mailing address was a post office box in Orlando,
Florida. A note in OWCP’s file, received on December 8, 2016, indicated that appellant was a
new hire from Florida and was in New Jersey undergoing initial training. The note indicated that
appellant would be cleared for full-time limited duty in Florida after undergoing knee surgery,
scheduled for December 23, 2016.
Following her injury appellant received medical treatment in Orlando, Florida. In a
June 12, 2017 work capacity evaluation, Dr. David M. Foulk, appellant’s treating Board-certified
orthopedic surgeon, stated that appellant could work in a sedentary position for four hours a day
and should be able to return to work eight hours a day in six weeks. Appellant attended physical
therapy appointments in Florida from July 5 through 12, 2017.
The record contains OWCP Form CA-110 memoranda, memorializing telephone
conversations between OWCP’s claims examiner and the field nurse assigned to appellant’s care.
In a memorandum dated June 30, 2017, the claims examiner related that the field nurse was
concerned that appellant was stalling as she did not want to return to New Jersey where the air
marshal school was located. The field nurse indicated that the employing establishment offered
appellant a limited-duty position in New Jersey and that she was to report on August 1, 2017. A
June 30, 2017 memorandum to the field nurse from the claims examiner indicated that a 120-day
extension had been given to the field nurse regarding appellant’s care, to provide appellant the
opportunity to follow up on a new magnetic resonance imaging scan and to accept a job offer
beginning August 1, 2017. In a progress note of June 30, 2017, the field nurse indicated that
appellant had received a job offer with a start date of August 1, 2017 based on her most recent
work status. Another Form CA-110 telephone memorandum of August 10, 2017 from the field
nurse related that appellant had returned to work on August 7, 2017.
On August 16, 2017 OWCP issued a preliminary determination that appellant had been
overpaid in the amount of $3,297.65 because she had returned to part-time work with no wage
loss on June 15, 2017 and received compensation for total wage loss through June 24, 2017. By
2
Appellant submitted new evidence with her appeal. The Board’s jurisdiction is limited to the evidence that was
before OWCP at the time of its final decision. The Board is, therefore, precluded from considering this new
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

2

a correction letter of even date, it corrected appellant’s overpayment to run from June 15 through
July 22, 2017. OWCP further made a preliminary determination that appellant was at fault in the
creation of the overpayment, as she accepted a payment that she knew or reasonably should have
known to be incorrect. It provided appellant with an overpayment action request form and
overpayment recovery questionnaire (Form OWCP-20) for her completion. Appellant was given
30 days to respond.
By decision dated September 19, 2017, OWCP issued a final decision, finding that
appellant received an overpayment of compensation in the amount of $3,297.65. It further
determined that the preliminary finding that appellant was at fault in the creation of the
overpayment was correct and ordered recovery of the overpayment.
LEGAL PRECEDENT
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.4 A claimant is only entitled to receive wage-loss compensation due to
disability for those periods during which his or her work-related medical condition prevents him
or her from earning the wages earned before the work-related injury.5 OWCP procedures
provide that an overpayment in compensation is created when a claimant returns to work, but
continues to receive wage-loss compensation.6
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP determined that appellant received an overpayment of compensation in the
amount of $3,297.65 because she performed part-time work from June 15 through July 22, 2017
and she also received FECA compensation during this period. The record is devoid of evidence
establishing where appellant was employed for the overpayment period and what type of duties
she performed.
Dr. Foulk, appellant’s treating physician, did release appellant to work limited duty four
hours a day in his June 12, 2017 work capacity evaluation.7 However, there is no evidence in the
3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500.

6

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Action, Chapter 6.200.2(a) (May 2004).
7
There is no evidence of record that appellant was offered a modified job offer in writing, pursuant to Dr. Foulk’s
June 12, 2017 work restrictions, such that she would not be entitled to wage-loss benefits under 20 C.F.R.
§ 10.500(a).

3

record that appellant worked from June 15 through July 22, 2017, and there is considerable
evidence indicating that appellant did not work during this period of time. The position that
appellant was offered was in New York, but the record reflects that appellant received physical
therapy in Florida on June 15, 21, and 23 and again from July 5 through 12, 2017. Furthermore,
OWCP’s memorandum indicate that appellant was not expected to return to work until
August 1, 2017, and did not actually return to work until August 7, 2017. The evidence of record
therefore requires further development as to whether appellant actually performed part-time
work from June 15 through July 22, 2017 such that an overpayment of compensation was
created.
On remand OWCP shall further develop the record to determine whether appellant had
part-time earnings during the period June 15 through July 22, 2017.8
After such further development as necessary OWCP shall issue a de novo decision
regarding the relevant overpayment issues.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision dated September 19, 2017 is set aside,
and the case is remanded to OWCP for further consideration consistent with this opinion.
Issued: April 2, 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
8
In light of the disposition of this issue, the second issue, with regard to waiver of recovery of the overpayment,
is moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1908
Issued: April 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 2, 2014 appellant filed a timely appeal from a May 16, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The record also contains a
May 1, 2014 decision denying a request for prerecoupment hearing before an OWCP hearing
representative. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found appellant had a $5,246.27
overpayment of compensation; (2) whether OWCP properly denied waiver of the overpayment;
and (3) whether OWCP properly denied a prerecoupment hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal. OWCP accepted that appellant had
sustained bilateral knee strain, lumbar and cervical strains, and bilateral elbow contusions in the
performance of duty on February 28, 2003. Appellant stopped working on the date of injury and
began receiving wage-loss compensation as of April 22, 2003. As the Board noted, OWCP used
a pay rate for compensation purposes of $915.56 per week, based on an annual pay rate of
$42,808.00 plus night differential and Sunday premium pay.
On March 21, 2006 appellant’s compensation was terminated by decision of that same
date for refusal of suitable work. Following development of the evidence, on September 22,
2010 OWCP accepted major depression and pain disorder as employment related. On June 24,
2011 it retroactively paid compensation for wage loss commencing March 21, 2006. The weekly
rate of pay for compensation purposes was $882.51. The employing establishment indicated that
appellant’s date-of-injury pay rate was $42,588.00 annually, with an additional night differential
of $2,181.43, and $1,151.24 in Sunday premium pay.
On September 26, 2011 OWCP issued a preliminary determination that an overpayment
of $5,246.27 occurred from April 22, 2003 to March 20, 2006 due to an incorrect rate of pay. It
also found appellant was not at fault in creating the overpayment. On October 12, 2011
appellant requested a telephone conference with the district office on the issue of waiver. She
also submitted an OWCP-20 overpayment recovery questionnaire. OWCP finalized its
overpayment determination by decision dated January 9, 2012.
The Board issued an order remanding the case on December 12, 2012,2 finding that the
January 9, 2012 decision was premature, as appellant had requested a telephone conference and
submitted evidence. OWCP had failed to acknowledge the telephone conference request or
properly consider the evidence. The case was remanded for a telephone conference and proper
consideration of the evidence on waiver.
By letter dated July 29, 2013, OWCP requested that appellant complete a new OWCP-20
form and submit supporting financial documents regarding monthly income, expenses, and
assets. It indicated that a telephone conference would be held with respect to the preliminary
finding of an overpayment.
On August 12, 2013 appellant submitted an appeal request form requesting a
prerecoupment hearing with the Branch of Hearings and Review. She submitted an OWCP-20
form dated August 12, 2013 reporting $2,925.06 in household monthly income and $5,598.00 in
monthly expenses. As to assets, appellant reported $20.00 in cash, $50.00 in a checking account
and $2,500.00 in other personal property. She submitted additional financial evidence on
August 27, 2013. The evidence included insurance company statements addressed to appellant’s
spouse with respect to automobile insurance covering four vehicles: a 2000 Ford Expedition,
2003 Jeep Wrangler, 2004 Volkswagen Jetta, and 2006 Chevrolet Corvette.

2

Docket No. 12-1275 (issued December 12, 2012).

2

A telephone conference was held with an OWCP claims examiner on April 23, 2014.
The memorandum of the conference (Form CA-110) noted that appellant’s spouse had social
security disability benefits of $1,050.00 per month. The claims examiner also noted appellant
had insurance on four vehicles, but expenses would include only ordinary and necessary living
expenses.
By decision dated May 1, 2014, OWCP determined that appellant was not entitled to a
hearing with the Branch of Hearings and Review at this time. It indicated that the Board had
remanded the case for action by the district office.
By decision dated May 16, 2014, OWCP found an overpayment of $5,246.27 had been
created. It denied waiver of the overpayment. OWCP found that appellant’s assets exceeded the
maximum $8,000.00, stating “[t]he equity or full value of any of the 2 vehicles listed or the
lowest insurance premiums amounts ($370.10 and $381.20) would both bring the claimants total
asset base above $8,000.00.” No additional specific findings as to the value of the vehicles were
provided. OWCP found recovery of the overpayment would not defeat the purpose of FECA or
be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
Under 5 U.S.C. § 8101(2), “‘monthly pay’ means the monthly pay at the time of injury,
or the monthly pay at the time disability begins, or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is greater.…”
Section 8114(d) of FECA provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of
pay; or
(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for particular employment,
or the average thereof if the daily wage has fluctuated, by 300 if he
was employed on the basis of a 6-day workweek, 280 if employed
on the basis of a 5 1/2-day week, and 260 if employed on the basis
of a 5-day week.”
ANALYSIS -- ISSUE 1
The record establishes that for the period April 22, 2003 to March 20, 2006 appellant had
received compensation based on a pay rate of $915.56 per week. A September 23, 2003 pay rate
3

calculation, for the date of injury and date disability began, found that appellant had a base
annual salary of $42,808.00, or $823.23 per week. OWCP added $51.41 per week in night
differential pay, and $40.92 per week in Sunday premium pay.
The employing establishment had indicated on the claim form that appellant’s base salary
on the date of injury was $42,558.00. In a May 10, 2006 CA-7 form, the employing
establishment reported that the base salary on the date of injury was $42,558.00, and appellant
had earned $2,181.43 in night differential pay and $1,151.24 in Sunday premium pay in the year
prior to the date of injury. No contrary evidence was presented. OWCP properly found that
based on the probative evidence of record that appellant’s rate of pay was $882.51 per week.
As appellant was paid compensation based on a weekly pay rate for compensation
purposes of $915.56 instead of $882.51, an overpayment of compensation occurred. To
calculate the amount of the overpayment, OWCP compared the amount appellant had actually
received in wage-loss compensation for the period April 22, 2003 to March 20, 2006 to the
amount she should have received with a correct pay rate of $882.51. It found an overpayment of
$5,246.27 had occurred. No contrary evidence was presented. Appellant did not provide any
specific argument as to fact or amount of the overpayment. The Board therefore finds that the
evidence of record establishes an overpayment of $5,246.27 was created during the period
April 22, 2003 to March 20, 2006.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA3 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”4 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.5 For waiver under
the “defeat the purpose” of FECA standard, appellant must show that he needs substantially all
3

5 U.S.C. § 8101 et seq.

4

Id. at § 8129(b).

5

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).

4

of his current income to meet current ordinary and necessary living expenses, and that his assets
do not exceed the resource base.6
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; (b) the individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.
With respect to the consideration of appellant’s assets and the applicable resource base
amount, OWCP procedures state: “Non-Liquid Assets may include but are not limited to the fair
market value of an owner’s equity in property such as a camper, boat, second home and
furnishings/supplies, vehicle(s) (i.e., any vehicles above the two allowed per immediate family),
jewelry, and artwork.”7
ANALYSIS -- ISSUE 2
In the present case, OWCP made a determination that recovery of the overpayment would
not defeat the purpose of FECA. This determination was not based on excess income over
expenses, but on a finding that appellant’s assets exceeded the resource base of $8,000.00 for an
individual with a spouse. OWCP may, as noted above, include as assets the “fair market value of
an owner’s equity” in property that includes automobiles over the two allowed per immediate
family. In this case, it found that appellant had four automobiles, based on the insurance
premium statements in the record. OWCP determined that the value of any two of the vehicles,
including the vehicles with the lowest insurance premiums, would exceed the resource base of
$8,000.00.
While OWCP may include the value of vehicles over the two allotted per family, in this
case it did not support its findings with any evidence. It did not raise the issue with appellant to
properly determine the “owner’s equity” in the vehicles. As to the fair market value, OWCP did
not provide any specific documentation or evidence. It did not request evidence from appellant
as to the fair market value of any vehicle owned, or refer to any source or authority as to a fair
market value for a specific vehicle. OWCP cannot simply make its own estimate as to the value
of an asset, but must properly document its findings with relevant evidence.8
The Board accordingly finds that OWCP did not properly deny waiver of the
overpayment in this case. OWCP did not properly make findings as to the fair market value of
an owner’s equity in the automobiles. The case will be remanded to OWCP for proper findings
as to waiver of the overpayment.
6

See Robert E. Wenholz, 38 ECAB 311 (1986).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(4) (June 2009).
8

See Janis S. Wilson, Docket No. 04-760 (issued October 11, 2005) (hearing representative estimated the value of
a boat on his own without providing additional documentation or evidence as to the fair market value).

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LEGAL PRECEDENT -- ISSUE 3
A claimant may request a prerecoupment hearing within 30 days of the written notice of a
preliminary notice of an overpayment.9 The failure to request a hearing within the 30-day time
period constitutes a waiver of the right.10
ANALYSIS -- ISSUE 3
In the present case, appellant had requested a telephone conference with OWCP within
30 days of the September 26, 2011 preliminary overpayment determination. As the Board noted
in the prior appeal, she was entitled to a telephone conference. Following remand to OWCP, a
telephone conference was held on April 23, 2014.
With respect to a request for a prerecoupment hearing before a representative of the
Branch of Hearings and Review, appellant did not submit her hearing request until
August 12, 2013. This was not timely filed within 30 days of the preliminary overpayment
notice dated September 26, 2011. As noted above, failure to timely submit the request results in
a waiver of the right. The Board finds that OWCP properly found in its May 1, 2014 decision
that appellant was not entitled to a prerecoupment hearing with the Branch of Hearings and
Review.
CONCLUSION
The Board finds that OWCP properly found that an overpayment of compensation of
$5,246.27 was created from April 22, 2003 to March 20, 2006, due to an incorrect pay rate. The
Board further finds that OWCP did not make proper findings as to waiver of the overpayment.
With respect a prerecoupment hearing before the Branch of Hearings and Review, OWCP
properly denied the request.

9

20 C.F.R. § 432.

10

Id. See also R.C., Docket No. 14-1383 (issued December 5, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2014 is affirmed with respect to fact and amount of
overpayment, but set aside and remanded as to waiver. The May 1, 2014 decision is affirmed.
Issued: April 22, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
E.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Augusta, GA, Employer
__________________________________________

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

Docket No. 13-319
Issued: May 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 26, 2012 appellant, through her attorney, filed a timely appeal of an
October 19, 2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision
terminating her compensation benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective April 24, 2012 on the grounds that she refused an offer of
suitable work pursuant to 5 U.S.C. § 8106(c)(2).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 26, 2001 appellant, then a 46-year-old nurse, filed an occupational disease claim
alleging bilateral carpal tunnel syndrome due to continuously opening bottles of medication in
the performance of her job duties. OWCP accepted her claim for bilateral carpal tunnel
syndrome with surgical releases. Appellant underwent a left carpal tunnel release on
July 19, 2002. She underwent a right carpal tunnel release on October 11, 2002. By decision
dated December 12, 2006, OWCP granted appellant schedule awards for 14 percent impairment
of each upper extremity. Appellant returned to light-duty work. OWCP accepted her claim for
the additional condition of bilateral hand and wrist osteoarthritis on July 16, 2009.
Appellant underwent right thumb surgery on September 11, 2009. She requested wageloss compensation beginning September 11, 2009. On December 17, 2009 appellant underwent
surgery for degenerative arthritis in her left thumb. Her attending physician opined that she
would be totally disabled until April 1, 2010. Appellant did not return to work.
Appellant received information regarding disability retirement on March 16, 2010. In a
note dated March 23, 2010, Dr. John M. Downey, an osteopath, opined that she was totally
disabled due to several accepted claims including cervical sprain, concussion, lumbar sprain,
brachial neuritis, chronic pain syndrome, hand contusions, carpal tunnel arthritis, metatarsal
fracture, cervical sprain, lumbosacral neuritis, torn meniscus, hip contusion and enthesopathy.
Appellant underwent a functional capacity evaluation on May 28, 2010 which
demonstrated limited walking and standing, limited lifting, carrying and pulling, diminished
ability to pinch and grip, the inability to get up or down to the floor for kneeling and squatting
and limited fine motor hand tasks.
OWCP entered appellant on the periodic rolls on September 2, 2010. It referred her with
a statement of accepted facts, for a second opinion evaluation. The statement of accepted facts
listed 6 additional claims encompassing 18 additional accepted conditions. Dr. James Bethea, a
Board-certified orthopedic surgeon, examined appellant on January 3, 2011. He stated that, if
her only problem was her accepted conditions, which he listed as bilateral carpal tunnel
syndrome and bilateral hand and wrist osteoarthritis, she could return to light-duty work.
Dr. Bethea completed a work capacity evaluation and determined that appellant could work for
eight hours a day with restrictions, including no operating a motor vehicle, two hours each of
repetitive movements of the wrist, pushing, pulling and lifting up to 20 pounds. He completed a
supplemental report on April 18, 2011. Dr. Bethea reiterated that appellant was not totally
disabled and was capable of either light or sedentary work.
On March 23, 2011 the employing establishment offered appellant a position as a patient
services assistant which entailed sedentary work with some walking, bending, standing and
carrying light items as well as pushing record carts.
A conflict of medical opinion was found between Dr. Downey and Dr. Bethea.
On June 15, 2011 OWCP referred appellant and a statement of accepted facts listing all
her accepted conditions for an impartial medical examination to Dr. Henry Deriso, a Board-

2

certified orthopedic surgeon. In a report dated July 26, 2011, he examined appellant and noted
her numerous work injuries, including cervical spine surgery, right knee surgery and bilateral
carpal tunnel and metacarpocarpal arthritis surgeries. Dr. Deriso noted that appellant currently
described back pain with referred pain down her leg. He noted that back pain was appellant’s
primary complaint and stated that there were no objective findings to substantiate her inability to
perform light-to-moderate-duty work. Dr. Deriso completed a work capacity evaluation and
advised that appellant could work eight hours a day with restrictions on bending and stooping,
two hours a day, and pushing, pulling, 25 pounds and lifting for 10 pounds, four hours a day.
On September 21, 2011 appellant noted that she had been approved for disability
retirement and would be requesting benefits from the Office of Personnel Management (OPM).
The employing establishment offered appellant a light-duty position on September 21,
2011 as patient services assistant with some walking, bending, standing, carrying light items and
pushing record carts. The employing establishment stated, “All duties will be carried out within
your permanent restrictions; it is your responsibility not to exceed your restrictions while
performing your duties.” Appellant elected OPM benefits on September 26, 2011 effective
November 20, 2011.
In a letter dated January 25, 2012, OWCP informed appellant that the position of patient
services assistant was found suitable to her limitations. It allowed her 30 days to accept the
position or offer her reasons for refusal. On March 9, 2012 OWCP noted that appellant retired
on OPM disability, which was not a valid reason for refusing a suitable work position. It
allowed her 15 days to accept the suitable work position.
By decision dated April 24, 2012, OWCP terminated appellant’s entitlement to monetary
benefits on the grounds that she refused a suitable work position.
Appellant requested an oral hearing before an OWCP hearing representative on
May 22, 2012. She testified at the August 14, 2012 oral hearing that she requested disability
retirement in November 2010 and began receiving benefits in November 2011.
By decision dated October 19, 2012, the hearing representative found that, although
appellant elected a disability retirement after receiving the suitable work job offer, it was not a
justified reason for refusing a light-duty job offer. He affirmed the suitable work termination.
LEGAL PRECEDENT
It is well settled that, once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.2 As OWCP in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c),3 it must establish that she refused an offer of
suitable work. Section 8106(c) of FECA4 provides that a partially disabled employee who
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

5 U.S.C. §§ 8101-8193, 8106(c).

4

Id. at § 8106(c)(2).

3

refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee is not entitled to compensation. OWCP’s regulations provide that it shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter the finding of suitability. If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that he or she has 15 days in which to accept the offered
work without penalty.5
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.6 In
determining what constitutes suitable work for a particular disabled employee, OWCP considers
the employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.7 OWCP’s procedures state that acceptable reasons for refusing an offered
position include withdrawal of the offer or medical evidence of inability to do the work or travel
to the job.8
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel syndrome with resulting
surgical releases as well as bilateral hand and wrist osteoarthritis due to her employment. The
record also reveals that appellant had 6 additional claims encompassing 18 additional accepted
conditions. Dr. Downey advised that appellant was totally disabled due to cervical sprain,
concussion, lumbar sprain, brachial neuritis, chronic pain syndrome, hand contusions, carpal
tunnel arthritis, metatarsal fracture, cervical sprain, lumbosacral neuritis, torn meniscus, hip
contusion and enthesopathy. OWCP referred appellant for a second opinion evaluation with
Dr. Bethea, who opined that if her only problem was her accepted conditions of bilateral carpal
tunnel syndrome and bilateral hand and wrist osteoarthritis she could return to light work. It
found a conflict of medical opinion evidence and referred appellant to Dr. Deriso, for an
impartial medical examination.
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA. The statute
provides that, if there is disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination and resolve the conflict of medical evidence.9 This is called a
5

20 C.F.R. § 10.516.

6

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
7

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of a Job Offer, Chapter 2.814.5a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
9

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

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referee examination and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.10 The Board finds that, due to the
differing opinions on appellant’s disability between Dr. Downey and Dr. Bethea, OWCP
properly determined that there was a conflict of medical evidence.
Dr. Deriso examined appellant on July 26, 2011 and noted her numerous work injuries.
He stated that back pain was her primary complaint and stated that there were no objective
findings to substantiate her inability perform light-to-moderate-duty work. Dr. Deriso completed
a work capacity evaluation and indicated that appellant could work eight hours a day with
restrictions on bending and stooping, two hours a day, and pushing, pulling, 25 pounds, and
lifting for 10 pounds, four hours a day. The Board finds that Dr. Deriso’s opinion is entitled to
the special weight of the medical evidence accorded an impartial medical examiner. Dr. Deriso
based his evaluation on a proper factual background including all of appellant’s accepted
conditions and opined that she was capable of light-duty work.
The employing establishment provided appellant with a limited-duty position as a patient
services assistant on September 21, 2011. The employing establishment listed the duties of the
position as walking, bending, standing, carrying light items and pushing record carts. The
employing establishment stated that it was appellant’s responsibility not to exceed her
restrictions while performing her duties.
The Board finds, however, that the employing establishment did not provide sufficient
specificity in defining the physical requirements of appellant’s offered position. Dr. Deriso
specifically limited appellant to bending for no more than two hours a day, lifting no more than
10 pounds and pushing no more than 25 pounds. As noted above, a job offer must be in writing
and contain a description of the duties to be performed and the specific physical requirements of
the position.11 The position description of record included some bending, but did not define the
extent required, lifting of light items, weight undefined and pushing record carts of an undefined
weight. Rather, the employees noted it was appellant’s responsibility not to exceed her work
restrictions. Given that appellant has specific limitations on bending, lifting and pushing, the
Board finds that the position description is deficient and does not adequately set forth appellant’s
work restrictions as found by Dr. Deriso.12
As a penalty provision, section 8106(c)(2) must be narrowly construed.13 The medical
evidence does not clearly establish that the offered position was within appellant’s capabilities.
Consequently, OWCP did not discharge its burden of proof to support the termination of her

10

R.C., 58 ECAB 238 (2006).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.4(a) (December 1993).
12

See N.W., Docket No. 11-661 (issued July 6, 2012) (finding that, when the description of the offered position is
silent with respect to physical activities restricted by a physician, it cannot be found that the offered position is
suitable.)
13

A.M., Docket No. 12-1301 (issued March 14, 2013).

5

monetary compensation pursuant to section 8106(c)(2). The offered position fails to conform to
appellant’s work restrictions.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s monetary compensation
effective April 24, 2012 on the grounds that she refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 14, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
Bellevue, WA, Employer
__________________________________________

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

Docket No. 08-302
Issued: June 24, 2008

Case Submitted on the Record

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

JURISDICTION
On November 7, 2007 appellant filed a timely appeal from an October 22, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On August 7, 2007 appellant, then a 58-year-old safety specialist, filed a traumatic injury
claim alleging that he sustained stress on August 4, 2007 in the performance of duty. He related,
“I had open heart surgery and suffer from [a] sleep disorder and memory disorder. I had back

surgery which causes a lot of pain. Not being able to perform my job and the demands placed
upon me is causing a lot of stress. I suffer from anxiety and have panic attacks.”
On July 2, 2007 Dr. Peter R. Schmidt, Board-certified in emergency medicine, evaluated
appellant for chest pain. He attributed appellant’s symptoms to anxiety.
The Office informed appellant on September 11, 2007 that it had administratively
changed his claim to an occupational disease. The Office noted that it had previously denied a
claim for a heart condition, assigned file number 142061463. It requested that appellant provide
additional factual and medical information in support of his claim, including a detailed
description of the employment factors to which he attributed his condition.
On October 4, 2007 the employing establishment controverted appellant’s claim.
Cynthia L. Gibson, a team chief, noted that subsequent to his February 2007 heart surgery,
appellant experienced chest pain and left work in May 2007. Appellant also experienced
memory loss and sleep apnea. He requested accommodation but had not submitted medical
evidence that “addressed the impact of his condition to perform his current duties nor clearly
state how we could accommodate his medical conditions.” Ms. Gibson related that the
employing establishment reduced appellant’s workload. She asserted that he had not adequately
performed his duties since he started work in November 2006.
In a May 24, 2007 electronic mail message, appellant informed the employing
establishment that he experienced heart pain at work and went to the emergency room. He
requested light duty and advised that he intended to apply for disability retirement. Appellant
noted that he underwent open heart surgery on February 23, 2007 and did not feel that he could
perform his work duties. In electronic mail messages dated May 25, June 6 and 7, 2007, the
employing establishment requested clarification of his work restrictions. In a June 18, 2007
electronic mail message, appellant again indicated that he intended to apply for disability
retirement.
By decision dated October 22, 2007, the Office denied appellant’s claim on the grounds
that he did not establish that he sustained an injury in the performance of duty. The Office found
that the evidence showed that appellant experienced stress and anxiety due to his heart problems
rather than work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an

1

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

2

employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.3 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.4
ANALYSIS
On his claim form, appellant generally attributed his stress to open heart surgery, a sleep
disorder, a memory disorder and pain from back surgery. The record does not indicate that any
of these conditions have been accepted as employment related and thus any stress due to these
medical conditions does not constitute a compensable employment factor.
Appellant
additionally noted that he experienced stress because he was unable to perform his job duties.
Where a claimed disability results from an employee’s emotional reaction to his regular or
specially assigned duties or to an imposed employment requirement, the disability comes within
the coverage of the Act.5 Appellant, however, did not explain whether he experienced stress
performing his job duties or whether his stress arose because he was unable to work due to
nonemployment-related medical conditions.
Appellant failed to provide a description of the specific employment factors which he
alleged caused his emotional condition. The Office advised him in its September 11, 2007 letter
that he should submit a detailed factual statement describing the employment incidents alleged to
have caused his emotional condition. Appellant did not submit such a statement. A claimant’s
burden of proof includes the submission of a detailed description of the employment factors or
conditions which he or she believes caused or adversely affected the condition or conditions for
which compensation is claimed.6 As appellant failed to specifically identify the factors to which
he attributed his claimed condition, he has failed to establish an essential element of his claim.7
2

Gregorio E. Conde, 52 ECAB 410 (2001).

3

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

4

Id.

5

Robert Bartlett, 51 ECAB 664 (2000); Ernest St. Pierre, 51 ECAB 623 (2000).

6

Janet L. Terry, 53 ECAB 570 (2002); John Polito, 50 ECAB 347 (1999).

7

Appellant submitted new evidence with his appeal. The Board has no jurisdiction to review new evidence on
appeal; see 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request reconsideration under
5 U.S.C. § 8128.

3

CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2007 is affirmed.
Issued: June 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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