United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, WASHINGTON DULLES
INTERNATIONAL AIRPORT, Dulles, VA,
Employer
__________________________________________

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

Docket No. 08-1110
Issued: October 17, 2008

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated August 24, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment in
compensation in the amount of $18,054.21 was created for the period July 17, 2006 to May 12,
2007 because appellant continued to receive wage-loss compensation after his return to work;
and (2) whether the Office properly found that appellant was at fault in the creation of the
overpayment and, therefore, the overpayment was not subject to waiver.

FACTUAL HISTORY
On September 18, 2005 appellant, then a 47-year-old transportation security screener,
sustained an employment-related sprain/strain of his right rotator cuff while moving a suitcase at
work. He received continuation of pay and appropriate compensation. Appellant underwent
surgical repair on June 12, 2006 and was placed on the periodic rolls effective June 11, 2006. He
returned to full-time light duty on July 17, 2006. However, appellant continued to receive wageloss compensation until May 16, 2007.
By letter dated June 7, 2007, the Office issued a preliminary determination that appellant
received an overpayment in compensation in the amount of $18,054.21 for the period July 17,
2006 to May 12, 2007 because he received wage-loss compensation after he had returned to
work. It found him at fault in the creation of the overpayment because he knew or should have
known he was not entitled to wage-loss compensation after his return to work. On June 18, 2007
appellant submitted an overpayment questionnaire and financial information and requested a
decision on the written record. He stated that he thought he was entitled to receive wage-loss
compensation until April 2007 because he did not recall receiving a “catch-up” payment when
his claim was accepted and did not think he returned to work until October 2006.1 An
overpayment worksheet and computer printout show appellant returned to light duty on July 17,
2006 and continued to receive wage-loss compensation, and thus received an overpayment
totaling $18,054.21 for the period July 17, 2006 to May 12, 2007. Additional computer printouts
show appellant’s gross compensation for the period. Appellant was instructed to forward the full
amount of the overpayment to the Office.
On August 24, 2007 the Office finalized the preliminary determination that appellant was
at fault in creating the $18,054.21 overpayment because he continued to receive wage-loss
compensation after his return to work.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.2 Section
8116 of the Act defines the limitations on the right to receive compensation benefits. This
section of the Act 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.3 Section 10.500 of the Office’s regulations provides that “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related

1

A computer printout shows that on March 2, 2006 appellant was issued a check in the amount of $4,150.42 for
the period November 27, 2005 to February 4, 2006.
2

5 U.S.C. § 8102(a).

3

5 U.S.C. § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

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injury.”4 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work and continues to receive compensation.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation. The record
supports that he returned to work on July 17, 2006 and received wage-loss compensation through
May 15, 2007. As appellant was not entitled to compensation for the period after his return to
work, the amount of compensation that he received for the period July 17, 2006 through May 12,
2007 was an overpayment in compensation.6
The Board however finds that the case is not in posture for decision regarding the amount
of the overpayment. The record before the Board does not contain an explanation of the method
used in calculating the overpayment. The record contains an overpayment worksheet and
attached computer printout showing an overpayment of $18,054.21. There are, however,
additional computer printouts in the record that show that appellant received compensation from
July 17, 2006 through May 12, 2007 of approximately $18,935.33. As there is insufficient
evidence of record regarding how the amount of the overpayment was determined, the Board
will remand the case to the Office. It should provide documentation and an explanation
regarding the amount of compensation appellant received from July 17, 2006 through
May 15, 2007.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”7
Section 10.433(a) of the Office’s regulations provides that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
4

20 C.F.R. § 10.500.

5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).
6

W.F., 57 ECAB ____ (Docket No. 06-769, issued August 11, 2006).

7

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

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known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”8
To determine if an individual was at fault with respect to the creation of an overpayment,
the Office examines the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment because he knew
or should have known he was not entitled to wage-loss compensation for the period beginning
July 17, 2006 when he also worked. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she receives are proper,10 and the
recipient must show good faith and exercise a high degree of care in reporting events that may
affect entitlement to or the amount of benefits.11
By letter dated January 31, 2006, the Office clearly advised appellant that he was to
immediately inform the Office upon his return to work to avoid an overpayment in
compensation. If he worked during any period covered by a compensation payment, he was to
return the payment to the Office. Under these circumstances, appellant knew or should have
known that he could not receive wage-loss compensation during any period that he worked.12
Appellant returned to work on July 17, 2006 but did not immediately inform the Office or return
the compensation received for the period he worked. He acknowledged on the overpayment
questionnaire that he thought he had returned to work in October 2006 and was entitled to the
compensation he received. However, the evidence establishes that he returned to work on
July 17, 2006 and knew or should have known as of that time that he was not entitled to receive
wage-loss compensation and had the obligation to return the incorrect payments.13
Based on the evidence of record, the Board finds that appellant accepted compensation he
knew or should have known was incorrect. Under section 10.433(a) of the Office’s regulations,
he is properly found to be at fault pursuant to section 8129 of the Act and is not entitled to
waiver of the overpayment in compensation.

8

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

9

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

10

Danny E. Haley, supra note 3.

11

Sinclair L. Taylor, supra note 8.

12

Neill A. Dewald, 57 ECAB 451 (2006).

13

Id.

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CONCLUSION
The Board finds that the Office properly determined that appellant was at fault in the
creation of an overpayment in compensation and would thus not be entitled to waiver. The case
is not in posture for decision regarding the amount of the overpayment and is remanded for a
determination of the correct amount, to be followed by an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 24, 2007 be affirmed in part, vacated in part, and the case
remanded to the Office for proceedings consistent with this opinion of the Board.
Issued: October 17, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 11-971
Issued: November 17, 2011

Case Submitted on the Record

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

JURISDICTION
On March 9, 2011 appellant filed a timely appeal from a December 27, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) affirming denial of a
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 sustained a ratable hearing loss warranting a
schedule award; and (2) whether appellant was entitled to hearing aids.
FACTUAL HISTORY
On April 17, 2009 appellant, then a 55-year-old special agent, filed an occupational
disease claim alleging that he sustained binaural hearing loss as a result of prolonged exposure to
1

5 U.S.C. § 8101 et seq.

gunfire discharge. He was last exposed to industrial noise on February 6, 2009 and retired
effective May 1, 2009.
OWCP received several audiometric records. An August 8, 1991 audiogram exhibited
the following decibel (dBA) losses at 500, 1,000, 2,000 and 3,000 Hertz (Hz): 15, 15, 10 and 10
for the right ear and 20, 10, 5 and 10 for the left ear. At the same frequency levels, a July 9,
2004 audiogram showed dBA losses of 10, 10, 10 and 5 for the right ear and 5, 10, 10 and 15 for
the left ear while an August 3, 2005 audiogram noted dBA losses of 5, 15, 15 and 5 for the right
ear and 5, 0, 10 and 20 for the left ear.
At 500, 1,000, 2,000 and 3,000 Hz, a September 11, 2006 audiogram revealed dBA
losses of 5, 15, 20 and 5 for the right ear and 15, 10, 15 and 20 for the left ear whereas a
November 6, 2008 audiogram exhibited dBA losses of 5, 10, 15 and 5 for the right ear and 0, 0,
10 and 20 for the left ear.
A July 31, 2009 statement of accepted facts related that appellant worked for the
employing establishment from September 12, 1983 to May 1, 2009. During this period,
appellant was exposed to noise above 85 dBA generated by gunfire discharge in his roles as a
special agent, firearms instructor, range officer, group supervisor, policy analyst and task force
coordinator.
Appellant was referred for a second opinion examination to Dr. Joel J. Alexander, an
osteopath specializing in otolaryngology. In an August 18, 2009 report, Dr. Alexander reviewed
the statement of accepted facts and added that appellant was also exposed to loud helicopter
noise and experienced intermittent bilateral tinnitus. On examination, he did not observe any
physical abnormalities. Dr. Alexander pointed out that prior audiometric data showed binaural,
high-frequency sensorineural hearing loss above 4,000 Hz. An audiogram obtained on
August 18, 2009 exhibited the following dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 5, 10,
15 and 10 for the right ear and 0, 0, 5 and 30 for the left ear. Dr. Alexander diagnosed highfrequency sensorineural hearing loss secondary to acoustic trauma and opined that appellant’s
occupational noise exposure from 1982 to 2009 sufficiently caused his condition. In an
accompanying form report, he recommended hearing protections.
On September 4, 2009 OWCP’s medical adviser reviewed Dr. Alexander’s report and
agreed that appellant’s binaural hearing loss was due to occupational noise exposure. Applying
the standard provided by the American Medical Association, Guides to the Evaluation of
Permanent Impairment2 (hereinafter A.M.A., Guides) to the August 18, 2009 audiogram, he
determined that appellant had a nonratable hearing loss. The medical adviser noted that hearing
aids should not be authorized and identified August 18, 2009 as the date of maximum medical
improvement.
On September 9, 2009 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss. Appellant subsequently inquired about a schedule award and hearing aids.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

2

On April 15, 2010 appellant requested reconsideration and submitted additional medical
evidence. In an April 12, 2010 progress note, Dr. Eric C. Andrist, a Board-certified
otolaryngologist, related that appellant sustained job-related hearing loss and tinnitus as early
as 1991. He did not observe any major irregularities on examination while an April 12, 2010
audiogram revealed the following dBA losses at 500, 1,000, 2,000 and 4,000 Hz: 15, 20, 20 and
40 for the right ear and 15, 5, 5 and 60 for the left ear. The audiogram did not test for dBA loss
at 3,000 Hz. Dr. Andrist diagnosed binaural tinnitus and sensorineural hearing loss at 4,000 Hz
and cleared appellant to “try hearing aids.”
In an April 28, 2010 letter, OWCP informed appellant that there was no basis for a
reconsideration request as it had accepted his claim. It advised that it would consider his request
for a schedule award and hearing aids and issue a decision.
By decision dated May 10, 2010, OWCP denied appellant’s claim for a schedule award
on the grounds that the extent of hearing loss was not ratable. It also found that the weight of the
medical evidence did not support authorization of hearing aids.
A September 29, 2010 audiogram signed by an audiologist noted dBA losses of 25, 30,
35 and 40 for the right ear and 20, 20, 20 and 40 for the left ear at 500, 1,000, 2,000 and
3,000 Hz. The audiologist diagnosed binaural, high-frequency sensorineural hearing loss and
recommended hearing aids in an accompanying September 29, 2010 report.
Appellant requested a telephonic hearing, which was held October 12, 2010. He
contended that he was entitled to a schedule award and hearing aids based on the September 29,
2010 audiogram.
On December 27, 2010 the OWCP hearing representative affirmed the May 10, 2010
decision.3
LEGAL PRECEDENT -- ISSUES 1 & 2
FECA’s schedule award provision and its implementing regulations4 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

3

An OWCP hearing representative pointed out that the September 29, 2010 audiogram did not include a
certificate indicating that the audiological equipment met accreditation standards.
4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(13).

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all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is
determined by first calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.7
Following medical evaluation of a claim, if the hearing loss is determined to be
nonratable for schedule award purposes, other benefits such as hearing aids may still be payable
if any employment-related hearing loss exists.8
ANALYSIS -- ISSUES 1 & 2
Appellant filed a claim for binaural hearing loss and was referred to Dr. Alexander for a
second opinion examination. After reviewing the statement of accepted facts and medical file,
conducting a thorough physical evaluation and obtaining an audiogram on August 18, 2009,
Dr. Alexander diagnosed high-frequency sensorineural hearing loss due to industrial noise
exposure. OWCP medical adviser’s concurred with this finding. Appellant then submitted an
April 12, 2010 progress note and audiogram from Dr. Andrist. By decision dated May 10, 2010,
OWCP accepted appellant’s claim for bilateral sensorineural hearing loss, but denied a schedule
award and authorization for hearing aids. Following a telephonic hearing and receipt of an
audiologist’s September 29, 2010 report and audiogram, an OWCP hearing representative
affirmed the denial on December 27, 2010.
The Board finds that OWCP properly denied appellant’s schedule award claim. On
September 4, 2009 OWCP’s medical adviser applied the A.M.A., Guides standard for rating
hearing impairment to the August 18, 2009 audiogram. Appellant’s right ear recorded losses of
5, 10, 15 and 10 dBA. The total loss was 40 dBA. When divided by four, the result was an
average hearing loss of 10 dBA. The average hearing of 10 dBA was reduced by the fence of 25
dBA to 0 dBA. This figure was then multiplied by the established factor of 1.5, yielding zero
percent monaural impairment of the right ear. At the same frequency levels, appellant’s left ear
recorded losses of 0, 0, 5 and 30 dBA at 500, 1,000, 2,000 and 3,000 Hz, respectively. The total
loss was 35 dBA. When divided by four, the result was an average hearing loss of 8.75 dBA.
6

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

7

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

8

See F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, Medical Services
and Supplies, Chapter 3.400.3(d)(2).

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The average hearing of 8.75 dBA was reduced by the fence of 25 dBA to equal 0 dBA. This
figure was then multiplied by the established factor of 1.5, yielding zero percent monaural
impairment of the left ear. As the OWCP medical adviser properly determined that appellant did
not sustain a ratable hearing loss under OWCP’s standard for evaluating hearing loss, he was not
entitled to a schedule award.
Although appellant subsequently furnished audiograms dated April 12 and September 29,
2010, neither may be used to demonstrate that he sustained a ratable hearing impairment. The
April 12, 2010 audiogram reviewed by Dr. Andrist is incomplete as did not test for dBA loss at
3,000 Hz as required by the A.M.A., Guides.9 The September 29, 2010 audiogram, which was
prepared by an audiologist, does not constitute probative medical evidence as it was not certified
by a physician as accurate.10
The Board also finds that OWCP properly denied appellant’s request for hearing aids. As
noted, hearing aids and other medical benefits may still be payable if an employment-related
hearing loss exists. While OWCP is obligated to pay for medical treatment of a work-related
injury, the employee has the burden of establishing that the expenditure is incurred for treatment
of the effects of such injury. Proof of causal relationship must include supporting rationalized
medical evidence.11 In the present case, appellant did not meet his burden. In the April 12, 2010
progress note, Dr. Andrist simply remarked that appellant was cleared to “try hearing aids.” This
brief comment did not offer a clear, rationalized explanation demonstrating that hearing aids
were medically necessary due to the accepted condition.12 The audiologist’s September 29, 2010
report lacks probative medical value because an audiologist is not a physician under FECA.13 In
addition, Dr. Alexander did not indicate that hearing aids should be authorized and, in his
September 4, 2009 report, the OWCP medical adviser specifically opined that hearing aids were
not warranted. Therefore, appellant is not entitled to hearing aids.
On appeal, appellant reiterates that hearing aids are warranted in view of the medical
evidence. The weight of the medical evidence, however, does not support authorization of
hearing aids.
The Board notes that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.14 Appellant may request a schedule
9

See also Larry S. Robinson, Docket No. 04-1885 (issued December 3, 2004) at n. 12 (A.M.A., Guides standard
does not consider losses at frequencies at or above 4,000 Hz).
10

See R.B., Docket No. 10-1512 (issued March 24, 2011); Joshua A. Holmes, 42 ECAB 231 (1990) (OWCP does
not have to review audiograms not certified by a physician and it is the claimant’s burden to submit a properly
certified audiogram for review if he objects to the audiogram selected by OWCP for determining the degree of
hearing loss). See also 5 U.S.C. § 8101(2) (defines the term “physician”); infra note 13.
11

See Charlie A. Penney, Docket No. 04-1432 (issued October 5, 2004).

12

See id.

13

T.B., Docket No. 09-1504 (issued April 12, 2010). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(medical opinion, in general, can only be given by a qualified physician).
14

20 C.F.R. § 501.2(c).

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award based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not sustain a ratable hearing impairment entitling him
to a schedule award. The Board also finds that he was not entitled to hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
West Paducah, KY, Employer
__________________________________________

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

Docket No. 18-1011
Issued: March 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 17, 2018 appellant filed a timely appeal from a February 22, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On February 22, 2017 appellant, then a 62-year-old boilermaker, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral hearing loss due to factors of his
federal employment. He noted that he first became aware of his hearing loss on March 30, 2015
1

5 U.S.C. § 8101 et seq.

and first realized its relation to his federal employment on March 15, 2016. Appellant retired from
the employing establishment on March 31, 2017.
In a February 27, 2017 development letter, OWCP advised appellant of the type of
evidence needed to establish his claim and provided a questionnaire for his completion. It afforded
him 30 days to submit the requested information. In a separate letter of even date, OWCP
requested that the employing establishment address the accuracy of appellant’s allegations and
describe his workplace exposure to hazardous noise.
OWCP subsequently received a statement wherein appellant related his employment
history. Appellant noted that he had worked as a boilermaker at various locations from 1995 to
the present, with intermittent breaks in employment. He indicated that he worked in the
powerhouse basement around hazardous noise and loud machinery including: changing heads and
gaskets; flushing coolers; fixing leaks on boiler feed pumps; changing belts on primary air fans;
changing pulverizer balls; replacing links on drag chains; repairing steam leaks on steam lines and
soot blowers; and using grinders, cut off saws, needle guns, jitterbug, shear, ironworker,
jackhammers, and hydraulic presses in the shop area. Appellant further indicated that he had no
previous hearing problems and noted occasional hunting as a hobby. He attributed his hearing loss
to his federal employment on March 15, 2016 when his ears began to ring continuously and he had
to progressively increase the volume on the television.
The employing establishment subsequently provided appellant’s employment history for
intermittent dates from November 21, 1987 to December 2016. Its medical records from
September 24, 1981 to June 30, 2000 noted an initial employment examination, yearly physical
examinations, and treatment for burns and cuts.
In an audiometric evaluation dated April 26, 2000, appellant reported nonoccupational
activities of hunting and shooting for 40 years, and exposure to loud music, home power tools,
home tractor and machinery, power boats, and motorcycles over a 20-year period. In a medical
examination record dated June 30, 2000, he indicated that he had a history of hearing loss in his
right ear.
The employing establishment referred appellant to Dr. Whitney R. Mauldin, an audiologist,
for an audiological examination. In a report dated April 26, 2017, Dr. Mauldin indicated that he
had a history of federal employment for various periods from September 1981 to December 1991
and from June 2000 to March 2017. From December 1991 to June 2000, appellant worked in
nonfederal employment. Dr. Mauldin opined that he did not meet the criteria to establish that his
hearing loss was causally related to exposure to noise at work. She noted that appellant’s baseline
hearing examination was performed on December 19, 2001. Dr. Mauldin summarized the results
of audiograms obtained from December 19, 2001 to March 31, 2017. She noted that appellant
reported using hearing protection from April 5, 2009 to March 31, 2017 in the form of push-in
devices, ear soft plugs, ear express pod plugs, ultra-fit plugs, and ear soft super fit plugs.
Dr. Mauldin described his nonoccupational noise exposure, including exposure to firearms, chain
saws, farm machinery, power tools, and noise exposure at another company for various dates from
2009 to 2016.

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By decision dated May 5, 2017, OWCP denied the claim finding that the factual evidence
of record was insufficient to establish that the alleged employment factors occurred as described.
On November 30, 2017 appellant requested reconsideration.
In a statement dated March 21, 2017, appellant’s supervisor noted that the employing
establishment employees had been provided with hearing protection options since 1972. He
indicated that as part of its safety procedures appellant had received annual training regarding
levels of noise considered hazardous. The manager confirmed that appellant’s description of his
job titles was accurate. He further noted as a boilermaker that appellant would have worked around
air-operated valves, boiler feed pumps, pulverizers, air compressors, and draft fans. The manager
indicated that the ambient noise level in any of appellant’s work environments could range from
40 to 90 decibels (dBs), but with mandatory hearing protection the ambient noise was reduced by
28 to 33 dBs. He advised that appellant would be exposed for a maximum of six hours on a regular
workday.
On December 7, 2017 the employing establishment appellant had been an employee from
September 24, 1981 to November 21, 1987 at an unspecified job. Appellant worked for the
employing establishment as a boilermaker from September 27 to October 22, 1988, November 14
to December 10, 1988, January 20 to April 29, 1989, May 22 to June 3, 1989, July 19, 1989 to
June 29, 1991, and from August 29 to December 14, 1991. He performed nonfederal employment
from December 14, 1991 to June 19, 2000. Appellant again worked for the employing
establishment as a boilermaker/maintenance technician from June 19, 2000 to September 20, 2014,
as a fossil mechanic technician from September 20, 2004 to July 14, 2014, and as a boilermaker
from June 14, 2014 to March 31, 2017, the date he retired. The employing establishment provided
objective sound level measurements conducted for his job title and noted that he used ear plugs
during his federal employment. It advised that medical records demonstrated preexisting hearing
loss, including a baseline examination dated December 19, 2001. The employing establishment
noted that appellant had indicated that he was exposed to loud noise outside of his employment,
including noise from farm machinery, power tools, loud music, and firearms.
An audiogram conducted by an audiologist on December 11, 2017 revealed mild-tomoderate sensorineural hearing loss bilaterally with amplification indicated.
On January 25, 2018 OWCP referred appellant to Dr. Rudolf J. Triana, a Board-certified
otolaryngologist, for a second opinion examination. In an accompanying statement of accepted
facts (SOAF), it indicated that he had worked for the employing establishment for intermittent
dates from 1995 to 2007 and that he had no history of nonfederal employment.
In a February 19, 2018 report, Dr. Triana discussed appellant’s primary complaint of
tinnitus that had begun two years earlier. He diagnosed binaural hearing loss. Dr. Triana advised
that the external auditory canals were dry and he noted reduced drum motility without evidence of
acoustic neuroma or Meniere’s disease. Audiometric testing performed for him on February 8,
2018 at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz revealed the following losses:
right ear 30, 25, 30, and 50 dBs; left ear 30, 25, 30, and 60 dBs. Dr. Triana indicated that there
was no audiometric evaluation noted at the beginning of federal employment, but that appellant
had reported on intake forms that he had a long history of hearing loss secondary to work exposure,

3

firearm use, and loud music. He opined that it was unlikely that workplace exposure was of
sufficient intensity and duration to have caused the loss in question, noting that appellant had worn
mandatory hearing protection and had not complained of hearing issues prior to retirement.
Dr. Triana advised that appellant had a history of 20 years of exposure to firearms, loud music,
equipment, and race cars and had complained of hearing problems prior to his federal employment.
He opined that the sensorineural hearing loss was not due to noise exposure encountered in
appellant’s federal employment. Dr. Triana advised that the current audiogram showed bilateral
symmetric sensorineural hearing loss, worse in the higher frequencies. He recommended lipo
flavonoids for tinnitus and mandatory hearing protection when operating machinery, discharging
firearms, and listening to loud music.
By decision dated February 22, 2018, OWCP modified the May 5, 2017 decision finding
that appellant had established that the employment factors occurred as alleged. However, the claim
remained denied as the medical evidence of record was insufficient to establish that the hearing
loss was causally related to workplace noise exposure. OWCP afforded the weight of the medical
evidence to Dr. Triana’s February 19, 2018 report in which he opined that appellant’s current
hearing loss was not due to noise exposure from federal employment.
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,2 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.3 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.4
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

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).
5

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

4

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.6 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted that appellant sustained noise exposure during the course of his federal
employment and referred him, together with a SOAF, to Dr. Triana for a second opinion
examination to determine whether he had sustained hearing loss causally related to his accepted
noise exposure. The SOAF provided to Dr. Triana indicated that he had worked for the employing
establishment for intermittent dates from 1995 to 2007 and that he had no history of nonfederal
employment. The employing establishment, however, advised that it had employed appellant from
September 24, 1981 to November 21, 1987 in an unspecified position. Appellant subsequently
worked for the employing establishment as a boilermaker from September 27 to October 22, 1988,
November 14 to December 10, 1988, January 20 to April 29, 1989, May 22 to June 3, 1989,
July 19, 1989 to June 29, 1991, August 29 to December 14, 1991, June 19, 2000 to September 20,
2014, and June 14, 2014 to March 31, 2017. He additionally worked for the employing
establishment as a fossil mechanic technician from September 20, 2004 to July 14, 2014.
Appellant worked in nonfederal employment from December 1991 to June 2000.
In a report dated February 19, 2018, Dr. Triana diagnosed bilateral sensorineural hearing
loss unrelated to noise exposure during the course of appellant’s federal employment. He noted
that appellant had an extensive history of noise exposure to firearms, loud music, equipment, and
race cares. Dr. Triana determined that appellant’s workplace exposure was likely insufficient to
have caused the loss in question as appellant had used hearing protection. He further opined that
appellant had complained of hearing issues prior to beginning federal employment.
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF.8 OWCP’s procedures dictate that when an OWCP medical
adviser, second opinion specialist or referee physician renders a medical opinion based on a SOAF
which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or
her opinion, the probative value of the opinion is seriously diminished or negated altogether.9

6

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

7

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); C.D., Docket No. 18-1652 (issued June 26, 2019).
9

Id.; see also N.W., Docket No. 16-1890 (issued June 5, 2017).

5

As Dr. Triana relied upon an inaccurate SOAF, his opinion is of diminished probative
value. He opined that appellant’s sensorineural hearing loss was not due to noise exposure
encountered in his federal employment, noting that he had complained of hearing problems prior
to his federal employment. As discussed, however, Dr. Triana did not demonstrate knowledge that
appellant’s federal employment began in 1981 or that he began working as a boilermaker in 1988.
He failed to rely upon a complete and accurate employment history, and thus his opinion is of
diminished probative value.11
10

It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.12 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician, it had the duty to secure an
appropriate report addressing the relevant issues.13 As Dr. Triana did not base his report on an
accurate factual history, the case will be remanded to OWCP for further development of the
medical evidence.
On remand OWCP should prepare an updated SOAF that includes appellant’s dates of
employment at the employing establishment and in nonfederal employment with accompanying
noise exposure data. It should then obtain a rationalized opinion regarding whether his hearing
loss was causally related to factors of his federal employment.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

Id.; see also Y.D., Docket No. 17-0461 (issued July 11, 2017).

11

See S.T., Docket No. 18-1144 (issued August 9, 2019) (medical opinions based on an incomplete or inaccurate
history are of limited probative value).
12

See D.M., Docket No. 19-1181 (issued December 2, 2019).

13

S.S., Docket No. 18-0397 (issued January 15, 2019); Richard F. Williams, 55 ECAB 343 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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Appearances:
Tim Egbuchunam, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1655
Issued: December 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 27, 2015 appellant, through counsel, filed a timely appeal from a February 27,
2015 merit decision and an April 13, 2015 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his
diagnosed conditions were caused or aggravated by his federal employment; and (2) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the April 13, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b).

OWCP properly denied appellant’s March 15, 2015 request for reconsideration under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On July 18, 2014 appellant, then a 56-year-old custodian laborer, filed an occupational
disease claim (Form CA-2) alleging that he experienced severe pain in his neck, low back, both
shoulders, both wrists, and both knees as a result of his employment.3 He first became aware of
his conditions and realized that they resulted from his employment on December 23, 2013.
Appellant stopped work on December 29, 2013.
Appellant explained in an August 14, 2014 statement that he had been employed as a
custodian laborer for the last 20 years and worked a minimum of 40 hours a week. He related
that he had been on military deployment for nine years during which time he sustained injuries to
his low back, neck, both shoulders, both wrists, and both knees. Appellant explained that he
returned to work at the employing establishment on November 3, 2013 and experienced
aggravation of his previous injuries, which made it difficult for him to perform his job duties.
He noted that his work duties required him to stay on his feet as he cleaned the office building.
Appellant asserted that the repetitive motion of prolonged standing, constant walking, stooping,
reaching, twisting, and lifting had aggravated his preexisting injuries. He reported that the
aggravation limited his ability to perform his job duties and that after December 23, 2013 the
pain became so severe that he was unable to fully perform his duties.
On January 15, 2014 appellant was examined by Dr. Charles Willis, a Board-certified
anesthesiologist and pain management specialist. Dr. Willis reported that appellant was totally
disabled from January 15 to February 15, 2014. In February 19, March 30, and April 11, 2014
work status notes, he reported that appellant was totally disabled from February 19 to May 11,
2014 based on the results of the most recent Functional Capacity Evaluation (FCE).
In a May 30, 2014 report, Dr. Willis indicated that appellant was totally disabled from
May 30 to June 30, 2014 based on appellant’s most recent FCE. He reported that appellant was
post-lumbosacral facet injections on May 9, 2014.
Appellant continued to be treated by Dr. Willis who noted in a June 27, 2014 work
capacity evaluation that appellant was capable of working full time with restrictions. Dr. Willis
restricted appellant to walking and standing for one hour, reaching above the shoulder, pushing,
pulling, and lifting 10 pounds for two hours, and no kneeling, and climbing.
On August 1, 2014 Gabriela Neale, a health and resource management specialist for the
employing establishment, controverted appellant’s claim alleging that he did not establish fact of
injury, causal relationship, and performance of duty. She stated that appellant previously filed an
occupational disease claim on January 21, 2014 for the same conditions. Ms. Neale also reported
that appellant had just returned from military duty on November 3, 2013 and did not provide any
medical documentation alleging any disability or work restrictions. She noted that appellant
3

The record reveals that appellant had a previously accepted traumatic injury claim (File No. xxxxxx634) and a
denied occupational disease claim (File No. xxxxxx743).

2

worked for the employing establishment except for the dates when he was on military leave. The
employing establishment reported that from May 6, 2004 to November 15, 2009 appellant was
on extended military leave. From November 16, 2009 to March 25, 2010 appellant returned to
work. From March 26, 2010 to November 2, 2013 he was again on extended military leave. On
November 3, 2013 appellant returned to work before stopping work again on
December 30, 2013. Ms. Neale also asserted that it was questionable that appellant was capable
of performing his military duties for many years, but was now claiming an aggravation of his
conditions after working only 32 days.
By letter dated August 27, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional factual evidence to substantiate the
factual elements of his claim and additional medical evidence to demonstrate that he sustained a
diagnosed medical condition causally related to his employment. A similar development letter
was sent to the employing establishment.
Appellant resubmitted his August 4, 2014 statement.
In an August 28, 2014 report, Dr. Ed Wolski, a Board-certified family practitioner and
pain management specialist, related appellant’s complaints of moderate pain to the neck, back,
bilateral knees, shoulders, and wrists. He noted that appellant was involved in a work-related
injury while performing work duties as a labor custodian for approximately 22 years. Dr. Wolski
explained that the work injury occurred while performing repetitive work duties when lifting and
carrying 50-pound, 5-gallon buckets filled with wax, pushing and pulling, bending, and stooping.
He reviewed appellant’s history and conducted an examination. Dr. Wolski observed moderate
paravertebral tenderness and spasms of the thoracic spine. Examination of the lumbar spine
demonstrated tenderness and palpable spasms and diminished range of motion. Straight leg raise
testing was positive. Dr. Wolski also reported four well-healed surgical scars over the right
shoulder and diffuse tenderness over the anterior deltoid. Range of motion was diminished at 80
degrees abduction. Dr. Wolski further observed diminished range of motion and tenderness over
the carpals of the bilateral wrists. Examination of the bilateral knees revealed tenderness over
the lateral joint lines and diminished flexion. Dr. Wolski diagnosed bilateral knee strain,
thoracic strain, and lumbar strain.
Dr. Wolski opined that appellant sustained his work-related injuries while in the
performance of his duties as a custodian for the employing establishment. He explained that the
work injury occurred while he performed repetitive work duties of lifting and carrying 50-pound,
5-gallon buckets filled with wax, pushing and pulling, bending and stooping maneuvers to
relocate chairs, desks, and tables. Dr. Wolski reported that repetitive bending, lifting, and
twisting caused excessive strain to appellant’s thoracic and lumbar paraspinal muscles and
ligaments and that prolonged standing and squatting caused bilateral knee sprains. He noted that
the medical evidence was supported by subjective complaints of reported pain, reported
difficulty performing work duties, and objective findings of tenderness, limited mobility, and
decreased strength. Dr. Wolski also reported that there were radiographic findings of
spondylosis, loss of lumbar curvature, knee joint space, and osteoarthritis.

3

In a decision dated September 29, 2014, OWCP denied appellant’s occupational disease
claim. It found that he had failed to establish how his federal employment duties caused his
diagnosed conditions.
On December 1, 2014 OWCP received appellant’s reconsideration request through
counsel. Counsel pointed out that appellant was alleging an aggravation of his preexisting
injuries. He also noted that updated medical evidence was being submitted to support
aggravation of preexisting injuries.
Appellant resubmitted the August 4, 2014 statement and Dr. Wolski’s August 28, 2014
report.
By decision dated February 27, 2015, OWCP denied modification of the September 29,
2014 denial decision.
On March 15, 2015 OWCP received appellant’s reconsideration request through counsel.
On April 10, 2015 OWCP received additional medical evidence. Appellant submitted
various diagnostic reports by Dr. Julian Crutchfield, a chiropractor. In an August 28, 2014 x-ray
of the right knee, Dr. Crutchfield observed some degenerative arthritic changes in the anterior
superior aspect of the patella and some mild degenerative arthritic changes of the patella on the
anterior superior aspect.
An August 28, 2014 x-ray of the left wrist demonstrated no evidence of fractures,
dislocations, or gross pathology.
In an August 28, 2014 x-ray of the left knee, Dr. Crutchfield observed moderate loss of
the medial and lateral joint space and mild-to-moderate degenerative arthritic changes of the
distal femur, proximal tibia with the lateral aspect more than the medial aspect. He also noted
mild formation of osteophyte on the lateral aspect of the femur and tibia and on the medial aspect
of the femur.
Dr. Crutchfield also reviewed an August 28, 2014 x-ray of the lumbar spine. He found
moderate loss of lordosis of the lumbar spine on the lateral view and osteophyte formation on the
anterior aspect of L1, L2, L3, and L4. Dr. Crutchfield also noted sclerosing of the L5 vertebral
body and part of the lower half of the L4 vertebral body.
In an August 28, 2014 x-ray of both shoulders, Dr. Crutchfield reported that the
acromioclavicular joint space appeared slightly reduced due to some degenerative arthritic
changes of the acromion and the distal clavicle. He noted that the glenohumeral joint space
appeared abnormal in the internal and external rotation views.
Appellant was also examined by Ryan Stepinoff, a physician assistant, on October 14,
November 20, and December 17, 2014, for complaints of severe left knee, neck, and low back
pain. Mr. Stepinoff noted a date of injury of December 23, 2013. Upon examination, he
indicated muscle spasm and decreased range of motion of the back. Mr. Stepinoff indicated that
appellant sustained an aggravation of a preexisting back, bilateral knee, and bilateral shoulder
injury.
4

On October 21, 2014 appellant underwent an electromyography (EMG) and nerve
conduction velocity (NCV) examination by Dr. Robert Helsten, a family practitioner and pain
management specialist, who related appellant’s complaints of pain, numbness, and tingling in the
lower extremities. Dr. Helsten indicated that appellant injured his lower back due to repetitive
requirements of his job. He observed decreased NCV and amplitude of the right and left tibial.
Dr. Helsten also indicated that appellant had prolonged bilateral peroneal F waves.
In a decision dated April 13, 2015, OWCP denied appellant’s request for reconsideration.
This decision found that, while appellant’s counsel had stated that he had submitted new medical
evidence, no new evidence was received. OWCP noted that the last medical report submitted
was received on December 1, 2014 and was a duplicate copy of Dr. Wolski’s August 28, 2014
report.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS -- ISSUE 1
Appellant has alleged that he developed various low back, neck, shoulder, wrists, and
knee conditions while serving in the military. On July 18, 2014 he filed an occupational disease
claim alleging that his duties as a custodian laborer aggravated these various conditions. OWCP
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

accepted that appellant’s job required prolonged standing and walking and repetitive stooping,
reaching, twisting, and lifting. It denied his claim finding insufficient medical evidence to
establish that his diagnosed conditions were caused by factors of his employment. The Board
finds that appellant did not meet his burden of proof to establish his occupational disease claim.
Appellant was examined by Dr. Wolski. In an August 28, 2014 report, Dr. Wolski noted
that appellant sustained a work-related injury while working as a labor custodian for 22 years.
He explained that appellant performed repetitive work duties of lifting and carrying 50-pound 5gallon buckets, pushing and pulling, bending, and stooping. Dr. Wolski reviewed appellant’s
history and provided findings on examination. He diagnosed bilateral knee strain, thoracic
strain, and lumbar strain. Dr. Wolski opined that appellant sustained his work-related injuries
while in the performance of his duties as a custodian for the employing establishment. He
reported that the medical evidence was supported by subjective complaints of reported pain,
reported difficulty performing work duties, and objective findings of tenderness, limited
mobility, and decreased strength. Dr. Wolski accurately described appellant’s employment
duties as a labor custodian and provided examination findings and a medical diagnosis.
Although he opined that appellant’s conditions were related to his duties as a labor custodian, the
Board finds that he did not provide any medical rationale to support his opinion of causal
relationship and failed to base his opinion on a correct history as he does not acknowledge the
preexisting military-related injuries.9 The Board has found that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.10 Dr. Wolski failed to relate specific
employment factors to appellant’s diagnosed conditions with medical rationale.11 He also failed
to premise his opinions on a correct history of injury. Accordingly, Dr. Wolski’s report is
insufficient to establish appellant’s claim.
In work status notes dated January 15 to May 30, 2014, Dr. Willis indicated that appellant
was totally disabled from January 15 to June 30, 2014 based on the results of the most recent
FCE. In a June 27, 2014 work capacity evaluation, he reported that appellant was capable of
working full time with restrictions of reaching above the shoulder, pushing, pulling, and lifting
up to two hours, walking and standing for one hour, and no kneeling or climbing. The Board
finds that Dr. Willis’ reports are insufficient to establish appellant’s claim as he does not provide
any medical diagnosis or opinion on whether appellant sustained a medical condition causally
related to his employment and he too fails to base his opinion on a correct history as he does not
acknowledge the preexisting military-related injuries.
On appeal, appellant alleges that OWCP failed to properly review all the factual and
medical evidence in the case record. Despite his allegations, however, the Board finds that
appellant has not submitted any evidence to substantiate his claim. The issue of causal
relationship is a medical question that must be established by probative medical opinion from a

9

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143 (1989).

10

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

See Solomon Polen, 51 ECAB 341 (2000).

6

physician.12 As appellant has not submitted such probative medical opinion evidence in this
case, he has not met his burden of proof to establish his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.13 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district office.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.16 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or provided an argument that meets
at least one of the requirements for reconsideration. If OWCP chooses to grant reconsideration,
it reopens and reviews the case on its merits.17 If the request is timely but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits.18
ANALYSIS -- ISSUE 2
By decision dated April 13, 2015, OWCP denied appellant’s request for reconsideration
finding that no new medical evidence was received to warrant further merit review. The Board
notes, however, that appellant submitted various medical reports including diagnostic reports by
Dr. Crutchfield and Dr. Helsten and examination records by a physician assistant. These reports
were received by OWCP on April 10, 2015. Although appellant submitted medical evidence
along with his reconsideration request, OWCP did not review the additional evidence from
Drs. Crutchfield and Helsten. OWCP received these reports three days before it issued its
12

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

13

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
14

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
15

20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

20 C.F.R. § 10.607(a).

17

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

18

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

7

April 13, 2015 decision. The Board has found that because its jurisdiction of a case is limited to
reviewing the evidence that was before OWCP at the time of its final decision, it is critical that
OWCP review all evidence relevant to that subject matter and received by OWCP prior to the
issuance of its final decision.19
The Board finds that this case is not in posture for decision. While the Board affirms the
February 27, 2015 decision, the Board will set aside OWCP’s April 13, 2015 decision denying
appellant’s reconsideration request and remand the case to OWCP for consideration of the
evidence in order to determine whether this evidence required further merit review of appellant’s
claim.
CONCLUSION
The Board finds that appellant has not established that his diagnosed conditions were
caused or aggravated by his federal employment. The Board also finds that the claim is not in
posture for decision regarding whether OWCP properly denied appellant’s reconsideration
request.

19

See William A. Couch, 41 ECAB 548 (1990); E.Z., Docket No. 14-274 (issued March 16, 2015).

8

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2015 merit decision is affirmed
while the April 13, 2015 decision of the Office of Workers’ Compensation Programs is set aside
and remanded for further action consistent with this decision of the Board.
Issued: December 18, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, HEALTH &
RESOURCE MANAGEMENT,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 15-0876
Issued: July 16, 2015

Case Submitted on the Record

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

JURISDICTION
On March 13, 2015 appellant timely appealed the October 3, 2014 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision of September 5, 2013, to the filing of the current appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
Appellant, a 61-year-old retired health and resource management (HRM) manager, has an
accepted claim for temporary aggravation of major depressive disorder, temporary aggravation
of hypertension, and temporary aggravation of generalized anxiety disorder, which arose on or
about May 1, 2006.2 By decision dated August 14, 2012, OWCP determined that appellant’s
accepted emotional/psychiatric conditions had resolved as of July 23, 2012.3 Appellant was also
diagnosed with post-traumatic stress disorder (PTSD), but, OWCP has not accepted her PTSD as
employment related. Appellant remains eligible for wage-loss or medical benefits with respect
to her employment-related hypertension.
Appellant timely requested reconsideration of OWCP’s August 14, 2012 decision. Her
primary argument was that OWCP had not adequately addressed her PTSD. Appellant submitted
a May 17, 2013 report from Dr. Hayne D. McMeekin, a Board-certified psychiatrist, who
diagnosed PTSD and advised that appellant was currently unable to work. OWCP also received
a May 8, 2013 report from Dr. Edwin A. Avbuere, a Board-certified internist, who diagnosed
hypertension and anxiety.4 Dr. Avbuere indicated that appellant was unable to work under any
stressful conditions as this would likely aggravate her conditions and undermine her
performance.
In a September 5, 2013 decision, OWCP reviewed the merits of the claim, but denied
modification of its August 14, 2012 decision.
By letter dated September 4, 2014, received by OWCP on September 5, 2014, appellant
requested reconsideration. She submitted a July 31, 2014 report from her psychiatrist,
Dr. McMeekin. Dr. McMeekin diagnosed PTSD and advised that appellant responded to
medication, but this had not restored her to full function. He further noted that appellant
remained impaired with respect to her ability to deal with minimal stress, such as that which
occurs during normal work. Dr. McMeekin explained that this type of stress would be expected
to cause increased anxiety, insomnia, and difficulty making decisions. In conclusion, he stated
that it was his professional opinion that appellant was not able to work at this time.
In an October 3, 2014 decision, OWCP denied appellant’s request for reconsideration,
and thus, did not review the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
2

Appellant stopped work on June 24, 2008, and retired effective November 1, 2008.

3

OWCP based its decision on the June 23 and July 26, 2012 reports of Dr. Gerald M. Aronoff, a Board-certified
psychiatrist and impartial medical examiner (IME).
4

Dr. Avbuere previously served as an OWCP referral (second opinion) physician.

5

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

2

limitations in exercising its authority.6 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.7 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously
applied or interpreted a specific point of law; (ii) advances a relevant legal argument not
previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not
previously considered by OWCP.8 When a timely application for reconsideration does not meet
at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.9
ANALYSIS
OWCP received appellant’s most recent request for reconsideration on
September 5, 2014. In her request dated September 4, 2014, appellant discussed various medical
reports from Dr. Avbuere and Dr. Aronoff (IME), and questioned the reliability of Dr. Aronoff’s
findings regarding her current emotional/psychiatric condition. She also argued that Dr. Aronoff
failed to address Dr. McMeekin’s diagnosis of PTSD. Appellant raised the same or similar
arguments in her previous request for reconsideration dated June 14, 2013.
The Board finds that appellant’s latest request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance any relevant legal arguments not previously considered
by OWCP. Accordingly, she is not entitled to a review of the merits based on the first and
second requirements under section 10.606(b)(2).10
Appellant also failed to submit any “relevant and pertinent new evidence” with her most
recent request for reconsideration. Dr. McMeekin’s July 31, 2014 report is a verbatim reiteration
of his May 17, 2013 report, which appellant submitted with her prior request for reconsideration.
OWCP noted that Dr. McMeekin’s latest report was similar to evidence already in the record
and, therefore, cumulative and immaterial. Providing additional evidence that repeats or
duplicates information already in the record does not constitute a basis for reopening a claim.11
Consequently, Dr. McMeekin’s July 31, 2014 report is insufficient to warrant further merit
6

20 C.F.R. § 10.607 (2014).

7

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
8

20 C.F.R. § 10.606(b)(2).

9

Id. at §§ 10.607(b), 10.608(b).

10

Id. at § 10.606(b)(2)(i) and (ii).

11

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

3

review. Because appellant did not provide any “relevant and pertinent new evidence,” she is not
entitled to a review of the merits based on the third requirement under section 10.606(b)(2).12
Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied further merit review with respect to
appellant’s September 4, 2014 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

20 C.F.R. § 10.606(b)(2)(iii).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jerome, ID, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 22-0003
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On October 1, 2021 appellant filed a timely appeal from a September 28, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,223.12 for the period July 19 through
August 14, 2021, for which she was without fault, because she continued to receive wage-loss
compensation after she returned to work; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2021 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome causally related to factors of her federal employment, including the repetitive nature of
her duties. OWCP accepted the claim for carpal tunnel syndrome of the right and left upper limb.
On May 18, 2021 appellant underwent an OWCP-authorized right carpal tunnel release and on
June 1, 2021 she underwent an OWCP-authorized left carpal tunnel release. OWCP paid her
wage-loss compensation by electronic funds transfer on the supplemental rolls beginning March 2,
2021 and on the supplemental rolls from March 2 through May 7, 2021, and on the periodic rolls
from March 8 through August 14, 2021.
Appellant returned to her full-time usual employment on July 19, 2021. In a telephone
memorandum (Form CA-110) dated August 13, 2021, she advised OWCP that she had submitted
paperwork showing that she had returned to work but had continued to receive compensation.
In an August 23, 2021 preliminary overpayment determination, OWCP notified appellant
of is preliminary finding that she had received an overpayment of compensation in the amount of
$3,223.12 because she returned to full-time work on July 19, 2021 but continued to receive wageloss compensation for total disability on the periodic rolls through August 14, 2021. It further
advised her of its preliminary determination that she was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised her that
she could request waiver of recovery of the overpayment. It further requested that she provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records supporting income and
expenses. Additionally, OWCP provided an overpayment action request form and notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
In an overpayment action request form dated August 29, 2021, appellant requested a
decision based on the written evidence. She contended that the recovery of the overpayment
should be waived, contending that she called and had sent forms to OWCP advising that she had
been released to return to work. On an accompanying OWCP-20 form, appellant listed monthly
income of $4,500.00 and monthly expenses of $1,565.00 for housing, $706.81 for utilities,
$2,854.92 for other expenses, and $500.00 for credit card payments, a total of $5,626.73. She
advised that she used any extra for food and clothing. Appellant indicated that she had funds on
hand of $157.39. She submitted financial documentation showing various bills and account
statements. Appellant further submitted a U.S. Individual Income Tax Return (Form 1040) filed
with her spouse showing income of $124,605.00 and taxable income of $99,595.00. She also
provided a statement showing that she had received a distribution of $14,169.00 in 2020 from her
Thrift Savings Plan (TSP).
By decision dated September 28, 2021, OWCP finalized its finding that appellant received
an overpayment of $3,223.12 for the period July 19 through August 14, 2021 because it had paid
her wage-loss compensation for total disability after she returned to work. It calculated the
overpayment by finding that she received net compensation in the amount of $3,342.49 for the

2

period July 18 to August 14, 2021. OWCP divided $3,342.49 by 28 days and multiplied by 27,
the number of days of the overpayment, to find a total overpayment of $3,223.12. It further
finalized its finding that appellant was without fault in the creation of the overpayment. OWCP
denied waiver of recovery of the overpayment. It found that based on a joint 2020 tax return,
appellant and her husband had an estimated income of approximately $6,389.00 per month after
taxes. OWCP further noted that appellant had not provided a breakdown of her assets, described
her other expenses of $2,854.92, or documented her utility expenses other than to submit a gas bill
of $72.00. It indicated that individual was responsible for providing information about income,
expenses, and assets. OWCP found that appellant should submit the full amount as recovery of
the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 2 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed b y the Secretary of Labor by
decreasing later payments to which an individual is entitled. 3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments u ntil the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation. 5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,233.12 for the period July 19 through August 14, 2021, for
which she was without fault because she continued to receive wage-loss compensation for total
disability after she returned to full-time work.
Appellant resumed to full-time regular employment on July 19, 2021. OWCP, however,
continued to pay her wage-loss compensation for total disability following her return to work

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

5

L.T., Docket No. 19-1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2020).

3

through August 14, 2021, which resulted in an overpayment of compensation. Appellant was not
entitled to receive temporary total disability benefits and actual earnings for the same time period. 6
In determining the amount of overpayment, OWCP calculated the net amount of disability
compensation that appellant had received for the period July 18 through August 14, 2021,
$3,342.49, divided this amount by 28, and multiplied the remainder by the 27 days that she worked
during this period to find an overpayment of $3,223.12. Thus, the Board finds that appellant
received an overpayment of $3,223.12 during the above-noted period.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. 8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or f ormerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 9 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.10 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financ ial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
6

J.R., Docket No. 20-0025 (issued December 13, 2021); L.T., Docket No. 19-1389 (issued March 27, 2020); S.N.,
Docket No. 19-1018 (issued November 12, 2019).
7

J.R., id.

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400(2)(3) (September 2020).
10

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

Id. at Chapter 6.400.4(a)(2).

12

Id. at Chapter 6.400.4(b)(3).

4

worse.13 OWCP’s procedures provide that, to establish that a valuable right has been relinquished,
an individual must demonstrate that the right was in fact valuable, that he or she was unable to get
the right back, and that his or her action was based primarily or solely on reliance on the payment(s)
or on the notice of payment. 14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she did not fully complete the Form OWCP-20 or submit
adequate documentation of her income or expenses. In an OWCP-20 form dated August 29, 2021,
appellant listed monthly income of $4,500.00 and monthly expenses totaling $5,626.73. She
advised that she had assets of $157.39 and no money in stocks and bonds. Supporting
documentation, however, indicated that appellant had withdrawn $14,169.00 from her TSP in
2020. She thus had assets in a TSP but did not provide information regarding this account. Savings
in a TSP account are included in the asset base. 17 A tax return from 2020 further indicated that
appellant had more monthly income than disclosed on the OWCP-20 form. Although OWCP
advised her to submit a Form OWCP-20 and documentation fully substantiating her income and
expenses, she failed to do so, as required by section 10.438 of OWCP’s regulations. 18
As appellant did not submit sufficient financial inf ormation and documentation, the
evidence of record is, therefore, insufficient to establish that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience.19

13

20 C.F.R. § 10.437(a)(b); E.H., Docket No. 18-1009 (issued January 29, 2019).

14

Supra note 9 at Chapter 6.400.4c(3).

15

Supra note 9 at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17

See S.C., Docket No. 17-0762 (issued March 19, 2018); C.P., Docket No. 14-0975 (issued September 11, 2014).

18

20 C.F.R. § 10.438; see R.M., Docket No. 19-1570 (issued June 1, 2020).

19

See supra note 15; S.L., Docket No. 21-0902 (issued December 22, 2021).

5

Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment. 20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,223.12 for the period July 19 through August 14, 2021, for
which she was without fault, because she continued to receive wage-loss compensation after she
returned to work. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55
ECAB 610 (2004).

6