United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Beckley, WV, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1683
Issued: April 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 4, 2018 appellant, through counsel, filed a timely appeal from a July 3, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.

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.3
ISSUE
The issue is whether appellant has met her burden of proof to establish more than four
percent permanent impairment of each lower extremity, for which she has previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On May 15, 2001 appellant, then a 48-year-old medical technician, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her low back when she prevented a
patient’s fall while in the performance of duty. OWCP accepted the claim for lumbosacral strain.5
On February 1, 2009 appellant filed a Form CA-7 claim for a schedule award.6 By decision
dated March 12, 2009, OWCP found that, as she had not established a permanent impairment
causally related to her accepted condition, she was not entitled to a schedule award. By decision
dated August 20, 2009, an OWCP hearing representative affirmed the March 12, 2009 decision.
Counsel filed an appeal with the Board on September 8, 2009. By decision dated May 14,
2010,7 the Board set aside the March 12 and August 20, 2009 OWCP decisions and remanded the
case for a review of the medical record by an OWCP district medical adviser (DMA).
Following review by a DMA who found that appellant had no lower extremity impairment
related to the accepted condition, by decision dated June 8, 2010, OWCP again denied her schedule
award claim.

2

5 U.S.C. §§ 8101 et seq.

3
The Board notes that, following the July 3, 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.
4

Docket No. 14-0345 (issued December 24, 2014); Docket No. 09-0231 (issued May 14, 2010).

5

A March 21, 2002 electromyograph and nerve conduction velocity (EMG/NCV) study demonstrated that the lower
extremities and lumbar paraspinals were within normal limits.
6

The record indicates that appellant returned to a light-duty clerical position in March 2003 and retired in
March 2007.
7

Docket No. 09-2231 (issued May 14, 2010).

2

Additional development followed during which appellant submitted a July 22, 2011 report
from Dr. Martin Fritzhand, a Board-certified urologist. He described examination findings of
absent Achilles tendon reflexes and diminished muscle strength over both lower extremities.
Dr. Fritzhand utilized the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)8 and The Guides Newsletter “Rating
Spinal Nerve Extremity Impairment using the sixth edition” (The Guides Newsletter)
(July/August 2009) and determined that appellant had sustained impairment to the S1 nerve root.
He found a class 1 impairment, applied the net adjustment formula, and concluded that appellant
had bilateral four percent sensory impairments and five percent motor impairments for a combined
nine percent permanent impairment of each lower extremity.
On July 17, 2012 Dr. Arnold Berman, a Board-certified orthopedist serving as a DMA,
reported that he reviewed Dr. Fritzhand’s July 22, 2011 report. The DMA found that appellant
had four percent permanent impairment of each lower extremity. He noted his agreement with
Dr. Fritzhand’s opinion that appellant’s S1 nerve root deficit was a sufficient basis for rating
permanent impairment pursuant to the sixth edition of the A.M.A., Guides and The Guides
Newsletter. However, the DMA indicated that Dr. Fritzhand’s rating was inconsistent with his
examination findings and found that appellant had a mild sensory deficit under Table 16-11, which
yielded one percent permanent impairment for sensory loss, as opposed to Dr. Fritzhand’s finding
of a severe sensory deficit for five percent permanent impairment. He further found that
Dr. Fritzhand had not properly applied the net adjustment formula. The DMA concluded that
appellant had one percent sensory deficit and three percent motor deficit, for a combined four
percent permanent impairment of each lower extremity with July 22, 2011 the date of maximum
medical improvement.
By decision dated March 6, 2013, OWCP found the weight of the medical evidence rested
with the opinion of the DMA and granted appellant a schedule award for four percent permanent
impairment of each lower extremity, for a total lower extremity permanent impairment of eight
percent. The award ran for a period of 23.04 weeks for the period July 22 to December 30, 2011.
On November 5, 2013 an OWCP hearing representative affirmed the March 6, 2013 decision.
On December 2, 2013 appellant, through counsel, filed a timely appeal with the Board. By
decision dated December 24, 2014, the Board found the case not in posture for decision because a
conflict had been created between Dr. Fritzhand and the DMA regarding their opinions of the
degree of permanent impairment of her lower extremities caused by the accepted back conditions.
The Board set aside the November 5, 2013 decision and remanded the case for OWCP to refer
appellant, the case record, and a statement of accepted facts (SOAF) for an impartial medical
evaluation to determine the appropriate degree of her lower extremity impairment due to the
accepted conditions.9
On July 7, 2015 OWCP referred appellant to Dr. David Soulsby, a Board-certified
orthopedic surgeon, to resolve the conflict in medical opinion. In an August 13, 2015 report,

8

A.M.A., Guides (6th ed. 2009).

9

Docket No. 14-0345 (issued December 24, 2014).

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Dr. Soulsby indicated that he had previously examined her on January 24, 2003.10 He advised
that, because appellant demonstrated subjective symptoms without objective physical findings, she
had no ratable lower extremity findings with zero percent permanent impairment. Dr. Soulsby
also found four percent whole person impairment upon application of Chapter 17 of the A.M.A.,
Guides due to degenerative disc disease.
By decision dated September 30, 2015, OWCP found the special weight of medical
evidence rested with the impartial evaluation of Dr. Soulsby and found that appellant was not
entitled to an increased schedule award.
On October 6, 2015 counsel requested a hearing before an OWCP hearing representative.
At the hearing, held on June 6, 2016, he maintained that Dr. Soulsby had not properly rated
appellant’s spinal impairment and, therefore, Dr. Soulsby opinion was insufficient to resolve the
conflict in medical evidence.
By decision dated July 28, 2016, an OWCP hearing representative set aside the
September 30, 2015 decision. He noted that, under OWCP procedures, physicians previously
connected with a claim were prohibited from serving as an impartial medical examiner (IME) and,
therefore, as Dr. Soulsby had previously examined appellant on January 24, 2003, he was not
qualified to resolve the conflict regarding her lower extremity impairment. The hearing
representative remanded the case to OWCP to refer appellant to a new IME to resolve the conflict,
in accordance with the sixth edition of the A.M.A., Guides.
On November 17, 2016 OWCP referred appellant to Dr. Andrew E. Landis, Boardcertified in orthopedic surgery, for an impartial medical evaluation. In a January 3, 2017 report,
he noted his review of the SOAF and medical record, including diagnostic studies. Dr. Landis
described appellant’s complaint of midline low back pain with numbness and burning. Physical
examination demonstrated mild restriction in spinal range of motion with no evidence of spasm,
no deformity of the lumbar spine, and tenderness to light touch over the lower back with no
evidence of inflammation to account for the tenderness. Supine and sitting straight leg raising
demonstrated low back pain without radiation. Heel and toe walking were done without difficulty
and neurological examination revealed no motor weakness in either lower extremity with no
atrophy present. Sensory examination revealed decreased sensation to light touch throughout the
entire left lower extremity and with questionable decrease on the right, and sensation to pinprick
was decreased throughout each lower extremity. Dr. Landis opined that all sensory changes were
nonphysiologic and did not correspond to any dermatomal pattern. He indicated that appellant
sustained a lumbosacral strain/sprain type of injury on May 15, 2001 that was superimposed on
preexisting degenerative changes in the lumbar spine, noting that none of the diagnostic studies
demonstrated disc herniation, nerve root impingement, or spinal stenosis. Dr. Landis advised that,
since she had a normal EMG/NCV in 2002, the changes seen on the 2015 EMG/NCV would be a
new finding unrelated to the 2001 employment injury. He opined that, at the time of his
examination, there was no evidence of a credible neurological deficit involving either lower
extremity, indicating that appellant’s subjective complaints and clinical findings were consistent
with nonphysiologic findings and some degree of symptom magnification. Dr. Landis advised
that there was no evidence on clinical examination that would be consistent with radiculopathy or
10

The record indicates that Dr. Soulsby performed a second opinion evaluation on January 24, 2003.

4

evidence of nerve root damage at any level of the lumbar spine and, therefore, nothing on which
to base any impairment of either lower extremity. He further found that, under Chapter 17, The
Spine and Pelvis, of the A.M.A., Guides, appellant had a class 1 impairment which, after applying
grade modifiers and the net adjustment formula, yielded three percent whole person impairment.
In correspondence dated April 24, 2017, OWCP informed Dr. Landis that schedule awards
were not payable based upon a rating of the whole person or for an injury to the spine, but could
be paid for impairment of the upper or lower extremities caused by injury to a spinal nerve. It
attached a copy of the July/August 2009 The Guides Newsletter and asked that he utilize this in
evaluating the degree of appellant’s lower extremity impairment.
In a supplemental report dated May 17, 2017, Dr. Landis advised that The Guides
Newsletter would not be applicable in appellant’s case because she had no nerve impairment. He
reiterated his previous findings and that she had nonphysiologic subjective complaints in both
lower extremities and, therefore, would not be entitled to an impairment rating based on a spinal
nerve injury in either lower extremity.
By decision dated November 20, 2017, OWCP found the special weight of the medical
evidence rested with the impartial medical evaluation of Dr. Landis and found that appellant was
not entitled to an increased schedule award.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on November 29, 2017. She did not testify at the hearing, held on April 18, 2018. Counsel
asserted that Dr. Landis was unqualified to serve as an IME because he was unfamiliar with the
A.M.A., Guides. He requested that the case be remanded for a new impartial evaluation.
By decision dated July 3, 2018, an OWCP hearing representative affirmed the
November 20, 2017 decision. She found that, contrary to counsel’s assertions, OWCP properly
referred appellant to Dr. Landis who provided a detailed report resolving the conflict regarding
appellant’s impairment due to the accepted back conditions. The hearing representative concluded
that appellant had not established that she was entitled to a greater impairment than that previously
awarded.
LEGAL PRECEDENT
The schedule award provision of FECA,11 and its implementing federal regulations,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. 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 for all claimants, OWCP has adopted

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

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the A.M.A., Guides as the uniform standard applicable to all claimants.13 For decisions issued
after May 1, 2009, the sixth edition will be used.14
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.15 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether the
cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as the
schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the impairment
originated in the spine.16
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.17 OWCP has adopted this approach for
rating permanent impairment of the upper or lower extremities caused by a spinal injury, as
provided in section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009 The Guides Newsletter.18 Specifically, it will address lower extremity
impairments originating in the spine through Table 16-1119 and upper extremity impairment
originating in the spine through Table 15-14.20
Section 8123(a) 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.21 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.22 Where a case is
referred to an IME for the purpose of resolving a conflict, the opinion of such specialist, if

13

Id. at § 10.404(a).

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
15

J.M., Docket No. 18-0856 (issued November 27, 2018); Pamela J. Darling, 49 ECAB 286 (1998).

16

J.M., id.; Thomas J. Engelhart, 50 ECAB 319 (1999).

17

R.B., Docket No. 17-1995 (issued August 13, 2018); Rozella L. Skinner, 37 ECAB 398 (1986).

18

Supra note 14 at Chapter 3.700, Exhibit 1, (January 2010); The Guides Newsletter is included as Exhibit 4.

19

A.M.A., Guides, supra note 8 at 533.

20

Id. at 425.

21

5 U.S.C. § 8123(a).

22

C.R., Docket No. 18-1285 (issued February 12, 2019).

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sufficiently well rationalized and based on a proper factual and medical background must be given
special weight.23
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than four
percent permanent impairment of each lower extremity, for which she previously received
schedule award compensation.
OWCP accepted that appellant sustained lumbosacral sprain/strain and temporary
aggravation of degenerative disc disease. On February 1, 2009 appellant filed a schedule award
claim. By decision dated March 6, 2013, OWCP granted a schedule award for four percent
permanent impairment of each lower extremity.
By decision dated December 24, 2014, the Board found that a conflict in medical evidence
had been created between Dr. Fritzhand, an attending physician and Dr. Berman, OWCP’s DMA,
regarding the degree of appellant’s lower extremity impairment. The Board remanded the case to
OWCP to refer her for an impartial medical evaluation to determine the degree of her lower
extremity impairment.24 The Board’s review of the medical evidence submitted prior to
November 5, 2013, the most recent OWCP decision prior to the Board’s last decision, is res
judicata absent any further review by OWCP under section 8128 of FECA.25
On November 17, 2016 OWCP referred appellant to Dr. Landis, for an impartial medical
evaluation.26 In a comprehensive report dated January 3, 2017 and a supplemental report dated
May 17, 2017, Dr. Landis opined that, based on his examination findings of no motor weakness in
either lower extremity, no atrophy, and that all sensory changes were nonphysiologic and did not
correspond to any dermatomal pattern, she, therefore, had no permanent impairment of a lower
extremity due to the accepted spinal conditions, pursuant to the rating method found in The Guides
Newsletter.
The Board finds that Dr. Landis’ opinion constitutes the special weight of the medical
evidence and is sufficient to establish that appellant is not entitled to an additional schedule award
for the accepted lumbar conditions. When a case is referred to an IME to resolve a conflict, the
resulting medical opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.27 Dr. Landis provided a well-reasoned opinion based
on a proper factual and medical history. He also accurately summarized the relevant medical
23

Id.

24

Supra note 8.

25

B.W., Docket No. 18-1415 (issued March 8, 2019).

26

As noted, OWCP had initially referred appellant to Dr. Soulsby for an impartial medical evaluation. However,
as Dr. Soulsby had previously provided a second opinion evaluation on January 24, 2003, OWCP procedures
precluded that he serve as an IME. Supra note 14 at Part 3 -- Medical, OWCP Directed Medical Examinations,
Chapter 3.500.4.b(3)(b) (July 2011); see J.G., Docket No. 16-0328 (issued November 1, 2016).
27

A.G., Docket No. 18-0815 (issued January 24, 2019).

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evidence and provided thorough physical examination findings. Dr. Landis provided detailed
findings and medical rationale supporting his opinion, based upon the entire medical record, that
appellant had no lower extremity impairment referable to the accepted lumbar conditions. As the
IME, his opinion was entitled to special weight.28
Accordingly, the Board finds that OWCP properly relied on Dr. Landis’ findings as a basis
for finding that appellant had not met her burden of proof to establish greater lower extremity
impairment.29
Appellant may request a schedule award or increased schedule award at any time 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 has not established more than four percent permanent
impairment of each lower extremity, for which she has previously received schedule award
compensation.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 19, 2019
Washington, DC

Christopher J. Godfrey, 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
28

Id.

29

J.M., Docket No. 18-1387 (issued February 1, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
And
U.S. POSTAL SERVICE, GREENS NORTH
POST OFFICE, Houston, TX, Employer
__________________________________________

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Appearances:
Colleen M. McClure, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1163
Issued: September 22, 2020

Case Submitted on the Record

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

JURISDICTION
On April 29, 2019 appellant, through counsel, filed a timely appeal from an April 8, 2019
merit decision2 of the Office of Workers’ Compensation Programs (OWCP).3 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

The Board notes that OWCP issued an April 2, 2019 decision finding that appellant had abandoned her request
for a hearing related to suspension of compensation as of November 11, 2018 for failure to complete and return a
Form CA-1032. However, counsel did not file an appeal from that decision; thus, the Board will not address that
decision in this appeal. See 20 C.F.R. § 501.3.
3

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 21, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1163 (issued
July 21, 2020).

Federal Employees’ Compensation Act4 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.5
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $48,287.56, for which she was not at fault, as she
concurrently received Social Security Administration (SSA) age-related retirement benefits while
receiving FECA wage-loss compensation benefits for the period August 1, 2008 through April 28,
2018 without appropriate offset; and (2) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.6 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 16, 1999 appellant, then a 55-year-old letter carrier, filed a notice of recurrence
of disability (Form CA-2a) alleging that on January 15, 1999 she sustained a recurrence of
disability when she was casing mail, heard a loud “pop” in her right shoulder, and experienced a
sharp pain extending from her shoulder to her back while in the performance of duty.7 OWCP
created a new case file and converted the claim to a new traumatic injury case on February 24,
1999, assigned OWCP File No. xxxxxx601, which is the subject of the current appeal. It accepted
the claim for right shoulder strain on April 19, 1999 and paid appellant wage-loss compensation
for temporary total disability on the supplemental rolls beginning April 11, 1999 and on the
periodic rolls beginning April 24, 1999. Appellant returned to work on September 29, 1999 for
four hours per day in a limited-duty capacity and worked as a modified distribution clerk effective
April 8, 2000.8 The record reflects that OWCP paid her compensation for loss of wage-earning
capacity (LWEC) on the periodic rolls from June 16, 2002 through November 10, 2018.
In a claim for compensation (Form CA-7) dated May 8, 1999, a human resources specialist
noted that appellant was enrolled in the Federal Employees Retirement System (FERS).

4

5 U.S.C. § 8101 et seq.

5

The Board notes that following the April 8, 2019 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.
6

Order Dismissing Appeal, Docket No. 13-0347 (issued March 11, 2013).

7

Appellant’s claim for recurrence was based on a traumatic injury claim accepted for cervical strain on January 2,
1998 under OWCP File No. xxxxxx046.
8

In October 2005, appellant was eligible to receive age-related retirement benefits from the SSA.

2

By letter dated September 22, 2009, OWCP requested that appellant complete and return
an enclosed Form EN1032 reporting the information requested including any benefits received
from SSA which were received as part of an annuity under FERS. In the completed form, dated
October 8, 2009, appellant noted “private sector work” in response to the question regarding
benefits received from SSA as part of an annuity under FERS. In a completed Form EN1032 dated
September 8, 2010, she indicated that she did not receive benefits from SSA as part of an annuity
for federal service. In a completed Form EN1032 dated October 21, 2010, appellant indicated that
she did not receive benefits from the SSA as part of an annuity for federal service, but annotated
the answer with a question mark and explained that she had always paid into SSA during her
working career. She again indicated no receipt of SSA benefits as part of an annuity for federal
service on September 22, 2011, followed by a question mark. Appellant continued to indicate no
receipt of SSA benefits as part of an annuity for federal service through September 19, 2013. In a
Form EN1032 dated September 19, 2014, she indicated that she did receive benefits from SSA as
part of an annuity for federal service, but left the field indicating a monthly amount blank.
Appellant continued to indicate receipt of benefits from SSA as part of an annuity for federal
service through October 30, 2017.
On May 7, 2018 OWCP received a completed FERS/SSA dual benefits calculation form
from SSA, wherein SSA calculated benefit rates with a FERS offset and without a FERS offset
from August 2008 through December 2017. Beginning August 2008, the SSA rate with FERS was
$1,512.60 and without FERS was $1,140.80. Beginning December 2008, December 2009, and
December 2010, the SSA rate with FERS was $1,600.30 and without FERS was $1,206.90.
Beginning December 2011, the SSA rate with FERS was $1,657.90 and without FERS was
$1,250.30. Beginning December 2012, the SSA rate with FERS was $1,686.00 and without FERS
was $1,271.50. Beginning December 2013, the SSA rate with FERS was $1,711.20 and without
FERS was $1,290.50. Beginning December 2014 and December 2015, the SSA rate with FERS
was $1,740.20 and without FERS was $1,312.40. Beginning December 2016, the SSA rate with
FERS was $1,745.40 and without FERS was $1,316.30. Beginning December 2017, the SSA rate
with FERS was $1,780.30 and without FERS was $1,342.60. The SSA representative noted that
appellant began receiving SSA age-related retirement benefits in August 2008 and that “disability”
compensation benefits terminated in July 2008.
OWCP completed a FERS offset calculation form on May 21, 2018. It found that: from
August 1 through November 30, 2008 appellant had received an overpayment of $1,495.37; from
December 1, 2008 through November 30, 2009 an overpayment of $4,733.77; from December 1,
2009 through November 30, 2010 an overpayment of $4,733.77; from December 1, 2011 through
November 30, 2012 an overpayment of $4,918.07; from December 1, 2012 through November 30,
2013 an overpayment of $4,987.66; from December 1, 2013 through November 30, 2014 an
overpayment of $5,062.27; from December 1, 2014 through November 30, 2015 an overpayment
of $5,147.70; from December 1, 2015 through November 30, 2016 an overpayment of $5,161.81;
from December 1, 2016 through November 30, 2017 an overpayment of $5,163.35; and from
December 1, 2017 through April 28, 2018 an overpayment of $2,150.02. OWCP determined the
28-day FERS offset amount for the days in each period and computed a total overpayment of
$48,287.56 for the period August 1, 2008 through April 28, 2018, representing 3,558 days of
overpayment.

3

By letter dated May 21, 2018, OWCP informed appellant that it would begin deducting the
portion of SSA age-related retirement benefits attributable to her federal service from her 28-day
periodic compensation benefits beginning April 29, 2018.
In a preliminary determination dated August 10, 2018, OWCP related that appellant was
overpaid compensation in the amount of $48,287.56 for the period August 1, 2008 through
April 28, 2018 because the SSA/FERS offset was not applied to payments for this period. It
determined that she was at fault in the creation of the overpayment because she was aware or
should have reasonably been aware that she received a payment of compensation to which she was
not entitled. OWCP advised appellant of the actions she could take if she disagreed that the
overpayment occurred, the amount of the overpayment, or that she was at fault in the creation of
the overpayment. It enclosed an overpayment recovery questionnaire (Form OWCP-20) to
determine if recovery of the overpayment could be waived, if she was subsequently found to be
without fault, and to determine a reasonable repayment method. OWCP further requested that
appellant provide supporting financial documentation, including copies of income tax returns,
bank account statements, bills, pay slips, and any other records to support income and expenses.
It advised her that it would deny waiver of recovery of the overpayment if she failed to furnish the
requested financial information within 30 days, and noted that no further request for waiver would
be considered until the requested information was furnished.
On August 15, 2018 appellant requested a prerecoupment hearing by teleconference. She
contested that the overpayment occurred.
The prerecoupment hearing was held on January 24, 2019, at which appellant was
represented by counsel. The hearing representative explained to counsel that if the fault finding
regarding appellant’s overpayment was changed to without fault, OWCP would review appellant’s
financial information upon submission of a Form OWCP-20 for consideration of waiver. By letter
dated January 24, 2019, OWCP provided appellant’s counsel with a Form OWCP-20.
In a completed Form OWCP-20 dated January 29, 2019, appellant advised that she
received $1,699.00 in monthly SSA benefits. She listed monthly expenses of $400.00 for food,
$50.00 for clothing, $20.00 for oil changes, $56.00 for automobile insurance, $100.00 for
prescriptions, $50.00 for electricity, $102.93 for a telephone, $83.00 for water, and $40.00 for lawn
service. Appellant indicated that she owed a creditor $10,000.00 and had $150.00 cash on hand.
No documentation of her income or expenses were included. Appellant explained that she was
without fault because she had advised OWCP about her receipt of SSA benefits and that she fully
understood reporting responsibilities.
By decision dated April 8, 2019, OWCP’s hearing representative found that appellant
received an overpayment of compensation in the amount of $48,287.56 for the period August 1,
2008 through April 28, 2018 and modified the preliminary finding of fault, finding appellant
without fault as there was no evidence that appellant was aware that the receipt of SSA age-related
retirement benefits concurrent with disability/wage-loss compensation benefits was prohibited.
He calculated her expenses to be $881.93 per month based on appellant’s undocumented expenses
and noted that she did not require substantially all her monthly income to meet her living expenses.
The hearing representative determined that the overpayment would be repaid in installments of

4

$400.00 per month, which would allow the overpayment to be repaid within a reasonable amount
of time while minimizing interest charges and hardship on appellant.
LEGAL PRECEDENT -- ISSUE 1
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.9 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.10
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.11 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.12
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$48,287.56 for the period August 1, 2008 through April 28, 2018, for which she was not at fault,
as she concurrently received SSA age-related retirement benefits while receiving FECA wage-loss
compensation benefits without appropriate offset.
SSA paid appellant age-related retirement benefits beginning August 2008. OWCP paid
her compensation for an LWEC until April 28, 2018 without offsetting the portion of SSA agerelated retirement benefits due to her federal service. As noted, a claimant cannot receive both
FECA compensation for wage loss and the portion of SSA age-related retirement benefits that are
attributable to his or her federal service for the same period.13 Appellant received SSA age-related
retirement benefits based on her federal service concurrent with compensation for an LWEC from
OWCP without an appropriate offset, and thus an overpayment of compensation was created.14
To determine the amount of the overpayment, OWCP calculated the portion of the SSA
benefits that were attributable to federal service. It received documentation from SSA providing
appellant’s SSA rate with FERS and without FERS for the period August 1, 2008 through
April 28, 2018. OWCP calculated the amount that should have been offset during the relevant
9

5 U.S.C. § 8102(a).

10

Id. at § 8116.

11

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

12

FECA Bulletin No. 97-09 (February 3, 1997).

13

Id.

14

See id.

5

period based on information provided by SSA. The Board has reviewed OWCP’s calculation of
benefits received by appellant for the period August 1, 2008 through April 28, 2018 and finds that
an overpayment of compensation in the amount of $48,287.56 was created.15
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”16 Section 10.438 of OWCP’s regulations provides 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.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.17
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 OWCP’s regulations.18 Section 10.436 provides that 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 income (including compensation benefits) to meet current ordinary
and necessary living expense, 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.19 Therefore for
waiver of recovery of the overpayment under the defeat the purpose of FECA standard, appellant
must show that he or she needs substantially all of his or her current income to meet current
ordinary and necessary living expenses, and that assets do not exceed the resource base.20 An
individual is deemed to need substantially all of his or her current income to meet current ordinary

15

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020);
R.B., Docket No. 19-0571 (issued June 12, 2020).
16

5 U.S.C. § 8129.

17

20 C.F.R. § 10.438.

18

Id. at §§ 10.434-10.437.

19

Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that 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. Id. at Chapter 6.400.4a(2).
20

Id.

6

and necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.21
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.22
While appellant submitted a completed Form OWCP-20 dated January 29, 2019, she failed
to furnish any financial documentation to support her income and expenses. OWCP’s hearing
representative found that, if appellant’s accounting of her income and expenses was accepted,
absent supporting financial documentation, appellant’s listed monthly income of $1,699.00
exceeded her listed expenses of $881.9 by more than $50.00. Appellant therefore did not need
substantially all of her monthly income to meet current ordinary and necessary living expenses
and she had not established that recovery of the overpayment would defeat the purpose of FECA.23
There is also no evidence to support that appellant gave up a valuable right or changed her position
for the worse, in reliance on her FECA compensation. Appellant, therefore, did not establish that
recovery of the overpayment was against equity and good conscience.24
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery.25
On appeal counsel noted that appellant was financially unable to afford the repayment of
the debt based on her current income and that she had been hospitalized for a mental condition for
an uncertain duration at the time of appeal. With respect to the recovery of an overpayment, the
Board’s jurisdiction is limited to those cases where OWCP seeks recovery from continuing
compensation benefits.26 As appellant was not in receipt of continuing wage-loss compensation
at the time of OWCP’s overpayment determination, the Board does not have jurisdiction over the
method of recovery of the overpayment in this case.27

21

Id.

22

Id. at § 10.436.

23

Id.

24

See R.D., Docket No. 19-1598 (issued April 17, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020).

25

Id.

26

L.L., Docket No. 19-0097 (issued March 20, 2020); A.B., Docket No. 18-0915 (issued October 24, 2018).

27

See id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.

7

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $48,287.56, for which she was not at fault, as she concurrently
received SSA age-related retirement benefits while receiving FECA wage-loss compensation
benefits for the period August 1, 2008 through April 28, 2018 without appropriate offset. The
Board further finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 22, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS -DIVISION OF ENERGY EMPLOYEES’
COMPENSATION, Jacksonville, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 17-0673
Issued: December 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 4, 2017 appellant filed a timely appeal from an October 24, 2016 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 to consider the merits of the case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty, as alleged.
On appeal, appellant alleges that the stress of her job and being involved in an Equal
Employment Opportunity Commission (EEOC) complaint caused her emotional condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts as set forth in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are set forth below.
On August 9, 2010 appellant, then a 49-year-old senior claims examiner, filed a traumatic
injury claim (Form CA-1) alleging that on July 19, 2010 she became agitated due to a work
situation and was unable to control her mood swings. She alleged that a physician determined
that she suffered an anxiety attack due to job-related stress. Appellant stopped work on
July 19, 2010. The employing establishment controverted the claim, noting that appellant had not
identified a specific work incident.
In response to OWCP’s request for further information, appellant submitted a
September 15, 2010 letter setting forth the basis for her claim. She noted that prior to
February 2009, she had not experienced any hospitalization or treatment for any emotional
condition. Appellant alleged that on February 1, 2009, her supervisor, A.W., assigned her to
supervise claims examiner L.G., despite the fact that they did not speak to each other. Shortly
after this assignment, L.G. filed a complaint. Appellant had spoken with an EEO counselor and
was given instructions as how to attempt to resolve the issues between the two of them.
Appellant explained that she wrote L.G. an e-mail pursuant to these instructions, but that shortly
thereafter the district director told her that she should not have sent the e-mail due to its tone.
Appellant noted that her mid-term review in April 2009 did not relate any problems or
deficiencies, but that on June 15, 2009 appellant was removed from A.W.’s supervision and
placed under M.L.’s supervision. She stated that she was told that she was transferred to assist
the unit in cleaning up the case load, but that she felt that the reassignment was a result of the
EEO complaint by L.G. Appellant noted that in the subsequent three months her evaluation was
downgraded from exemplary to effective, but the only factors that changed were the claims
examiners she was monitoring and her supervisor. She alleged that from this point forward, she
had problems with errors and she felt she was “singled out” in unit meetings. Appellant
explained that she was under care of a primary care physician and therapist for depression and
anxiety attacks. She believed that both of these conditions were not caused by her employment
but that her work situation exacerbated her conditions.
In an October 22, 2010 letter, supervisor M.L. related that she supervised appellant
commencing July 19, 2010. She noted that appellant was assigned to her unit as part of a routine
reorganization of staff and was warmly welcomed. On July 27, 2009 M.L. assigned appellant to
mentor two claims examiners. She noted that at this point she had no knowledge of appellant’s
work quality, performance, or conduct. M.L. noted that she began to find errors when sampling
cases that appellant had reviewed and she would call appellant into her office to discuss her
findings. Since appellant stated that she did not need training, M.L. indicated that a senior
claims examiner would work with her on her responses to congressional inquiries. She discussed
her efforts to make appellant more attentive, but continued to notice errors. M.L. noted
continuing and consistent errors in work quality including unfamiliarity with sections of the
2

Docket No. 13-1391 (issued August 13, 2014); Docket No. 12-1359 (issued December 12, 2012).

2

procedure manual, coding errors, an erratic and occasionally demeaning attitude, and chronic
oversights in reviewing claims examiners work.
M.L. also explained that she did not know appellant had left work on July 19, 2010 until
she discovered a leave authorization signed by supervisor A.W. She also noted that supervisor
A.W. approved leave for the next day, and that appellant remained off work. On October 12,
2010 appellant resumed duty without restrictions and was immediately assigned to another unit.
M.L. also noted additional potential stressors and factors in appellant’s life.
On July 21, 2010 appellant was seen by Dr. Julianni Zaiden, a Board-certified family
practitioner, who assessed appellant with hyperlipidemia, elevated glucose, and depressive
disorder. Dr. Zaiden related that appellant would be disabled from work for two weeks. In a
report dated July 30, 2010, she indicated that appellant had clinical depression and anxiety which
began in February 2009. Dr. Zaiden noted that appellant’s condition was well controlled with
medication until recently, but that in the past month appellant had been experiencing mood
changes as well as extreme agitation and lack of concentration which interfered with her ability
to work as a claims consultant. She noted that appellant’s anxiety and depression were ongoing
issues, perhaps even lifelong. Dr. Zaiden opined, however, that once her symptoms are well
controlled with medicine and therapy, appellant should be able to function at work once more.
On July 30, 2010 Jane A. Sievers, a licensed clinical social worker, noted that appellant
was diagnosed around April 2009 with depressive disorder and was prescribed antidepressants.
She noted that appellant was under a significant amount of stress at work and over the past two
years had developed a number of symptoms, including sleep disturbance, appetite disturbance,
panic or anxiety attacks, anxious and depressed mood, anhedonia, impaired concentration, and
crying spells. Ms. Sievers indicated that appellant’s condition had certainly been exacerbated by
her working conditions, if not caused by them. She further indicated that appellant was unable to
work at that time due to the intensity of her symptoms. On September 3, 2010 Ms. Sievers noted
that appellant would not be able to return to work on September 7, 2010. She noted that
appellant’s condition improved minimally, but that when confronted with any employmentrelated contact, appellant still experienced a depressed mood, exacerbated anxiety symptoms,
impaired concentration, and a very labile demeanor. Ms. Sievers indicated that appellant was
quite emotionally fragile and lacking the resilience necessary to function in the work
environment.
By decision dated December 2, 2010, OWCP denied appellant’s claim as it determined
that she had not established any compensable factors of her federal employment.
By letter dated November 29, 2010 and received by OWCP on December 6, 2011,
appellant requested reconsideration of the December 2, 2010 decision. At that time, she filed an
occupational disease claim (Form CA-2) alleging that she suffered from stress, depression, and
anxiety attacks causally related to her federal employment. Appellant noted that she was
assigned to complete a unit project and was circumvented by a coworker. She alleged that it was
known by her supervisor that this could be a problem, and that shortly after she was assigned to
coach and mentor this coworker, she filed an EEO complaint.

3

On December 6, 2011 appellant submitted an undated statement. Initially, she alleged
that she erred in filing a Form CA-1 as a Form CA-2 was more appropriate. Appellant described
her stress while working with supervisor A.W. and disputed supervisor M.L.’s comments. She
contested M.L.’s assertions that she was unfamiliar with her work when she started as her
supervisor, and that M.L. had provided support to improve her work quality. Appellant noted
mistakes were made when she did not take time to pay attention to details as she was rushing out
of fear of not meeting her standards and that M.L. charged her with unfair errors. She disputed
that she had any serious outside stressors. Appellant also indicated that although she thought
being transferred out of M.L.’s unit would be a new beginning, it became even more stressful as
she was constantly living in fear of retaliation with regard to L.G.’s EEO action and fear of
receiving unwarranted errors. She argued that she had established a pattern of abuse and unfair
supervisory actions which caused undue stress that ultimately led to her anxiety attack. In a
separate statement, also received on December 6, 2011, appellant provided further allegations
with regard to her interactions with L.G. including that L.G. refused to sign comments, would
not listen to her comments, poked her a few times on her shoulder, and stormed past her while
saying, “Have fun talking about me all day.”
In support of her claim, appellant submitted copies of internal e-mails. E-mails between
supervisor A.W. and appellant on February 21, 2009, related a discussion regarding tension
between appellant and L.G. concerning work assignments and personal interaction. A.W.
suggested that appellant make efforts to focus more on work and less on personality issues with
L.G., and to remember that as a senior claims examiner she needed to set an example for the
others and not take things personally. In a March 5, 2009 e-mail to L.G., appellant stated that
she would like to take this opportunity to try and stop this foolishness, that she did not know
what she had done that caused L.G. to have this attitude, but that appellant was tired of being
disrespected by L.G.’s childish and hostile behavior towards her. In e-mails between L.G. and
appellant dated from March 9, 2009 through March 12, 2009, there were discussions with regard
to work changes and missing information, and differences of opinion as to instructions and
conversations. In a March 26, 2009 e-mail to H.S., L.G. indicated that there was a serious
communication problem and that it was starting to affect her health. She noted that a meeting
was scheduled with J.B. on March 30, 2009. In a March 26, 2009 e-mail to L.G., supervisor
A.W. indicated that she spoke with appellant and that appellant indicated that when she
attempted to speak with L.G., she had headphones on and would not acknowledge her. A.W.
reiterated that there was a serious communication issue and that OWCP claimants were
suffering. In a March 27, 2009 e-mail, H.S. asked L.G. if a mediator had been contacted yet, and
stated that if mediation did not resolve the issue, she could go forward with her complaint.
Appellant also submitted numerous documents in support of her claim including copies
of recommended decisions that she wrote with comments written on them, copies of handwritten
error reports, comments on cases she received from her supervisor, quality service review forms,
and a copy of the organizational chart for the office. She also enclosed a copy of a settlement
agreement dated October 5, 2010 between the employing establishment and her with regard to
appellant being reassigned and her supervisors. In addition, appellant submitted statements and
letters on her behalf including a statement by S.P., a coworker and friend, discussing appellant’s
work and mood. She also submitted a copy of a favorable letter from a claimant and another
favorable letter from a claims examiner.

4

In an October 7, 2010 psychological evaluation, Dr. Michelle Vollan, a clinical
psychopharmacologist, diagnosed generalized anxiety disorder with some agoraphobic features
and adjustment disorder with depression. She noted that appellant’s current experiences may
have placed her in a position where she was frustrated and depressed, but this was a temporary
condition. Dr. Vollan indicated that appellant’s anxiety appeared to be of a more long-standing
duration and needed to be addressed in therapy sessions. She also suggested medication.
By decision dated May 4, 2012, OWCP denied appellant’s reconsideration request as it
determined that it was untimely filed and failed to demonstrate clear evidence of error. On
June 8, 2012 appellant filed an appeal with the Board. By decision dated December 12, 2012,
the Board set aside OWCP’s May 4, 2012 decision and remanded the case because it found that
appellant’s reconsideration request was timely filed, and that OWCP should apply the
appropriate standard of review for a timely reconsideration request.3
By decision dated March 8, 2013, OWCP denied appellant’s reconsideration request. It
determined that the evidence did not support that OWCP erroneously applied or interpreted a
point of law and did not contain a relevant legal argument not previously considered. OWCP
found that the evidence submitted was cumulative, repetitive, or irrelevant, and insufficient to
warrant merit review.
On May 22, 2013 appellant again filed an appeal with the Board. In a decision dated
August 13, 2014, the Board set aside OWCP’s March 8, 2013 decision and remanded the case as
the Board determined that OWCP improperly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a). The Board noted that appellant submitted
specific allegations with regard to interactions with a subordinate claims examiner, and this
evidence was relevant to appellant’s claim for an emotional condition.4
By decision dated December 18, 2014, OWCP denied modification of the May 4, 2012
decision. It reviewed the evidence that appellant submitted and determined that she had not
established a compensable factor of employment as defined by FECA.
On December 17, 2015 appellant requested reconsideration. She submitted more internal
e-mail correspondence, written by herself and others, dated from February 21, 2009 through
May 10, 2010. These e-mails discussed various issues that arose during her work including
issues regarding assignment of cases, coding issues, instances of disagreement with colleagues
over how a case should be handled, and errors in claims she reviewed. Appellant resubmitted
other documents concerning her work. She also submitted correspondence with regard to her
evaluation and a copy of her evaluation.
In a September 15, 2010 report, Dr. Zaiden confirmed that appellant was diagnosed with
anxiety and depression which began approximately 18 months ago. She noted that appellant was
treated and was stable until recently. Dr. Zaiden noted that appellant’s symptoms became worse
approximately two months ago. She opined that, although appellant’s condition was not caused
3

Docket No. 12-1359 (issued December 12, 2012).

4

Docket No. 13-1391 (issued August 13, 2014).

5

by her job, it was definitely aggravated by stress at work. Dr. Zaiden noted that appellant’s long
term prognosis was favorable and that it was just a matter of finding the right medications and
therapy. She noted that at this time appellant’s symptoms of depressed mood, crying, anxiety,
and lack of focus are still present, and that she was unable to perform any duty at work.
Dr. Zaiden also submitted an October 1, 2010 note wherein Ms. Sievers indicated that appellant
should be ready to return to work on October 11, 2010. Ms. Sievers noted that although
appellant had improved considerably and is able to conduct herself appropriately most of the
time, her increased levels of liability around work issues continue to exacerbate her emotional
condition to an untenable degree. She indicated that another week of short-term disability should
increase her emotional resilience to a more tolerable extent. In an October 4, 2011 note,
countersigned by Dr. Zaiden, Ms. Sievers summarized her treatment of appellant. She noted that
appellant presented herself for evaluation on July 23, 2010 after having an anxiety attack at work
on July 19, 2010, and that appellant had been in psychotherapy regularly since that time.
Ms. Sievers noted that she believed that appellant has not regained her positive outlook, and that
this was because of her stressful working conditions.
By decision dated October 24, 2016, OWCP denied modification of its December 18,
2014 decision. It determined that appellant had not established that the additional allegations
had occurred. Furthermore, OWCP determined that appellant had not provided evidence to
support abuse or error on the part of the employing establishment regarding the accepted events
that were not compensable factors of 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, that an injury was caused in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 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.6
To establish a claim for an emotional condition in the performance of duty, an employee
must submit the following: (1) medical evidence establishing that he or she has an emotional or
psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged to
have caused or contributed to his or her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to his or her
emotional condition.
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.7 Workers’ compensation law does not apply
5

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

20 C.F.R. § 10.5(q).

6

to each and every injury or illness that is somehow related to an employee’s employment.8
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.9 Where
the disability results from an employee’s emotional reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.10
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.11 In claims for a mental disability attributed to work-related
stress, the claimant must submit factual evidence in support of her allegations of stress from
harassment or a difficult working relationship. The claimant must specifically delineate those
factors or incidents to which the emotional condition is attributed and submit supporting factual
evidence verifying that the implicated work situations or incidents occurred as alleged. Vague or
general allegations of perceived harassment, abuse, or difficulty arising in the employment are
insufficient to give rise to compensability under FECA. Based on the evidence submitted by the
claimant and the employing establishment, OWCP is then required to make factual findings
which are reviewable by the Board. The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Board.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.13 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.14
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.15
8

L.D., 58 ECAB 344 (2007).

9

A.K., 58 ECAB 119 (2006).

10

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

11

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
12

D.S., Docket No. 15-0585 (issued July 11, 2016); Paul Trotman-Hall, 45 ECAB 229 (1993) (Groom, Alternate
Member, concurring).
See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
13

14

See William H. Fortner, 49 ECAB 324 (1998).

15

Ruth S. Johnson, 46 ECAB 237 (1994).

7

For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the facts alleged or implicated by the employee did, in fact,
occur.16 Mere perceptions of harassment or discrimination are not compensable under FECA.17
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.18 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.19 Perceptions and feelings
alone are not compensable. To establish entitlement for benefits, a claimant must establish a
basis in fact for the claim by supporting his or her allegations with probative and reliable
evidence.20
ANALYSIS
Appellant does not attribute her claimed emotional condition to her regular or specially
assigned duties as a senior claims examiner under Cutler.21 Rather, she alleged that she
sustained an emotional condition as a result of a number of alleged employment events. OWCP
denied appellant’s claim because it determined that she had not established any compensable
factors under FECA. The Board must initially review whether the alleged events are
compensable employment factors under the terms of FECA.
The reaction to assigned work duties is a compensable work factor.22 The Board has held
that emotional reactions to situations in which an employee is trying to meet his or her position
requirements are compensable.23 Appellant has alleged that her relationship with L.G., an
employee whom she was supervising, and actions of her supervisors caused her emotional
condition.
In claims for an emotional condition attributable to a difficult relationship, appellant must
submit factual evidence in support of her allegations of stress from a difficult working
relationship.24 Appellant alleged a difficult relationship between herself and L.G., a claims
examiner she was supervising. The evidence establishes that appellant was assigned to supervise
L.G. and that L.G. and appellant exhibited serious issues with regard to communication and
mutual respect. Appellant has related that she and L.G. were not speaking to each other at the
time that she became L.G.’s supervisor. The evidence establishes a personality conflict between
16

K.W., 59 ECAB 271 (2007).

17

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

18

J.F., 59 ECAB 331 (2008).

19

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005).

20

L.M., Docket No. 13-267 (issued November 15, 2013).

21

See Lillian Cutler, supra note 10.

22

Supra note 10.

23

A.N., Docket No. 15-1220 (issued September 27, 2016); Trudy A. Scott, supra note 10.

24

F.C. Docket No. 16-0091 (issued August 4, 2016); Paul Trotman-Hall, 45 ECAB 229 (1993). .

8

appellant and L.G. However a personality conflict is not in and of itself a compensable factor of
employment.25
In multiple e-mails written in February and March 2009, there is evidence of hostility
between L.G. and appellant. However, appellant has submitted no witness statements nor other
corroborating evidence supporting her specific statements regarding L.G.’s actions.26 Without
such corroborating evidence, appellant failed to establish that any specific statements actually
were made by L.G. or that any specific improper events occurred.27
Appellant also made numerous allegations related to administrative and personnel
matters. In Thomas D. McEuen,28 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under FECA would attach if the factual circumstances
surrounding the administrative or personnel actions established error or abuse by the employing
establishment superiors in dealing with the claimant. Absent evidence of such error or abuse, the
resulting emotional condition must be considered self-generated and not employment-generated.
In determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.29
Appellant alleged that she was assigned to supervise L.G. despite the fact that they did
not speak to each other. She also contended that she was assigned to supervisor M.L. as a result
of her issues with L.G. Appellant also raised concerns with how work was assigned and coded.
The Board has held that the assignment of work is an administrative function, and the manner in
which a supervisor exercises his or her discretion falls outside the coverage of FECA.30 Absent
evidence of error or abuse, appellant’s mere disagreement or dislike of managerial action is not
compensable.31 The decision of management to assign appellant to supervise L.G. and its
decision to reassign her to M.L. was within its discretion, as was the assignment of cases. Error
or abuse in discharging management duties has not been established, and these allegations are
therefore not compensable.32
25

See Carol J. Stewart, Docket No. 95-307 (issued February 26, 1997).

26

See N.H., Docket No. 14-0360 (issued October 6, 2016).

27

See V.L, Docket No. 08-1597 (issued January 2, 2009).

28

See Thomas D. McEuen, supra note 13.

29

See Richard J. Dube, 42 ECAB 916, 920 (1991).

30

See D.C., Docket No. 16-1870 (issued May 19, 2017).

31

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt, Jr., 56 RECAB 117 (2004) allegations
such as improperly assigned work duties, which related to administrative or personnel matters, unrelated to the
employee’s regular or specifically assigned work duties do not fall within the coverage of FECA); see also T.H.,
Docket No. 16-1164 (issued February 24, 2017).
32

J.M., Docket No. 16-0312 (issued June 22, 2016).

9

Similarly, appellant has not shown a compensable factor of employment with regard to
her treatment by her supervisors with regard to criticism of her work, or her performance
evaluations. The Board has held that a manager or supervisor must be allowed to perform his or
her duties and that an employee will at times disagree with actions taken.33 There is no evidence
that management acted abusively with regard to the review of appellant’s work or with regard to
her evaluation. The Board notes that although there was a settlement agreement submitted with
regard to appellant’s informal complaint, this settlement agreement specifically noted that there
was no concession of wrongdoing. Absent evidence of error or abuse, appellant’s mere
disagreement or dislike of a managerial action is not compensable.34
Additionally, appellant has not substantiated her allegation of harassment that she was
“singled out” at meetings. To the extent that she claims harassment and discrimination, the
Board has held that harassment and discrimination by supervisors and coworkers, if established
as occurring and arising from the performance of work duties can constitute a compensable work
factor.35 A claimant, however, must substantiate allegations of harassment and discrimination
with probative and reliable evidence.36 Mere perceptions of harassment or discrimination are not
compensable under FECA,37 and unsubstantiated allegations of harassment or discrimination are
not determinative of whether such harassment or discrimination occurred.38 Appellant has
submitted no evidence in support of her allegation of being singled out at meetings. Absent
evidence of error or abuse, any resulting emotional condition must be considered self-generated
and not employment generated.39
The Board finds that appellant failed to establish a compensable employment factor. As
she has not established any compensable factor of employment, the Board need not address the
medical evidence of record.40
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

33

See E.M., Docket No. 16-1695 (issued June 27, 2017).

34

See Barbara J. Latham, supra note 31; see also Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbrath, 44
ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988). The Board found that allegations such as improperly assigned work duties, which related to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned work duties and do not
fall within the coverage of FECA.
35

T.G., 58 ECAB 189 (2006); Dorothea M. Belnavis, 57 ECAB 311 (2006).

36

C.W. 58 ECAB 137 (2006).

37

T.M., Docket No. 15-1774 (issued January 20, 2016).

38

S.S., Docket No. 15-1454 (issued December 15, 2015).

39

D.F., Docket No. 15-1057 (issued December 7, 2015).

40

See F.M., Docket No. 16-1504 (issued June 26, 2017).

10

CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 24, 2016 is affirmed.
Issued: December 19, 2017
Washington, DC

Christopher J. Godfrey, 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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, North Reading, MA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1279
Issued: March 3, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 17, 2020 appellant filed a timely appeal from a January 17, 2020 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.2
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the overpayment
for the period July 1, 2013 through September 16, 2016 because appellant received wage-loss
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 17, 2020 decision, appellant submitted additional evidence to
OWCP. 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.

compensation at an improper rate; and (2) whether OWCP properly required recovery of the
overpayment by deducting $175.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 2, 2003 appellant, then a 37-year-old part-time flexible mail handler, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a right foot injury when she fell
down while in the performance of duty. OWCP accepted her claim for right foot fracture and right
lower limb mononeuritis. It paid wage-loss compensation on the supplemental rolls beginning
October 5, 2003 and placed appellant on the periodic rolls effective August 8, 2004.
By letter dated August 3, 2007, OWCP requested that appellant complete and return an
enclosed Form CA-1032. The CA-1032 form also informed her that a claimant who has no eligible
dependents was paid compensation at 66 2/3 percent of the applicable pay rate and a claimant who
has one or more eligible dependents is paid compensation at 75 percent of the applicable pay rate.
It advised appellant that she may claim compensation for a dependent if she had on or more of the
following:
“(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; and (e) a parent who totally depends on you for support.”
On October 11, 2007 OWCP received a Form CA-1032 dated September 21, 2007, in
which appellant indicated that she was claiming dependency status on account of her two sons,
J.F., Jr., date of birth May 16, 1989 and L.F., date of birth September 21, 1992, who were still in
high school. Appellant provided subsequent CA-1032 forms received on July 8, 2009,
November 5, 2010, and January 11, 2012, in which she continued to indicate that she was claiming
dependency status on account of her son, L.F.
In a January 12, 2012 letter, OWCP requested that appellant provide verification of fulltime student status or incapacity for self-support with respect to her son L.F. It provided her with
a student dependency form to complete and return with respect to full time student status. OWCP
also advised appellant that if her son L.F. was incapable of self-support, she may claim continuing
compensation by submitting a medical report from the attending physician.
On January 23, 2012 appellant responded to OWCP’s letter. She checked a box marked
“Yes” indicating that her son, L.F., was attending school on a full time basis. Appellant noted that
3

Docket No. 18-1344 (issued August 22, 2019).

2

her son was still in high school and had special needs. A school official completed Part B of the
form and reported that her son attended a local high school.
Appellant continued to submit Forms CA-1032 dated August 8, 2012, August 21, 2013,
September 13, 2014, and September 3, 2015, in which she indicated that she was claiming
dependency status on account of her son, L.F. In the September 3, 2015 Form CA-1032, she noted
that her son had a mental illness and was not capable of self-support.
On September 9, 2016 OWCP received a Form CA-1032 dated August 31, 2016, in which
appellant indicated that she was no longer claiming dependency status on account of her son, L.F.
OWCP adjusted her wage-loss compensation rate from 75 percent to 66 2/3 percent, effective
September 18, 2016.
In a preliminary overpayment determination dated February 1, 2017, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $13,983.86 for
the period July 1, 2013 through September 17, 2016 because she was not entitled to receive
compensation at the augmented rate of 75 percent for one dependent. It provided a calculation of
the overpayment. OWCP also found that appellant was at fault in the creation of the overpayment
because she accepted a payment that she knew or reasonably should have known was incorrect. It
provided appellant an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20). Additionally, OWCP notified her 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.
On March 6, 2017 appellant requested a telephone conference with the district office
regarding the issues of fault and possible waiver. She alleged that the overpayment occurred at no
fault of her own because her son had special needs and a mental disability, which required
psychiatric care. Appellant also submitted a completed Form OWCP-20, signed on February 27,
2017, in which she provided figures for her monthly income, monthly expenses, and assets.
OWCP received bank account statements, billing statements, utility bills, and credit card
statements.
In a February 27, 2017 statement, appellant indicated that her son had been on medication
for a number of years due to mental illness, was in special classes, and saw a psychiatrist at a
Children’s Hospital in Boston, MA. She provided psychiatric progress notes and medical reports
and submitted various documents regarding appellant’s eligibility for special education services.
In a development letter dated April 26, 2017, OWCP advised appellant that it needed
verification of student status in order to determine her son’s eligibility for dependency and
provided her with a student dependency form to complete and return.
In a student dependency form received by OWCP on May 7, 2017 a school official
completed Part B of the form and noted that appellant’s son attended vocational school from
September 2016 to February 2017.
By decision dated February 22, 2018, OWCP finalized the February 1, 2017 preliminary
determination, finding that appellant had received an overpayment of compensation in the amount
of $13, 983.86, for the period July 1, 2013 through September 17, 2016, because she received
3

wage-loss compensation at an improper rate for one dependent. It noted that she did not submit
sufficient evidence to demonstrate that she had a qualified dependent during this period which
would entitle her to receive augmented compensation at the 75 percent rate. OWCP also found
that appellant was at fault in the creation of the overpayment, thereby precluding waiver of
recovery of the overpayment.
Appellant filed an appeal to the Board.
By decision dated August 22, 2019, the Board affirmed the February 22, 2018 decision in
part and remanded it in part. The Board found that OWCP had properly determined that appellant
had received an overpayment of compensation in the amount of $13,983.86 for the period July 1,
2013 through September 16, 2016 because she received wage-loss compensation at an improper
rate. The Board also found that OWCP did not properly determine that she was at fault in the
creation of the overpayment. The Board explained that the evidence of the record was insufficient
to establish that at the time that appellant completed the CA-1032 forms covering the period July 1,
2013 to September 16, 2016, she knew or should have known that her son was not an eligible
dependent under FECA. The case was remanded for OWCP to consider waiver of recovery of the
amount of overpayment.
OWCP subsequently issued an August 30, 2019 letter to appellant requesting that she
complete the enclosed Form OWCP-20 and include three months of financial statements in order
to determine whether she was entitled to waiver of recovery of the overpayment for the period
July 1, 2013 to September 17, 2016.
On September 27, 2019 OWCP received a Form OWCP-20 completed by appellant on
September 13, 2019. She reported a total monthly income of $2,701.00. Appellant also indicated
total monthly expenses of $2,763.35 including $1,856.35 for her mortgage, $350.00 for food,
$50.00 for clothing, $297.00 for utilities, and $210.00 for “other expenses.” She reported that she
had monthly payments totaling $80.00 to credit companies. Appellant noted that she had cash on
hand of $15.00 and a checking account balance of $3,360.46.
In a handwritten statement, appellant listed her expenses, including mortgage, water, trash,
real estate tax, electricity bill, dental, prescriptions, medical bills, credit cards, and
internet/television/cable bill for the past three months.
Appellant submitted bank statements dated June, July, and August 2019, mortgage billing
statements dated June, July, and August 2019, water and trash bills for May and August 2019, a
preliminary real estate tax bill for the fiscal year 2020, electricity utility billing statements for July,
August, and September 2019, medical bills dated June 17, July 15 and 31, and September 9, 2019,
health insurance explanation of benefit documents that covered dates of service in June and
August 2019, an internet/telephone and cable bill dated July 22, 2019, and retail credit card
statements dated July, August, and September 2019.
In an October 18, 2019 letter, OWCP requested information from appellant regarding her
Thrift Savings Plan (TSP) account or other retirement savings account.

4

On November 5, 2019 OWCP received appellant’s response to its October 28, 2019 letter.
Appellant responded “Yes” indicating that she had a TSP account. She submitted a letter from
TSP, which demonstrated that she had a current account balance of $13,768.94.
In a January 17, 2020 decision, OWCP denied waiver of recovery of the overpayment for
the period July 1, 2013 through September 17, 2016. It noted that appellant’s asset base exceeded
the amount of $6,200.00 for an individual and that she had not established that recovery would be
against equity and good conscience. OWCP determined that recovery of the overpayment would
require deducting $175.00 from her continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.4
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.5
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship 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.6 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
$50.00.7 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.8 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.9 Non liquid assets include, but are not limited
to, the fair market value of an owner’s equity in property such as a camper, boat, second home,

4

5 U.S.C. § 8129(a)-(b).

5

D.H., Docket No. 19-0384 (issued August 12, 2019); V.H., Docket No. 18-1124 (issued January 16, 2019); L.S.,
59 ECAB 350 (2008).
6

20 C.F.R. § 10.436(a)(b).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4(a)(3) (September 2018).
8

Id. at Chapter 6.400.4(a)(2) (September 2018).

9

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

5

furnishings/supplies, vehicle(s) above the two allowed per immediate family, retirement account
balances (such as Thrift Savings Plan or 401(k)), jewelry, and artwork.10
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an 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.11 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.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.13
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered. As noted above, even if a claimant is found without fault in the creation of the
overpayment, recovery of the overpayment is still required unless adjustment or recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.14
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she has not shown both that she needs substantially all of her
current income to meet ordinary and necessary living expenses and that her assets do not exceed
the allowable resource base. In the Form OWCP-20, appellant indicated that she had $3,360.46 in
her checking account. She also provided a letter dated October 23, 2019 from TSP, which
confirmed that she had $13,768.94 in her TSP account balance. As noted above, in determining
whether recovery of the overpayment would defeat the purpose of FECA, OWCP considers
whether assets exceed a resource base of $6,200.00 for an individual.15 Accordingly, the Board
finds that appellant, who reported a total of $17,129.40 in liquid and non-liquid assets, has not met
the standard for waiver of recovery of the overpayment because her assets exceed the allowable
resource base.16 Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is not necessary for OWCP to

10

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

11

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

12

Supra note 7 at Chapter 6.400.4(c)(3) (September 2018).

13

A.C., Docket No. 18-1550 (issued February 21, 2019).

14

Supra note 5.

15

Supra note 8.

16

L.L., Docket No. 19-0097 (issued March 20, 2020); H.F., Docket No. 17-0101 (issued September 5, 2017).

6

consider the first prong of the test, i.e., whether she needs substantially all of her current income
to meet ordinary and necessary living expenses.17
On appeal, appellant argues that denial of waiver of recovery would cause her severe
financial hardship. She contends that she was living at the poverty level and had to apply for food
stamps and fuel assistance, had multiple medical bills due to her life-long neurological disease,
and she was unable to pay for basic necessities. The Board notes, however, that appellant had
sufficient assets that could be used for repayment of the debt and to fund her budget shortfalls.18
The Board also finds that appellant did not establish that she was entitled to waiver on the
basis that recovery of the overpayment would be against equity and good conscience. Appellant
has not shown, for the reasons noted above, that she would experience severe financial hardship
in attempting to repay the debt or that she has relinquished a valuable right or changed her position
for the worse in reliance on the payments which created the overpayment.19
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly
refused to waive recovery of the overpayment.20
LEGAL PRECEDENT -- ISSUE 2
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.21
Section 10.441(a) of OWCP’s regulations22 provides in pertinent part:
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.23

17

M.H., Docket No. 19-1497 (issued September 9, 2020).

18

Id.

19

See B.C., Docket No. 19-0629 (issued June 2, 2020); L.D., Docket No. 18-1317 (issued April 17, 2019);
William J. Murphy, 41 ECAB 569, 571-72 (1989).
20

S.W., Docket No. 20-0363 (issued November 23, 2020).

21

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

22

Id. at § 10.441(a).

23

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

7

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly required recovery of the overpayment by deducting
$175.00 from appellant’s continuing compensation payments every 28 days.
In determining whether appellant could repay the overpayment through deductions of
$175.00 from her continuing compensation payments, OWCP took into consideration the financial
information she submitted as well as factors set forth in 20 C.F.R. § 10.441 and found that this
method of recovery would minimize any resulting hardship, while at the same time liquidating the
debt in a reasonably prompt fashion.24 Therefore, the Board finds that OWCP properly required
recovery of the overpayment by deducting $175.00 from her compensation payments every 28
days.25
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation and properly required recovery of the overpayment by deducting $175.00 from
appellant’s continuing compensation payments every 28 days.

24

J.R., Docket No. 17-0181 (issued August 12, 2020); L.F., Docket No. 15-0489 (issued May 11, 2015).

25

J.B., Docket No. 19-1734 (issued November 5, 2020).

8

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9