United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sutter Creek, CA, Employer
__________________________________________

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

Docket No. 20-0363
Issued: November 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 4, 2019 appellant filed a timely appeal from a November 22, 2019 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 determined that appellant received an
overpayment of compensation in the amount of $108,193.47, for which she was not at fault, as she
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 22, 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.

age-related retirement benefits for the period March 1, 2013 through March 30, 2019 without an
appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior decision are incorporated herein by reference. The relevant facts are set forth below.
On December 13, 1996 appellant, then a 49-year-old rural mail carrier, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome due to factors of her federal employment including repetitive motions required in the
sorting, bundling, and delivery of mail. A notification of personnel action (Form SF50) dated
June 7, 1995 noted appellant’s retirement plan as FERS. OWCP accepted the claim for bilateral
carpal tunnel syndrome, right elbow contusion, and right lesion of ulnar nerve.4 It placed appellant
on the periodic compensation roll commencing December 16, 2012.5
On April 1, 2019 OWCP received from SSA a March 23, 2019 Federal Employees’
Retirement System (FERS)/(SSA) dual benefits calculation form which indicated that appellant
had been in receipt of SSA age-related retirement benefits since March 2013. The form showed
SSA benefit rates with and without a FERS offset. Beginning March 1, 2013, appellant’s SSA
rate with FERS was $1,550.00 and without FERS was $119.20; beginning December 1, 2013,
appellant’s SSA rate with FERS was $1,573.20 and without FERS was $120.90; beginning
December 1, 2014 and December 1, 2015 appellant’s SSA rate with FERS was $1,599.90 and
without FERS was $122.90; beginning December 1, 2016 appellant’s SSA rate with FERS was
$1,604.60 and without FERS was $123.20; beginning December 1, 2017 appellant’s SSA rate with
FERS was $1,636.60 and without FERS was $125.60; and beginning December 1, 2018
appellant’s SSA rate with FERS was $1,682.40 and without FERS was $129.10.
A FERS offset calculation worksheet indicated that OWCP utilized a 28-day FERS offset
amount of $12,971.54 for the 275 days from March 1 to November 30, 2013; $17,475.48 for the
365 days from December 1, 2013 to November 30, 2014; $17,772.69 for the 365 days from
December 1, 2014 to November 30, 2015; $17,821.38 for the 366 days from December 1, 2015 to
November 30, 2016; $17,825.64 for the 365 days from December 1, 2016 to November 30, 2017;
$18,181.81 for the 365 days from December 1, 2017 to November 30, 2018; and $6,144.92 for the

3

Docket No. 15-0598 (issued June 22, 2015).

4

The Board notes that the current claim has been consolidated with OWCP File No. xxxxxx625, with an injury
date of February 20, 1996, which was accepted for right elbow contusion; and OWCP File No. xxxxxx366, which was
accepted for temporary aggravation of bilateral basal joint arthrosis, with an injury date of January 2, 1998. OWCP
File No. xxxxxx680 serves as the master file.
5

By decision dated January 13, 2015, OWCP reduced appellant’s compensation effective January 13, 2015 based
on her capacity to earn wages in the constructed position of surveillance system monitor. By decision dated June 22,
2015, the Board found that OWCP properly reduced appellant’s compensation effective January 13, 2015 based on
her capacity to earn wages in the constructed position of surveillance system monitor. However, the Board remanded
the case to OWCP for a recalculation of her wage-earning capacity based on recent weekly wages for the surveillance
system monitor position. See supra note 3.

2

120 days from December 1, 2018 to March 30, 2019. OWCP calculated a total overpayment of
$108,193.47.
In a letter dated April 9, 2019, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related
retirement benefits were attributed to her years of federal service as an employee under the FERS
program and that portion required an offset from her FECA compensation benefits. OWCP
indicated that appellant was receiving gross FECA compensation of $1,887.00 every 28 days, the
SSA offset was $1,433.82, other deductions of $170.93, which resulted in a new four-week FECA
benefit in the amount of $282.55. The adjustment was effective March 31, 2019.
On April 10, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $108,193.47, because she concurrently received
FECA wage-loss compensation benefits and SSA age-related retirement benefits for the period
March 1, 2013 through March 30, 2019, without an appropriate offset. It cited the FERS/SSA dual
benefits calculation form and OWCP’s FERS offset calculation worksheet and explained that it
had calculated the overpayment of compensation by determining the difference between her SSA
benefit rate with and without FERS for each period, and then multiplying that amount by the
number of days in each period. OWCP further found that appellant was without fault in the
creation of the overpayment, as she was not aware, nor could she have reasonably been aware, that
it had paid compensation incorrectly. It requested that she complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation.
Additionally, OWCP notified appellant that within 30 days of the date of the letter, she could
request a final decision based on the written record or a prerecoupment hearing.
On April 22, 2019 appellant elected benefits from OPM effective April 17, 2019.
In an overpayment action request form dated May 1, 2019, appellant requested a
prerecoupment hearing regarding possible waiver and recovery of the overpayment since the
overpayment occurred through no fault of her own. She noted that she would have suspended her
FECA benefits and elected OPM retirement benefits and enrolled in Medicare Part B if she had
been timely informed of the overpayment. Appellant also requested waiver based on equity and
good conscience, as she had honestly reported all information requested by OWCP. On an attached
overpayment recovery questionnaire, she noted monthly income of $1,682.00 from “SSA, TBD
amount in FERS as applied fees were not received, and $8.00 in dividends.” Appellant also
indicated that she had a dependent adult daughter. She noted that her monthly expenses were
$3,224.00 with assets totaling $90,337.00.6 Appellant attached documentation confirming SSA
amount of $1,682.00 from SSA; bank account balance of $1,156.73; available balance of
$15,015.54; and medical expenses in the amounts of $2,719.82 and $232.00.
A telephonic hearing was held on September 9, 2019. Appellant expressed frustration with
the need for offset and the resulting large overpayment. With respect to income, she reported a
dependent adult daughter who was unemployed and did not financially contribute to the

6
This included cash on hand, checking account balance, savings account balance which included balance of life
insurance from husband’s death, stocks and bonds, and a ROTH IRA inherited from her husband.

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household.7 With respect to monthly income, appellant indicated that she had a very small
dividend and her SSA benefit. She noted receipt of a single provisional payment of over $2,000.00
for the April SSA benefit, after an OPM payment deduction of $741.32. Appellant testified that
her savings account, which held life insurance proceeds, was reduced to $13,000.00. She revised
the estimate of the balance of her husband’s 401K account to approximately $150,000.00.
Appellant noted significant recent expenditures to her home, including a well repair and additional
expenses in feed and veterinary care for several elderly large farm animals on the property. The
hearing representative explained that she needed more substantial documentation to consider her
request for waiver. The record was held open for 30 days for the submission of any additional
evidence.
Appellant submitted numerous invoices and statements, including invoices for well repair,
gate repair, veterinary bills, books for college, and medical bills. The monthly amount due or
whether an outstanding balance remained was not indicated. Evidence of a September 3, 2019 net
monthly annuity of $905.37 from SSA was also provided. In handwritten notes, appellant provided
expenses totaling $2,295.00. This included $210.00 gas; $100.00 clothing; $595.00 housing;
$400.00 food; $85.00 internet; $40.00 cell phone; $46.00 heating fuel; $20.00 trash; $102.00 cable;
$115.00 electric; $328.00 horse feed; $491.00 hay; $45.00 dog food; $30.00 cat food; $28.00
chicken food; and $60.00 property tax.
By decision dated November 22, 2019, an OWCP hearing representative finalized
OWCP’s preliminary overpayment determination finding that appellant received an overpayment
of compensation in the amount of $108,193.47,8 for which she was not at fault, as she concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits for the period
March 1, 2013 through March 30, 2019. The hearing representative denied waiver of recovery of
the overpayment finding that appellant reported significant assets, which varied between
$90,000.00 and $175,000.00, and that her liquid assets were being used to fund her budget
shortfalls.
LEGAL PRECENT -- ISSUE 1
Section 8102(a) 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 his
or her federal employment.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 When an overpayment has been made to an

7
The hearing representative noted that OWCP previously attempted to establish the dependent status of the adult
daughter following the death of appellant’s husband, but no responsive evidence was received.
8

The hearing representative subtracted an OPM annuity offset payment of $741.32 from the $108,193.47
overpayment amount to find an adjusted current balance of $107,452.15.
9

5 U.S.C. § 8102(a).

10

Id. at § 8116.

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individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled.11
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related benefits that are attributable to federal
service of the employee.12 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.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $108,193.47 as she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits for the period March 1, 2013 through
March 30, 2019 without an appropriate offset.
In its November 22, 2019 decision, OWCP found that an overpayment of compensation
was created for the period March 1, 2013 through March 30, 2019. The overpayment was based
on the evidence received from SSA with respect to retirement benefits paid to appellant. Appellant
has not challenged the fact or amount of the overpayment. The record indicates that, while
appellant was receiving compensation for total disability under FECA, she was also receiving SSA
age-related retirement benefits. A claimant cannot receive both compensation for wage-loss and
SSA age-related benefits attributable to federal service for the same period.14 The information
provided by SSA established that appellant received SSA age-related retirement benefits that were
attributable to federal service during the period March 1, 2013 through March 30, 2019.
Consequently, the fact of overpayment has been established.15
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of age-related SSA retirement
benefits. SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing March 1, 2013 through December 1, 2018. OWCP provided its calculations for each
relevant period based on the SSA worksheet. No contrary evidence was provided.

11

Id. at § 8129(a).

12
20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
13

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

14

H.H., Docket No. 18-0674 (issued September 3, 2020); see E.K., Docket No. 18-0587 (issued October 1, 2018).

15

J.R., Docket No. 19-1418 (issued March 4, 2020); L.M., Docket No. 19-1197 (issued January 8, 2020).

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The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period March 1, 2013 through March 30, 2019 and finds that an overpayment of compensation in
the amount of $108,193.47 was created.16
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”17
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.18 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 $50.00.19 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.20 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.21 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, 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.22
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the

16

R.F., Docket No. 20-0159 (issued October 15, 2020); see D.C., Docket No. 17-0559 (issued June 21, 2018).

17

5 U.S.C. § 8129(b).

18
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
19
Id. at Chapter 6.400.4.a(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
20

See supra note 18 at Chapter 6.400.4.a(2) (September 2018).

21

Id. at Chapter 6.400.4.b(3).

22

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

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worse.23 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.24
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $108,193.47
overpayment of compensation.26
The fact that a claimant is without fault in creating an overpayment does not preclude
OWCP from recovering the overpayment.27 Even though 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.28
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. The Board finds that appellant, who reported over $90,000.00 and up to a possible
$150,000.00 in total assets, has not met the standard for waiver of recovery of the overpayment
because her assets exceed the allowable resource base. While appellant suggested before OWCP
and the Board that she had insufficient monthly cash flow to satisfy her obligations, the hearing
representative found that appellant was using her liquid assets to fund her budget shortfalls and
that those same funds could be used for repayment of the debt. The hearing representative further
found that appellant had $640.00 in surplus income.29 Because appellant has not met the second
prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of

23

20 C.F.R. § 10.437(a)(b).

24

Id. at § 10.437(b)(1).

25

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

26

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

27

See D.H., Docket No. 19-0384 (issued August 12, 2019): V.H., Docket No. 18-1124 (issued January 16, 2019).

28

20 C.F.R. § 10.436.

29
The hearing representative found $3,913.00 total monthly income minus $3,224.00 total monthly expenses, minus
$50.00 statutory amount equaled $640.00 surplus income.

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FECA, it is however not necessary for OWCP to 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.30
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.31 Although she has asserted that she would have altered her retirement plans had
she been informed of the offset, she has not submitted any evidence to establish that such decision
would have been financially advantageous had such notice been provided.
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, she has failed to show that OWCP
improperly refused to waive recovery of the overpayment.32
On appeal appellant argues that OWCP improperly denied her request for waiver of
recovery of the overpayment as it incorrectly reported her income and understated her monthly
expenses. However, the Board notes that the fact that her assets exceed the allowable resource
base served as the basis for denial of appellant’s waiver request.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $108,193.47, for which she was not at fault, as she concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits for the period
March 1, 2013 through March 30, 2019. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment.

30

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

31

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).
32

B.C., id.; see V.T., Docket No. 18-0628 (issued October 25, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Mays Landing, NJ,
Employer
__________________________________________

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

Docket No. 11-995
Issued: April 16, 2012

Oral Argument March 7, 2012

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

JURISDICTION
On April 13, 2011 appellant filed a timely appeal from the October 26, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) reducing his wage-loss
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation,
effective October 24, 2010, based on its determination that the constructed position of a legal
investigator fairly and reasonably represented his wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 15, 2004 appellant, a 30-year-old civil aviation security specialist (air
marshal), filed an occupational disease claim alleging that he had developed blood clots due to
time spent flying in a seated position. OWCP accepted his claim for left leg deep venous
thrombosis and placed him on the periodic rolls.2
In an August 12, 2005 second opinion report, Dr. William J. Schickler, a Board-certified
vascular surgeon, reviewed results of an April 2005 venous ultrasound, which confirmed
persistent thrombosis of the left superficial femoral and popliteal veins with noncompressability
and extensive thrombosis consistent with a chronic occlusion of this vessel secondary to deep
vein thrombosis (DVT). He opined that he was unable to perform a job that required prolonged
standing. Further, the fact that there had been no significant recanalization of the major DVT of
the left lower extremity made it unlikely that his disability associated with this accepted injury
would resolve.
Appellant was referred for vocational rehabilitation services on December 7, 2005. On
August 14, 2006 OWCP informed him that it had reviewed the rehabilitation plan for return to
work and had determined that the job duties of a private investigator (DOT# 376.267-018) and
parole officer (DOT# 195.107-046) were within his medical restrictions, as both positions would
allow him the feasibility of no prolonged sitting or standing for more than two hours at a time, as
outlined by Dr. Schickler. He was advised that he would be provided with 90 days of placement
services and that, at the end of the rehabilitation program, whether he was actually employed or
not, OWCP would in all likelihood reduce his compensation.
In a June 6, 2007 second opinion report, Dr. Eric Wellons, a Board-certified vascular
surgeon, diagnosed DVT femoropopliteal and chronic venous insufficiency, which he indicated
was being treated with Coumadin. He opined that appellant could perform some work.
Extended periods of time in a vehicle and extended periods of standing were prohibited.
OWCP referred appellant to Dr. Peter Dovgan, a Board-certified vascular surgeon, for
another second opinion examination and an opinion regarding his work capacity. In a
November 5, 2008 report, Dr. Dovgan provided examination findings and a history of injury and
treatment. Bilateral femoral, popliteal, dorsalis pedis and posterior tibial pulses were both
present and normal. There were mild amounts of left leg swelling and mild skin changes on the
left which would be most consistent with lipodermal sclerosis near the medial malleolus. There
were no active ulcerations or breakdown. Dr. Dovgan diagnosed chronic venous insufficiency
status post multiple deep vein thromboses; likely hypercoagulable state, yet unidentified with
recurrent DVTs on Coumadin in the past; limb swelling, venostasis disease secondary to prior
deep vein thromboses. He opined that appellant’s history of DVT would limit his ability to stand
or perform activities for long periods of time, and that sitting for long periods of time would be
2

Previous claims include December 13, 1999 and February 2, 2000 claims for neck and back injuries (File Nos.
xxxxxx285 and xxxxxx983), which were combined under File No. xxxxxx983. Appellant sustained a left ankle
injury on April 14, 2004 (File No. xxxxxx555).

2

disadvantageous and potentially dangerous.
Dr. Dovgan stated that the deep venous
insufficiency would likely be lifelong and chronic. He opined that appellant was unable to
perform the duties of a civil aviation security specialist because of his inability to sit or stand for
prolonged periods of time. Dr. Dovgan recommended that appellant continue to take Coumadin
for life. In a supplemental report dated November 24, 2008, he opined that appellant could
perform the duties of a private investigator or probation and parole officer if he was not required
to sit or stand for continuous periods, without relief, in excess of 45 minutes.
On June 26, 2009 OWCP advised appellant of its determination that Dr. Dovgan’s
November 5, 2008 report constituted the weight of medical evidence in this case and established
that he was capable of resuming full-time gainful employment. Accordingly, his case was being
referred for appropriate vocational rehabilitation services.
On April 14, 2010 a transferable skills analysis was conducted incorporating appellant’s
education (college degrees in criminal justice and behavioral psychology), past professional
work experience and residual physical functioning. The sedentary positions of legal investigator
and research assistant were found to exist in satisfactory numbers within appellant’s local labor
market and to be consistent with Dr. Dovgan’s medical restrictions. Both positions required
lifting, carrying, pushing and pulling 10 pounds occasionally and involved mostly sitting and
some standing or walking for brief periods of time. The rehabilitation counselor noted that
Dr. Dovgan opined that appellant would need to elevate his leg to prevent swelling. He stated
that the issues to be clarified before proceeding with placement services were: (1) whether the
fact that the jobs require mostly sitting was medically contraindicated; and (2) whether a medical
update should be obtained given the fact that the most recent medical was more than a year old.
In a letter dated May 19, 2010, OWCP informed appellant that the positions of legal
investigator or research assistant were within his limitations and that, therefore, he was expected
to cooperate fully so that he could return to work in one of the specified jobs. Appellant was
advised that he would receive 90 days of assistance to obtain employment. At the end of the 90day period, whether he was actually employed or not, OWCP would in all likelihood reduce his
compensation based on his ability to earn wages of $24,960.00 per year.
Appellant submitted a May 27, 2010 report from Dr. John Ellis, a Board-certified family
practitioner, who provided a history of appellant’s injuries and treatment and examination
findings. Examination of the left hip revealed tenderness over the anterior iliac crest and lateral
crest and decreased range of motion due to the DVT in the left leg. Examination of the left knee
revealed decreased range of motion due to venous engorgement and enlargement of the calf and
thigh. Examination of the calves reveals obvious palpable engorgement and enlargement of the
left calf and enlargement of the left thigh and superficial veins. There was tenderness over the
deep veins in the calf; depigmentation on the inner aspect of the left calf, left ankle and lateral
left calf; and marked superficial engorgement of the veins on the inner aspect of the left ankle
and foot. Dr. Ellis diagnosed DVT, left leg; tendinitis, left ankle, knee and hip due to venous
engorgement and antalgic gait in the left leg due to DVT; skin changes in the left leg due to
venous insufficiency; deranged cervical and lumbar discs with bilateral C5 and S1 nerve root
impingement. He noted that appellant’s thoracic and lumbar spine and the discs in his lower
back had been accepted by OWCP and discussed findings related to appellant’s prior claims.
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Dr. Ellis opined that appellant was permanently and totally disabled and unable to engage
in any type of gainful employment due to the DVT in his left leg, the insufficiency in his left calf
and into his thigh, and the continued severe swelling in his left lower leg. He was reportedly not
able to work as a private investigator, which required sitting and observing, and he could not do
research work on a computer in a library. Appellant was restricted from sitting, because the
bending of the knee causes decreased venous flow. He could not stand because standing causes
increased pressure and venous insufficiency in his left leg. Dr. Ellis opined that appellant had to
be able to lie down frequently and keep his leg elevated. He stated, “Returning to work under
supervision would put him at great risk for death.”
On September 17, 2010 OWCP notified appellant that it proposed to reduce his
compensation for wage loss as the medical and factual evidence established that he was no
longer totally disabled. Appellant was found partially disabled with the capacity to earn wages
as a legal investigator or researcher, at the rate of $480.00 per week, based upon Dr. Dovgan’s
November 5, 2008 second opinion report, which constituted the weight of the medical evidence.
Appellant was afforded 30 days to submit additional evidence concerning his capacity to earn
wages in the constructed position.
In an October 10, 2010 statement, appellant objected to OWCP’s proposed reduction,
contending that he was unable to perform the duties of the constructed positions. He argued that
Dr. Dovgan’s report provided restrictions that precluded the performance of those duties.
Appellant also argues that Dr. Dovgan’s report was not current.
By decision dated October 26, 2010, OWCP reduced appellant’s compensation benefits
effective October 24, 2010, based on its determination that the position of a legal investigator
was medically and vocationally suitable and represented his wage-earning capacity. It found a
new compensation rate every four weeks of $3,879.00 beginning November 20, 2010.3
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if they
fairly and reasonably represent his wage-earning capacity. Generally, wages actually earned are
the best measure of a wage-earning capacity and in the absence of evidence showing they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.5 If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if the employee has no actual earnings, his wage-earning capacity is determined with
due regard to the nature of his injury, his degree of physical impairment, his usual employment,
3

Appellant’s net compensation rate every four weeks after a deduction of $642.87 for court-ordered child support
was $2,807.41.
4

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

5

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

4

his age, his qualifications for other employment, the availability of suitable employment and
other factors and circumstances which may affect his wage-earning capacity in his disabled
condition.6
OWCP must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
Board has stated that the medical evidence upon which OWCP relies must provide a detailed
description of appellant’s condition.7 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.8
ANALYSIS
In its October 26, 2010 decision, OWCP reduced appellant’s compensation benefits
based upon his ability to earn the wages of a legal investigator. The Board finds that OWCP
failed to use a reasonably current medical evaluation in determining whether the constructed
position of legal investigator was medically suitable. Therefore, the October 26, 2010 decision
must be reversed.
OWCP determined that the selected position was medically suitable on the grounds that
the required duties of the position were within the restrictions provided in Dr. Dovgan’s
November 5, 2008 report. It is well established that a wage-earning capacity determination
must be based on a reasonably current medical evaluation.9 As Dr. Dovgan’s report was issued
two years prior to the October 26, 2010 decision, it does not provide probative evidence that the
selected position of legal investigator represented appellant’s wage-earning capacity on the date
of OWCP’s determination. The passage of time lessened its relevance on the nature and extent
of appellant’s current limitations.10
Dr. Dovgan provided restrictions which precluded standing or sitting for more than 45
minutes. His November 5, 2008 report reflected that appellant’s DVT condition was chronic and
lifelong. On April 14, 2010 the rehabilitation counselor stated that clarification was needed as to
whether the legal investigator position was “medically contraindicated” because it required
mostly sitting, and whether a medical update should be obtained, given the fact that the most
recent medical report was more than a year old at that time. OWCP was on notice that
appellant’s medical condition was fluid and continuous. Moreover, there were outstanding
concerns as to appellant’s ability to perform the duties of the constructed position and the
relevancy of the November 2008 medical report on which appellant’s restrictions were based.
6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

See William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28
ECAB 43 (1976).
8

John D. Jackson, 55 ECAB 465 (2004); Carl C. Green, Jr., 47 ECAB 737, 746 (1996).

9

Id.

10

See, e.g., Tyrone R. Porter, Docket No. 05-1779 (issued February 1, 2006) (where the Board reversed OWCP’s
decision reducing appellant’s benefits effective June 28, 2005 on the grounds that the September 29, 2003 medical
report on which it relied was not reasonably current.

5

OWCP relied, however, on the restrictions contained in an outdated report in making its wageearning capacity determination. It did not give due regard to the factors specified in section 8115
of FECA. Therefore, the Board finds that it did not discharge its burden of proof to justify the
reduction of appellant’s compensation.11
The Board notes that OWCP did not address Dr. Ellis’ opinion that appellant was
permanently and totally disabled and unable to engage in any type of gainful employment due to
the DVT in his left leg. While Dr. Ellis’ opinion may not have been sufficiently rationalized to
represent the weight of the medical evidence, this reasonably current report warranted further
development of the medical evidence regarding appellant’s work capacity.
For reasons stated herein, the Board will reverse the October 26, 2010 decision.12
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to justify the reduction of
appellant’s compensation on the grounds that he had the capacity to earn wages in the
constructed position of legal investigator. The medical evidence on which OWCP relied was not
reasonably current to establish relevant work limitations.

11

The Board also notes that Dr. Dovgan did not review a copy of the position description for the position of legal
investigator.
12

This case can be distinguished from M.A., 59 ECAB 624 (2008), where the Board found that OWCP properly
determined the employee’s wage-earning capacity effective April 17, 2005 based on medical restrictions dated
May 1, 2000. In M.A., the employee’s attending physician continued to treat him and submitted periodic reports
through February 12, 2004 reaffirming the May 1, 2000 restrictions.

6

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Tallahassee, FL, Employer
__________________________________________

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

Docket No. 13-1146
Issued: July 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2013 appellant filed a timely appeal from the March 1, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate reimbursement for
transportation costs and expenses for travel to the Mayo Clinic and Brooks Rehabilitation Center
in Jacksonville, FL.
FACTUAL HISTORY
OWCP accepted that on August 4, 2005 appellant, then a 46-year-old heating, ventilation
and air conditioning supervisor, sustained a sprain/strain of the rotator cuff of his right shoulder,
1

5 U.S.C. §§ 8101-8193.

sprain/strain of the supraspinatus of his left shoulder, rotator cuff syndrome and allied disorders
of his left shoulder and displacement of lumbar intervertebral disc without myelopathy due to
pulling a wire through a conduit.2 Appellant began performing limited-duty work for the
employer.
Appellant initially received treatment for his work-related conditions from Dr. Fred H.
Ross, a Board-certified family practitioner, practicing in Tallahassee, FL. He also underwent
physical therapy in Tallahassee which was authorized by OWCP.3
In an October 17, 2007 letter, OWCP advised appellant that he was authorized to change
his treating physician to Dr. Shane Shapiro, a Board-certified orthopedic surgeon, practicing at
the Mayo Clinic in Jacksonville, FL. It advised him regarding the procedures for obtaining
payment for expenses related to visits to Dr. Shapiro. Appellant began to be seen by Dr. Shapiro
in early November 2007. The record reveals that OWCP paid appellant for transportation costs
and expenses related to his periodic visits to receive medical treatment from Dr. Shapiro in his
Jacksonville office of the Mayo Clinic.4 OWCP also paid for transportation costs and expenses
related to appellant’s periodic physical therapy visits to the Brooks Rehabilitation Center in
Jacksonville, FL.
In a letter dated January 15, 2013, OWCP advised appellant that it proposed to terminate
reimbursement for transportation costs and expenses for travel to the Mayo Clinic and Brooks
Rehabilitation Center in Jacksonville effective February 15, 2013. It stated that it had
determined that it was not reasonable for appellant to travel over 100 miles one way to get
medical treatment as there were qualified physicians and physical therapy facilities in his local
commuting area that could treat him for his accepted conditions.5 OWCP noted that, under
5 U.S.C. § 8103, the United States shall furnish to an employee who is injured while in the
performance of duty, the services, appliances, and supplies prescribed or recommended by a
qualified physician, which the Secretary of Labor considers likely to cure, give relief; reduce the
degree or the period of disability, or aid in lessening the amount of the monthly compensation.
OWCP stated that, under its regulations at 20 C.F.R. § 10.402,6 when determining the use of
medical facilities, consideration must be given to the availability, the employee’s condition, and
the method and means of transportation. Generally, 50 miles from the place of injury, the
employing establishment, or the employee’s home, is a reasonable distance to travel, but other
pertinent factors must also be taken into consideration. OWCP stated, “You will be afforded 30
days from the date of this letter to submit the requested information to establish why this agency
should continue to authorize you to travel an excess of 100 miles each way to see a physician. If
2

OWCP had previously accepted that appellant sustained neck and right shoulder injuries due to prior work
incidents.
3

Appellant also received treatment from Dr. Nicomedo Macri, a Board-certified physical medicine and
rehabilitation physician.
4

On July 31, 2008 appellant underwent right shoulder surgery, including a proximal humeral arthroplasty, which
was authorized by OWCP.
5

Appellant’s home address was in Monticello, FL.

6

It appears that OWCP actually meant to refer to 20 C.F.R. § 10.315.

2

the information is not received within 30 days from the date of this letter, a decision will be
made based upon the evidence in file.”
In a January 21, 2013 report, Dr. Adam J. Wallace, an attending Board-certified pain
medicine physician at the Mayo Clinic in Jacksonville, reported his findings on examination. He
stated:
“Patient also presents us with a letter from [OWCP] requesting that he no longer
stay at the Mayo Clinic for further care as he should be able to find care closer to
his home. He is requesting further evaluation and continued workup here at Mayo
Clinic. We feel at this time that [appellant’s] best option would be a
comprehensive pain rehabilitation program, and it would be most beneficial if the
patient would be covered by workers compensation for this program. If he is not
to be covered for this program, it would be prudent to have a trial of spinal cord
stimulator electrode placement to try to help with the left buttock and lateral leg
pain. Again, this would be if workers[‘] compensation would pay for it. After the
trial, then we would consider permanent implantation if he does find this to be
beneficial trial.”
In a March 1, 2013 decision, OWCP terminated reimbursement for transportation costs
and expenses for travel to the Mayo Clinic and Brooks Rehabilitation Center in Jacksonville, FL
effective March 1, 2013. It found that the January 21, 2013 report of Dr. Wallace supported its
determination.7 OWCP stated, “[OWCP] has determine[d] that it is not reasonable for you to
travel over 100 miles one way to get medical treatment in Jacksonville, Florida, when there are
qualified physicians, pain management treatment and, physical therapy facilities of the
appropriate specialty available to you in your commuting area of Monticello, Florida.”
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.8
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the
amount of the monthly compensation.”9 Section 10.315 of OWCP’s regulations provide:
“The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel,
7

OWCP incorrectly referred to this report as being a report of Dr. Osbourne. However, the report was submitted
by Dr. Wallace.
8

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

9

5 U.S.C. § 8103.

3

OWCP will consider the availability of services, the employee’s condition, and
the means of transportation. Generally, a roundtrip distance of up to 100 miles is
considered a reasonable distance to travel. Travel should be undertaken by the
shortest route, and if practical, by public conveyance. If the medical evidence
shows that the employee is unable to use these means of transportation, OWCP
may authorize travel by taxi or special conveyance.”10
ANALYSIS
OWCP accepted that on August 4, 2005 appellant sustained a sprain/strain of the rotator
cuff of his right shoulder, sprain/strain of the supraspinatus of his left shoulder, rotator cuff
syndrome and allied disorders of his left shoulder and displacement of lumbar intervertebral disc
without myelopathy due to pulling a wire through a conduit.11 Appellant began performing
limited-duty work for the employer.
The record reveals that OWCP reimbursed appellant for transportation costs and
expenses related to his periodic visits to receive medical treatment from Dr. Shapiro, a Boardcertified orthopedic surgeon, at the Mayo Clinic in Jacksonville, FL. OWCP also reimbursed
transportation costs and expenses related to appellant’s periodic physical therapy visits to the
Brooks Rehabilitation Center in Jacksonville, FL.
In a March 1, 2013 decision, OWCP terminated reimbursement for transportation costs
and expenses for travel to the Mayo Clinic and Brooks Rehabilitation Center in Jacksonville
effective March 1, 2013. It stated that is was not reasonable for appellant to travel over 100
miles one way to get medical treatment in Jacksonville when there were qualified physicians,
pain management treatment and physical therapy facilities of the appropriate specialty available
to him in his commuting area of Monticello, FL.
The Board finds that OWCP did not meet its burden of proof to terminate reimbursement
for transportation costs and expenses for travel to the Mayo Clinic and Brooks Rehabilitation
Center in Jacksonville, FL.
OWCP based its termination of reimbursement for transportation costs and expenses for
travel to the Mayo Clinic and Brooks Rehabilitation Center in Jacksonville on its determination
that other appropriate physicians, pain management treatment and physical therapy facilities of
the appropriate specialty were available to appellant in his commuting area. It did not provide
any evidence to the record to support this finding. OWCP mentioned a January 21, 2013 report
of Dr. Wallace, an attending Board-certified pain medicine physician at the Mayo Clinic in
Jacksonville. It incorrectly asserted that the January 21, 2013 report of Dr. Wallace supported a
finding that other appropriate physicians, pain management treatment and physical therapy
facilities were available in appellant’s commuting area. In fact, however, Dr. Wallace suggested
that appellant receive a “continued workup here at Mayo Clinic” in a “comprehensive pain
10

20 C.F.R. § 10.315.

11

OWCP had previously accepted that appellant sustained neck and right shoulder injuries due to prior work
incidents.

4

rehabilitation program” and requested that these efforts be approved by OWCP. He did not
provide an opinion that it would become reasonable for appellant to continue receiving treatment
at the Mayo Clinic or Brooks Rehabilitation Center. OWCP has not submitted sufficient
evidence to support its termination of transportation costs and expenses for travel to these
facilities.
The Board finds that OWCP improperly terminated reimbursement for transportation
costs and expenses for travel to the Mayo Clinic and Brooks Rehabilitation Center in
Jacksonville, FL.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate reimbursement
for transportation costs and expenses for travel to the Mayo Clinic and Brooks Rehabilitation
Center in Jacksonville, FL.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 9, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-0558
Issued: May 16, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On January 13, 2017 appellant filed a timely appeal from a December 9, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the
appeal as No. 17-0558.
On May 2, 2016 appellant, then a 45-year-old tractor-trailer operator, filed a traumatic
injury claim (Form CA-1) for a right knee sprain that allegedly occurred earlier that day when he
was getting up from a seated position inside his truck. OWCP assigned the claim File No.
xxxxxx753. By decision dated July 18, 2016, OWCP denied the claim (File No. xxxxxx753) as
appellant failed to establish causal relationship. Appellant subsequently requested reconsideration.
In an August 22, 2016 nonmerit decision, OWCP denied further merit review pursuant to 5 U.S.C.
§ 8128(a). On September 12, 2016 appellant again requested reconsideration and submitted
additional medical evidence.
By decision dated December 9, 2016, OWCP reviewed the merits of the claim, but denied
modification of its July 18, 2016 decision. It found that the medical evidence submitted in support
of the reconsideration request contained an inaccurate history of injury. OWCP also noted that
appellant previously filed a claim for a right knee injury, under File No. xxxxxx078, that allegedly

occurred on November 16, 2015.1 In adjudicating the current claim, OWCP specifically
referenced medical evidence that it obtained from File No. xxxxxx078. However, it has not
combined the two case records, nor has it incorporated the referenced medical evidence into the
current case record.2
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes or drawings.3 Evidence may not be incorporated by reference, nor may evidence from
another claimant’s case file be used.4 Evidence contained in another of the claimant’s case files
may be used, but a copy of that evidence should be placed into the case file being adjudicated.5
All evidence that forms the basis of a decision must be in that claimant’s case record.6
Because OWCP neglected to include the referenced information from File No. xxxxxx078
in the current case record, the Board is not in a position to make an informed decision regarding
appellant’s entitlement to FECA benefits.7 Therefore, the case shall be remanded to OWCP for
further development. After OWCP has developed the record consistent with the above-noted
directive, it shall issue a de novo decision.

1

OWCP mistakenly identified the date of injury as November 16, 2016.

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000) (Cases should be doubled/combined when correct adjudication of the issues depends on frequent
cross-reference between files).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
4

Id.

5

Id.

6

Id.

7

See K.P., Docket No. 15-1945 (issued February 10, 2016); M.C., Docket No. 15-1706 (issued October 22, 2015).

2

IT IS HEREBY ORDERED THAT the December 9, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further action consistent
with this order.
Issued: May 16, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 18-0875
Issued: October 11, 2018

Case Submitted on the Record

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

JURISDICTION
On March 19, 2018 appellant filed a timely appeal from a March 1, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision, dated July 13, 2017, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 25, 2017 appellant, then a 47-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that, while in the performance of duty on May 5, 2017, he injured his left
shoulder when he “forcefully shut” the rear hatch on his employer-provided sport utility vehicle
(SUV).2 He indicated that he reached up with both arms to pull the rear hatch down, and
immediately felt pain in his left shoulder upon closing the hatch. Appellant did not stop work at
the time of the alleged injury. No additional evidence and/or information accompanied appellant’s
May 25, 2017 Form CA-1.
In a June 2, 2017 claim development letter, OWCP requested that appellant submit
additional factual information, as well as a comprehensive narrative medical report from his
treating physician that explained how shutting the SUV hatch caused his medical condition.
It afforded appellant 30 days to submit the requested information.
On June 13, 2017 Dr. W. David Bruce, a Board-certified orthopedic surgeon, treated
appellant for left shoulder pain. Appellant reported that, on May 5, 2017, while he was shutting
his truck tailgate, he experienced sudden left shoulder pain which persisted on and off since that
time. He previously had left shoulder surgery and reportedly was doing well until the May 5, 2017
incident. Dr. Bruce noted that hopefully it was “scar tissue,” but he was also concerned that it
could be a loose body. He performed an injection into the left subacromial bursa. Dr. Bruce’s
diagnoses included left shoulder primary osteoarthritis and loose body of the left shoulder.
Appellant was instructed to return if his condition did not improve.
In a July 13, 2017 decision, OWCP denied appellant’s traumatic injury claim, finding that
the medical evidence of record was insufficient to establish causal relationship between appellant’s
diagnosed left shoulder condition and the accepted May 5, 2017 employment incident. It noted
that Dr. Bruce failed to explain how closing the SUV door materially worsened appellant’s
preexisting shoulder condition.
On February 20, 2018 appellant requested reconsideration. He submitted the appeal
request form that accompanied OWCP’s July 13, 2017 decision. OWCP did not receive any
additional evidence or argument in support of appellant’s request for reconsideration.
By decision dated March 1, 2018, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Under section 8128(a) of FECA, OWCP has the discretion to reopen a case for review on
the merits.3 It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain

2

The incident occurred at the Mid-South Institute of Self-Defense Shooting, Lake Cormorant, MS.

3

5 U.S.C. § 8128(a).

2

review of the merits if his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.5
ANALYSIS
OWCP denied appellant’s traumatic injury claim because he failed to establish causal
relationship. Thereafter, it denied appellant’s timely reconsideration request, without a merit
review.
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Appellant also did not advance a relevant legal argument not previously
considered by OWCP or provide relevant and pertinent new evidence not previously considered
by OWCP. His February 20, 2018 reconsideration request consisted only of a mark on an appeal
request form indicating he wanted reconsideration. Appellant did not offer any argument or submit
any evidence in support of his request. He suggested no reason for OWCP to reconsider the denial
of his traumatic injury claim. Such a request is insufficient to warrant reopening his case for
further merit review.6 Accordingly, appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal appellant asserts that his physician feels that he established “causal
relationship.” On his application for review (Form AB-1), he referenced a February 1, 2018 letter
from his physician, which reportedly addressed the issue of causal relationship. OWCP considered
all the evidence received at the time of its March 1, 2018 decision, and the February 1, 2018
document referenced by appellant is not part of the record.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b).

6

See L.B., Docket No. 14-2064 (issued February 3, 2015); J.A., Docket No. 14-1447 (issued October 21, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the March 1, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 11, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, GRANBURY POST
OFFICE, Granbury, TX, Employer
__________________________________________

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Appearances:
Stanley Buchanan, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0905
Issued: February 15, 2022

Case Submitted on the Record

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

JURISDICTION
On May 5, 2021 appellant, through her representative, filed a timely appeal from a
November 16, 2020 merit decision and a January 12, 2021 nonmerit decision of the Office of
Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the January 12, 2021 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 n ot 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.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $25,534.45 for which she was without fault, as she concurrently received Social
Security Administration (SSA) age-related retirement benefits and FECA wage-loss compensation
for the period October 1, 2015 through September 20, 2020 without appropriate offset; (2) whether
OWCP properly denied waiver of recovery of the overpayment; (3) whether OWCP properly
required recovery of the overpayment by deducting $800.00 every 28 days from appellant’s
continuing compensation payments; and (4) whether OWCP properly denied appellant’s request
for an oral hearing pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On July 2, 2015 appellant, then a 63-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 18, 2015 she sustained a contusion of the right knee when she
hit the ground on that date while in the performance of duty. OWCP accepted the claim for internal
derangement of the right knee, derangement of the medial meniscus of the right knee, right knee
effusion, contusion of the right lower leg, lumbar and pelvis sprain, contusions of the bilateral
front wall of the thorax, and multiple fractures of the left ribs. It paid appellant wage-loss
compensation on the supplemental rolls beginning August 7, 2015 and on the periodic rolls
beginning March 6, 2016.
On the reverse side of the July 2, 2015 claim form and in a notification of personnel action
(Standard Form (SF)-50) dated January 21, 2016, appellant’s retirement plan was identified as
under the Federal Employees Retirement System (FERS).
On November 6, 2018 OWCP provided SSA with a FERS/SSA dual benefits form, to
obtain information regarding appellant’s receipt of SSA age-related retirement benefits.
On November 20, 2018 SSA completed a dual benefits form, which indicated appellant’s
SSA benefit rates with a FERS offset and without a FERS offset from April 2017 through
December 2018. Beginning April 2017, the SSA rate with FERS was $960.00 and without FERS
was $778.00. Beginning December 2017, the SSA rate with FERS was $980.00 and without FERS
was $793.00. Beginning January 2018, the SSA rate with FERS was $1,008.00 and without FERS
was $793.00. Beginning December 2018, the SSA rate with FERS was $1,036.00 and without
FERS was $816.00. OWCP received a second completed dual benefits form from SSA dated
November 20, 2018 that indicated appellant’s SSA benefit rates with a FERS offset and without a
FERS offset from January 2016 through December 2018. Beginning January 2016, the SSA rate
with FERS was $1,179.00 and without FERS was $766.00. Beginning December 2016, the SSA
rate with FERS was $1,183.00 and without FERS was $768.00. Beginning August 2017, the SSA
rate with FERS was $1,183.00 and without FERS was $783.00. Beginning October 2017, the SSA
rate with FERS was $1,206.00 and without FERS was $783.00. Beginning December 2017, the
SSA rate with FERS was $1,230.00 and without FERS was $799.00. Beginning December 2018,
the SSA rate with FERS was $1,263.50 and without FERS was $821.50.
In an automated compensation payment system (ACPS) form dated December 13, 2018,
OWCP noted that it had applied the FERS/SSA offset to appellant’s compensation effective
December 1, 2018.

2

OWCP completed a FERS offset overpayment calculation worksheet on December 13,
2018, using the effective dates and figures from the dual benefits calculation form received from
SSA containing dates from November 2017 through December 2018, to calculate a total
overpayment of $5,046.66.
In a letter dated December 14, 2018, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits, which were
attributable to federal service, her FECA wage-loss compensation had been adjusted. Appellant’s
28-day payment after SSA offset was listed as $3,265.58.
OWCP completed a FERS offset calculation worksheet on April 26, 2019 using the
effective dates and figures from the dual benefits form received from SSA, dated November 20,
2018, containing dates from January 2016 through December 2018, and calculated a total
overpayment of $14,843.54.
On May 22, 2019 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $14,843.54 had been created because appellant
received SSA age-related retirement benefits based upon her federal service, without appropriate
offset, at the same time she received FECA wage-loss compensation for the period November 1,
2017 through December 8, 2018. It explained that the overpayment occurred because her
compensation was not reduced by the FERS/SSA amount. OWCP found appellant without fault
in the creation of the overpayment and forwarded an overpayment action request form and an
overpayment recovery questionnaire (Form OWCP-20). It requested that she provide supporting
financial documentation including income tax returns, bank account statements, bills and cancelled
checks, pay slips, and any other records to support her reported income and expenses. OWCP
attached the FERS offset calculation worksheet dated April 26, 2019. It afforded appellant 30
days to respond.
On June 14, 2019 appellant, through her representative, requested a prerecoupment hearing
before a representative of OWCP’s Branch of Hearings and Review. Appellant contested the fact
and amount of the overpayment, and requested waiver of recovery of the overpayment. In a Form
OWCP-20 of even date, she listed her total monthly income as $5,870.51, and her total monthly
expenses as $4,045.66. Appellant listed total assets of $13,400.00. She submitted financial
documentation to support her assets, certain expenses, assets, and debts.
By decision dated September 5, 2019, OWCP finalized its preliminary overpayment
determination of May 22, 2019, finding that appellant received an overpayment of compensation
in the amount of $14,843.54 for the period November 1, 2017 through December 8, 2018, because
she concurrently received SSA age-related retirement benefits and FECA wage-loss compensation
for that period without appropriate offset. It found that she was without fault in the creation of the
overpayment and required recovery by deducting $313.00 from her continuing compensation
payments every 28 days.
By decision dated October 18, 2019, OWCP vacated its September 5, 2019 decision,
finding that a hearing request had been timely received prior to that decision’s issuance.
By decision dated January 6, 2020, OWCP’s hearing representative conducted a
preliminary review and determined that the case was not in posture for a hearing at that time. The
hearing representative found that OWCP did not properly explain how appellant’s overpayment
3

was calculated in its May 22, 2019 preliminary overpayment determination and remanded that the
case for reissuance of a preliminary overpayment determination, including an explanation as to
how the overpayment was calculated.
On July 1, 2020 OWCP provided SSA with another FERS/SSA dual benefits form for its
completion.
On July 20, 2020 SSA completed a dual benefits form, which reported appellant’s SSA
benefit rates with a FERS offset and without a FERS offset from October 2015 through
December 2019. Beginning October and December 2015, the SSA rate with FERS was $1,162.00
and without FERS was $766.00. Beginning January 2016, the SSA rate with FERS was $1,179.00
and without FERS was $766.00. Beginning December 2016 and August 2017, the SSA rate with
FERS was $1,183.00 and without FERS was $768.00. Beginning October 2017, the SSA rate with
FERS was $1,206.00 and without FERS was $783.00. Beginning December 2017, the SSA rate
with FERS was $1,230.00 and without FERS was $799.00. Beginning December 2018, the SSA
rate with FERS was $1,263.50 and without FERS was $821.50. Beginning December 2019, the
SSA rate with FERS was $1,284.60 and without FERS was $834.60. SSA noted that appellant
had been originally paid October through December 2015 and that an overpayment had been
recovered, resulting in an increase in October 2017.
OWCP completed a FERS offset calculation worksheet on September 17, 2020, using the
effective dates and figures from the July 20, 2020 dual benefits calculation form received from
SSA, to find a total overpayment in the amount of $25,534.45 had been created during the period
October 1, 2015 through September 12, 2020.
On September 18, 2020 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $25,534.45 had been created because
appellant received SSA age-related retirement benefits based upon her federal service, without
appropriate offset, at the same time she received FECA wage-loss compensation for the period
October 1, 2015 through September 12, 2020. It explained that the overpayment occurred because
her compensation was not reduced by the FERS/SSA amount. OWCP found appellant without
fault in the creation of the overpayment and forwarded an overpayment action request form and a
Form OWCP-20. It again requested that she provide supporting financial documentation including
income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other
records to support her reported income and expenses. OWCP afforded appellant 30 days to
respond. No response was received.
By decision dated November 16, 2020, OWCP finalized its preliminary overpayment
determination of September 18, 2020, finding that appellant received an overpayment of
compensation in the amount of $25,534.45 for the period October 1, 2015 through September 20,
2020 because she concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation for that period without appropriate offset. It denied waiver of recovery of the
overpayment and required recovery by deducting $800.00 from her continuing compensation
payments.
On November 11, 2020 appellant, through her representative, requested a prerecoupment
hearing before a representative of OWCP’s Branch of Hearings and Review regarding possible
waiver of recovery of the overpayment.

4

By decision dated January 12, 2021, OWCP denied appellant’s request for a hearing,
finding that her November 11, 2020 request for a prerecoupment hearing was untimely.
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.4 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. 5
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.6 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. 7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation for which she
was without fault, as she concurrently received SSA age-related retirement benefits and FECA
wage-loss compensation for the period October 1, 2015 through September 20, 2020 without
appropriate offset.
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss compensation benefits under FECA, she was also receiving SSA age-related retirement
benefits based upon her federal service. A claimant cannot receive both wage -loss compensation
under FECA and SSA age-related retirement benefits attributable to federal service for the same
period.8 The information provided by SSA established that appellant received SSA age -related
retirement benefits that were attributable to federal service, without appropriate offset for the
period October 1, 2015 through September 20, 2020. Thus, the Board finds that the fact and period
of overpayment have been established.
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of the overpayment.
To determine the amount of the overpayment, the portion of SSA’s age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received conflicting

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

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

7

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

8

Id. See also T.S., Docket No. 21-0028 (issued September 3, 2021); P.B., Docket No. 20-0862 (issued
November 25, 2020); N.B., Docket No. 18-0795 (issued January 4, 2019).

5

dual benefits worksheets from SSA with respect to the specific amount of appellant’s SSA agerelated retirement benefits that were attributable to federal service.
On November 20, 2018 SSA completed a dual benefits form, which reported appellant’s
SSA benefit rates with a FERS offset and without a FERS offset from April 2017 through
December 2018. Beginning April 2017, the SSA rate with FERS was $960.00 and without FERS
was $778.00. Beginning December 2017, the SSA rate with FERS was $980.00 and without FERS
was $793.00. Beginning January 2018, the SSA rate with FERS was $1,008.00 and without FERS
was $793.00. Beginning December 2018, the SSA rate with FERS was $1,036.00 and without
FERS was $816.00.
OWCP received a second completed dual benefits form from SSA dated November 20,
2018 that reported appellant’s SSA benefit rates with a FERS offset and without a FERS offset
from January 2016 through December 2018. Beginning January 2016, the SSA rate with FERS
was $1,179.00 and without FERS was $766.00. Beginning December 2016, the SSA rate with
FERS was $1,183.00 and without FERS was $768.00. Beginning August 2017, the SSA rate with
FERS was $1,183.00 and without FERS was $783.00. Beginning October 2017, the SSA rate with
FERS was $1,206.00 and without FERS was $783.00. Beginning December 2018, the SSA rate
with FERS was $1,263.50 and without FERS was $821.50.
On July 20, 2020 SSA completed a dual benefits form, which reported appellant’s SSA
benefit rates with a FERS offset and without a FERS offset from October 2015 through
December 2019. Beginning October and December 2015, the SSA rate with FERS was $1,162.00
and without FERS was $766.00. Beginning January 2016, the SSA rate with FERS was $1,179.00
and without FERS was $766.00. Beginning December 2016 and August 2017, the SSA rate with
FERS was $1,183.00 and without FERS was $768.00. Beginning October 2017, the SSA rate with
FERS was $1,206.00 and without FERS was $783.00. Beginning December 2017, the SSA rate
with FERS was $1,230.00 and without FERS was $799.00. Beginning December 2018, the SSA
rate with FERS was $1,263.50 and without FERS was $821.50. Beginning December 2019, the
SSA rate with FERS was $1,284.60 and without FERS was $834.60.
The SSA dual benefits forms differed regarding the amounts of appellant’s SSA benefit
rates without FERS, but OWCP did not seek clarification from SSA as to which figures were
correct or why they differed. The case must, therefore, be remanded for clarification from SSA
regarding appellant’s age-related retirement benefit rate. It shall then issue a new preliminary
overpayment determination with a new overpayment action request form, a new Form OWCP-20,
and instructions for her to provide supporting financial information. After this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.9
CONCLUSION
The Board finds that appellant received an overpayment of compensation for which she
was without fault, as she concurrently received SSA age-related retirement benefits and FECA
wage-loss compensation for the period October 1, 2015 through September 20, 2020 without
appropriate offset. The Board further finds that this case is not in posture for decision regarding
the amount of the overpayment.

9

In light of the Board’s disposition of Issue 1, the remaining issues are rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: February 15, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, LENOX HILL
STATION, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1404
Issued: December 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 15, 2012 appellant, through her attorney, filed a timely appeal from a May 16,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that she
did not establish a recurrence of disability. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether OWCP properly issued a decision finding that appellant did not
establish a recurrence of disability on June 15, 1998 causally related to her accepted employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 12, 1994 appellant, then a 32-year-old mail handler, filed a traumatic injury
claim alleging that on May 11, 1994 she sustained an injury to the right side of her head when
she was struck by a metal bar. OWCP accepted the claim for a head contusion. Appellant
worked limited duty beginning July 1994.
On June 15, 1998 appellant filed a notice of recurrence of disability beginning that date
causally related to her May 10, 1994 employment injury. She stopped work on June 12, 1998
and did not return.
In a report dated June 16, 1998, Dr. Frantz Jasmin, a Board-certified internist, found that
appellant was disabled from employment beginning June 12, 1998 pending an evaluation by an
orthopedist. On July 21, 1998 Dr. Richard Memoli, an orthopedic surgeon, diagnosed head
trauma, a sprain of the cervical spine with radiculopathy and noted the need to rule out a
herniated nucleus pulposus. He found that appellant was disabled from work due to her
employment injury.2
On March 26, 1999 appellant resigned from the employing establishment. She cited as
the reason for her resignation her daughter’s health condition.
By letter dated May 3, 2000, OWCP referred appellant to Dr. Harvey A. Levine, a
Board-certified orthopedic surgeon, for a second opinion examination. In a report dated May 19,
2000, Dr. Levine diagnosed status postconcussion, resolved cervical sprain and resolved
lumbosacral sprain, all of which he attributed to the work injury. He found that appellant had no
disability.
On July 23, 2001 OWCP advised appellant that it had accepted her “recurrence June 12,
1998” and informed her that she could submit medical bills for payment. It requested that she
submit a Form CA-7 if she “lost time from work due to the recurrence….”
By letter dated January 3, 2003, OWCP informed appellant’s attorney that it had accepted
her recurrence of June 12, 1998 and was “currently processing a supplemental payment” from
August 4, 1998 to December 28, 2002 subject to “certification by several individuals.” It also
advised counsel that it was scheduling an impartial medical examination to resolve a conflict
between Dr. Memoli and Dr. Levine.3
By letter dated April 23, 2003, OWCP advised appellant’s congressional representative
that it had accepted that appellant sustained a recurrence of disability on June 12, 1998. It
indicated, however, that it was scheduling a referral examination prior to “processing
compensation payments.”

2

Dr. Memoli continued to submit progress reports finding appellant disabled from work.

3

In an internal e-mail dated January 8, 2003, OWCP determined that it was unable to refer appellant for an
impartial medical examination without obtaining current medical evidence regarding her condition.

2

On July 21, 2003 OWCP referred appellant back to Dr. Levine for a second opinion
examination. By letter dated July 21, 2003, appellant, through counsel, questioned why it was
scheduling another medical examination given that it had accepted a recurrence of disability,
arguing that she was entitled to benefits until OWCP terminated her compensation.
In a report dated August 14, 2003, Dr. Levine diagnosed status post cerebral concussion,
resolved cervical sprain and resolved lumbosacral sprain due to appellant’s work injury. He
concluded that she could perform her usual employment.4
On January 6, 2012 appellant requested compensation from June 12, 1998 to
December 21, 2011. She noted that she had worked outside of the employing establishment
during that period.
By letter dated January 16, 2012, counsel argued that OWCP had accepted that she
sustained a recurrence of disability on June 12, 1998 but developed the medical evidence rather
than paying her any compensation.
In a letter dated February 14, 2012, OWCP noted that appellant resigned from the
employing establishment on March 26, 1999 for personal reasons. It requested that she explain
why she was requesting compensation given that the record contained no medical report for
almost nine years and that she had earnings from private employment.
In a February 23, 2012 response, counsel again noted that OWCP had accepted a
recurrence of disability and that appellant’s employment “represents at most a minor statutory
adjustment for temporary wage[-]earning capacity.”
By decision dated May 16, 2012, OWCP found that appellant had not established a
recurrence of disability due to her accepted work injury.
On appeal, counsel argues that OWCP accepted a recurrence of disability on June 12,
1998 and thus should have paid compensation until it found that she had no further disability.
He further maintained that a conflict existed between her attending physician and Dr. Levine.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or application.5 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.6 The power to annul an award, however, is not an arbitrary one and an

4

In a report dated January 2, 2003, Dr. Memoli discussed appellant’s complaints of radiating neck pain and found
that she should remain off work. In a September 16, 2003 progress report, he discussed her physical complaints and
found that she was unable to work.
5

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

6

John W. Graves, 52 ECAB 160 (2000).

3

award for compensation can only be set aside in the manner provided by the compensation
statute.7
It is well established that, once OWCP accepts a claim, it has the burden of justifying the
termination or modification of compensation benefits.8 This holds true where OWCP later
decides that it erroneously accepted a claim.9 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
employment. It is required to provide a clear explanation of the rationale for rescission.10
ANALYSIS
OWCP accepted that appellant sustained a head contusion due to a May 11, 1994
employment injury. Appellant returned to limited-duty employment on July 1994. On June 15,
1998 she filed a notice of recurrence of disability beginning that date due to her May 1994 work
injury. Appellant resigned from work on March 26, 1999 for personal reasons. On July 23,
2001 OWCP accepted that she sustained a recurrence of disability on June 12, 1998. It
instructed appellant to file a claim for time lost from work. In a decision dated May 16, 2012,
OWCP found that she did not establish a recurrence of disability.
The Board finds that OWCP did not properly adjudicate the issue presented. As OWCP
accepted that appellant sustained a recurrence of disability, it has the burden of proof to rescind
acceptance.11 The issue is thus whether it met its burden of proof to rescind acceptance of its
finding that she sustained a recurrence of disability on June 12, 1998.
The medical evidence is insufficient to show that appellant did not establish a June 12,
1998 recurrence of disability. In a report dated June 16, 1998, Dr. Jamin advised that appellant
was totally disabled as of June 12, 1998. On July 21, 1998 Dr. Memoli diagnosed head trauma,
cervical sprain with radiculopathy and a possible herniated disc. He asserted that she was
disabled due to her May 11, 1994 work injury. OWCP referred appellant for a second opinion
examination with Dr. Levine. On May 19, 2000 Dr. Levine found that she was status
postconcussion and diagnosed resolved cervical and lumbosacral sprain. He determined that
appellant had no further employment-related disability. In a report dated August 14, 2003,
Dr. Levine again diagnosed status post cerebral concussion and resolved cervical and
lumbosacral strain and found that she was not disabled from employment. In his reports,
however, he did not address the pertinent issue of whether appellant sustained a recurrence of
disability on June 15, 1998 causally related to her May 11, 1994 work injury. Consequently,
Dr. Levine’s opinion is of diminished probative value.
7

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

8

See Linda L. Newbrough, 52 ECAB 323 (2001).

9

Id.

10

See Andrew Wolfgang-Masters, 56 ECAB 411 (2006); see also 20 C.F.R. § 10.610.

11

See supra note 8.

4

Additionally, as noted, OWCP was attempting to rescind acceptance of its finding that
appellant established an employment-related recurrence of disability. OWCP, however, must
inform a claimant correctly and accurately of the grounds on which a rejection rests so as to
afford the claimant an opportunity to meet, if possible, any defect appearing therein.12 As it
failed to issue an appropriate decision rescinding its finding that appellant sustained a recurrence
of disability beginning June 15, 1998, OWCP did not meet its burden of proof.
CONCLUSION
The Board finds that OWCP improperly issued a decision finding that appellant did not
establish a recurrence of disability on June 15, 1998 causally related to her accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 11, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

See Y.S., Docket No. 10-2325 (issued August 23, 2011); John M. Pittman, 7 ECAB 514 (1955).

5