United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN
STATION, Trenton, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0094
Issued: September 1, 2017

Case Submitted on the Record

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

JURISDICTION
On October 24, 2016 appellant, through counsel, filed a timely appeal from a May 23,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation, effective November 9, 2015.

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 services 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.

On appeal counsel argues that the opinion of OWCP’s referral physician was insufficient
to meet OWCP’s burden of proof to terminate wage-loss benefits.
FACTUAL HISTORY
On August 16, 2013 appellant, then a 49-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 10, 2013 he developed post-traumatic stress due to
hearing several gunshots near where he was delivering mail. He also alleged that the back
window of his postal vehicle near where he had been standing was shattered by a gunshot.
Appellant stopped work on August 12, 2013 and has not returned. OWCP accepted the claim for
post-traumatic stress disorder (PTSD) and panic disorder without agoraphobia. Appellant
received compensation benefits on the supplemental rolls as of September 30, 2013 and on the
periodic rolls as of August 24, 2014.
On August 1, 2014 appellant was referred for a second opinion evaluation with
Dr. Richard W. Cohen, a Board-certified psychiatrist, for an evaluation to clarify treatment and
appellant’s work capacity.
In an August 14, 2014 report, Dr. Cohen, based upon the statement of accepted facts and
appellant’s examination, diagnosed major depressive disorder, PTSD, and panic disorder. He
noted that these conditions were improving at the time of his examination. Dr. Cohen related
that appellant continued to have mild impairment with daily living activities, remained
dependent on his wife, continued to have moderately impaired social functioning, and continued
to have preoccupation with the events of August 10, 2013. He also reported that appellant had a
long episode of decompensation, which he noted was improving. Dr. Cohen opined that
appellant had not yet reached maximum medical improvement, but that in three months he could
return to the date-of-injury job at the employing establishment with no restrictions or limitations.
He concluded that, while appellant continued to have residuals from his accepted employment
injury in the form of panic attacks, flash backs, and fears these residuals were becoming less
intense.
On a September 14, 2014 OWCP-5a form, Dr. Cohen indicated that appellant was
capable of working eight hours, but not as a letter carrier. He further noted that appellant could
return to his job as a letter carrier in three months.3
On January 23, 2015 OWCP referred appellant back to Dr. Cohen for a follow-up
evaluation.
In a February 6, 2015 report, Dr. Cohen diagnosed greatly improved PTSD and panic
disorder without agoraphobia, and moderate residual distress from the accepted August 10, 2013
employment injury. He concluded that appellant had no continuing decompensation from the
accepted August 10, 2013 employment injury. Under current status, Dr. Cohen reported that
appellant was not currently having nightmares about the event, he continued to have less intense
flashbacks twice a month, and appellant was less fearful and less dependent on his wife when
going outside. He also reported that appellant related that his panic attacks were less intense and
3

OWCP received this form on May 26, 2015.

2

not as frequent. In support of this conclusion, Dr. Cohen observed no marked or moderate
functional limitations with appellant’s concentration, social functioning, or daily living activities.
A mental status examination revealed goal-oriented answers, a blunted affect, suppressed and
anxious mood, fair judgement and proverbs/abstract insight, no suicidal thoughts, and no thought
disorder. Dr. Cohen noted that appellant had a mild impairment in social functioning, mild
impairment in his daily living activities, and had mild issues with persistence, pace, and
concentration. Based on the mental status examination, and medical history, he concluded that
appellant could return to work at the employing establishment with no restrictions. With respect
to continued treatment, Dr. Cohen recommended that appellant’s medication management be
terminated within three months and that appellant be weaned off his current medication.
In response to OWCP’s specific questions, Dr. Cohen opined that appellant’s accepted
PTSD and anxiety disorder with agoraphobia were both greatly improved, that appellant had
reached maximum medical improvement, and that appellant could return to work. Dr. Cohen
opined that there were only psychiatric limitations, which had improved to the point where
appellant could return to work without limitations or restrictions. In an attached work capacity
evaluation form for psychological/psychiatric conditions (Form OWCP-5a), Dr. Cohen noted
that appellant was capable of working eight hours and was compentent to perform his usual work
duties.
Following receipt of Dr. Cohen’s report, OWCP received a November 21, 2014 OWCP5a form and November 25, 2014 attending physician’s report (Form CA-20) from Dr. Prakash
Amin, a treating Board-certified psychiatrist. In the November 21, 2014 OWCP-5c form,
Dr. Amin diagnosed PTSD, depressive disorder, and panic disorder, and found appellant totally
disabled from any type of work. Dr. Amin noted on the form that appellant was very fearful,
deathly afraid of any return to work at the employing establishment, and anxious.
Dr. Amin, in the November 25, 2014 Form CA-20, diagnosed PTSD, panic disorder, and
depressive disorder. He noted that appellant was last seen on November 21, 2014 and that he
had been seen every two to three weeks since the injury. Dr. Amin opined that appellant
remained disabled from returning to work due to his continuing fear of being shot, and anxiety
regarding a return to work. He reported that appellant had been depressed, afraid of returning to
work, and fearful of going near a post office since the accepted August 10, 2013 employment
injury.
On September 23, 2015 OWCP proposed to terminate appellant’s compensation benefits
based upon Dr. Cohen’s February 6, 2015 report. It accorded less weight to Dr. Amin’s
November 25, 2014 report as there had not been a recent psychological examination and
Dr. Amin had not provided any rationale for his opinion.
In a September 28, 2015 OWCP-5a form, Dr. Amin opined that appellant was unable to
return to work. He explained that appellant was very anxious, depressed and sad. Appellant had
continuing nightmares and flashbacks of being shot. In support of this opinion, Dr. Amin further
noted that appellant was very fearful and deathly afraid of any return to work at the employing
establishment. He also reported appellant was scared to go to his mailbox to pick up his mail
and continued to be scared of being shot at if he returned to work at the employing
establishment.

3

By decision dated November 9, 2015, OWCP finalized the termination of appellant’s
wage-loss compensation, effective that same date. It found the weight of the medical evidence
rested with the opinion of Dr. Cohen, an OWCP referral physician, as it was based on a recent
mental examination and was well rationalized. OWCP noted that appellant’s medical benefits
were not terminated and would remain open.
In a November 16, 2015 letter, counsel requested an oral hearing before an OWCP
hearing representative, which was held on March 3, 2016.
On December 3, 2015 OWCP received an October 28, 2015 report from Dr. Amin.
Diagnoses included PTSD, panic disorder without agoraphobia, and single episode of major
depressive disorder. Dr. Amin provided a history of the accepted August 10, 2013 employment
injury and development of anxiousness, fear, and helplessness. He reported that appellant
continued to have depressive episodes which lasted two to three hours, two to three times per
week. Dr. Amin noted that appellant’s new medication resulted in improved mood. However,
he noted that appellant continued to have PTSD symptoms without any improvement.
Appellant’s symptoms included avoidance of social activities, requiring his wife to be with him
when he had to be with people. He also continued to feel discomfort when going outside.
Dr. Amin concluded that he disagreed with Dr. Cohen regarding appellant’s ability to return to
his date-of-injury job. He noted that Dr. Cohen did not mention any of appellant’s PTSD
symptoms including his flashbacks, nightmares, fear, extreme anxiety, and hypervigilance.
By decision dated May 23, 2016, OWCP’s hearing representative affirmed the
termination of appellant’s wage-loss compensation, effective November 9, 2015. However, he
found there was an unresolved conflict in the medical opinion evidence between Dr. Cohen and
Dr. Amin on the issue of whether appellant continued to have residuals or disability due to his
accepted conditions on and after November 9, 2015.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to his federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
ANALYSIS
OWCP accepted that appellant sustained PTSD and panic disorder without agoraphobia
as a result of the accepted August 10, 2013 employment injury. Appellant stopped work on
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

4

August 12, 2013 and was placed on the periodic rolls for temporary total disability by letter
dated August 21, 2014.
OWCP terminated appellant’s wage-loss compensation, effective November 9, 2015,
finding that he no longer had disability due to his accepted conditions. It based its termination
decision on the February 6, 2015 report of Dr. Cohen, OWCP’s referral physician.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation, effective November 9, 2015.
Dr. Cohen initially reported on August 14, 2014 that appellant’s period of
decompensation was improving, and that while appellant continued to have residuals of his
accepted injury in the form of panic attacks, flash backs, and fears, these residuals were
becoming less intense. He opined that appellant had not reached maximum medical
improvement, but that appellant could return to work in three months. OWCP referred appellant
for a follow up evaluation with Dr. Cohen on January 23, 2015.
In his February 6, 2015 report, Dr. Cohen diagnosed greatly improved PTSD and panic
disorder without agoraphobia and moderate distress. He concluded that appellant was capable of
returning to full-time work without restrictions due to the lack of continuing decompensation
from the accepted August 10, 2013 employment injury. In support of this conclusion, Dr. Cohen
reported that appellant’s nightmares had ceased, he had less intense flashbacks, and his panic
attacks were less frequent and intense. He also explained that appellant was less fearful of going
outside, and he was less dependent on his wife. Dr. Cohen concluded that appellant’s accepted
PTSD and anxiety disorder with agoraphobia were both greatly improved, that appellant had
reached maximum medical improvement, and he could return to work.
The Board finds that Dr. Cohen’s reports represented the weight of the medical evidence
at the time OWCP terminated benefits and that OWCP properly relied on his opinion in
terminating appellant’s wage-loss compensation.
Dr. Cohen had full knowledge of the relevant facts and the course of appellant’s
condition. His opinions were based on a proper factual and medical history and on the statement
of accepted facts. Dr. Cohen’s reports contained a detailed summary of the history of the claim.7
Additionally, he addressed the medical records, examined appellant, and reached a reasoned
conclusion regarding appellant’s conditions.8 At the time benefits were terminated, Dr. Cohen
had explained that appellant’s accepted condition had improved and that he was capable of
returning to work. His February 6, 2015 report is both probative and reliable evidence regarding
appellant’s current psychiatric condition.9 Accordingly, the Board finds that Dr. Cohen’s
7

See R.G., Docket No. 16-0271 (issued May 18, 2017).

8

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts which determine the weight to be
given to each individual report).
9

Supra note 7.

5

opinion constitutes the weight of the medical evidence and is sufficient to justify OWCP’s
termination of wage-loss compensation for the accepted conditions.
Dr. Amin, in OWCP-5a forms dated November 21, 2014 and September 28, 2015 and a
November 25, 2014 CA-20 form diagnosed PTSD, depressive disorder, and panic disorder,
which he opined were totally disabling. He reported that appellant was anxious, very fearful,
deathly afraid of any return to work at the employing establishment. On November 25, 2014
Dr. Amin reported that he had been seen every two to three weeks since the injury and remained
disabled due to PTSD, panic disorder and depressive disorder. On October 28, 2015 Dr. Amin
advised that appellant continued to be disabled due to his accepted psychological conditions of
depression and anxiety. However, Dr. Amin did not provide any objective findings or medical
rationale explaining why appellant continued to be disabled from work due to the accepted
conditions. Thus, his reports are of diminished probative value and insufficient to overcome the
weight of Dr. Cohen’s report or to create a medical conflict.10 While Dr. Amin provided a more
detailed report following the termination, the Board notes that the issue of continuing disability
was remanded by the hearing representative to resolve the new conflict in medical evidence.
That issue is not ripe for a decision by the Board.11
Counsel argues on appeal that Dr. Cohen’s opinion is insufficient to support OWCP’s
burden of proof to terminate wage-loss compensation. As discussed above, the Board finds that
Dr. Cohen’s report was well rationalized and represented the weight of the medical evidence at
the time that OWCP terminated compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective November 9, 2015.

10

See S.S., Docket No. 15-1160 (issued January 11, 2016). The weight of medical evidence is determined by its
reliability, its probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion. James Mack, 43 ECAB 321 (1991).
11

See 20 C.F.R. § 501.2(c)(2) (there will be no appeal with respect to any interlocutory matter decided (or not
decided) by OWCP during the pendency of a case). F.T., Docket No. 15-1109 (issued June 17, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2016 is affirmed.
Issued: September 1, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, MISSOURI CITY
)
CARRIER ANNEX, Missouri City, TX, Employer )
__________________________________________ )
F.N., Appellant

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

Docket No. 06-2136
Issued: February 13, 2007

Case Submitted on the Record

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

JURISDICTION
On September 22, 2006 appellant filed a timely appeal from a June 19, 2006 merit
decision of the Office of Workers’ Compensation Programs, which found that she received an
overpayment in the amount of $906.28 for which she was at fault. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $906.28; and (2) whether the Office properly determined that
appellant was at fault in the creation of the overpayment and, therefore, ineligible for waiver.
FACTUAL HISTORY
On October 22, 2005 appellant, then a 36-year-old letter carrier, filed a traumatic injury
claim alleging that on that date she experienced pain in her right arm and shoulder while
delivering mail to a mail box. She stopped work on the date of injury.

By letter dated January 26, 2006, the Office accepted appellant’s claim for right shoulder
sprain/strain. The Office also accepted appellant’s claim for right rotator cuff tear. The Office
advised appellant that she was expected to return to work including light-duty or part-time work
if available, as soon as she was able. Once appellant returned to work or obtained new
employment, she was to notify the Office immediately. The Office noted that full compensation
benefits were only payable while appellant could not perform the duties of her regular job
because of her accepted employment-related injury. Appellant was told to immediately return
any compensation checks which included payment for a period she had worked, to prevent an
overpayment of compensation.
By letter dated February 28, 2006, the Office notified appellant that her first payment of
compensation would cover the period December 7, 2005 through February 18, 2006 and that she
would receive a net amount of $2,589.66. Beginning February 19, 2006, appellant would receive
a gross amount of $6,844.10. The Office advised appellant that compensation benefits for total
disability were only payable while she could not perform work because of her injury. Appellant
was to inform the Office if she returned to work and return any payment to the Office in order to
minimize the possibility of an overpayment. Each payment would show the period for which the
payment was made. If she worked for any portion of a compensable period, she must return the
payment to the Office, even if she had already advised the Office that she was working.
On March 13, 2006 Dr. Stephen D. Thompson, an attending Board-certified orthopedic
surgeon, released appellant to return to full-time limited-duty work with restrictions effective
March 21, 2006. She returned to work on April 6, 2006.1
By letter dated May 1, 2006, the employing establishment advised appellant that since
she had returned to work, the Office had been notified of this action. It requested that her
compensation payments be terminated and noted any compensation payments to which she was
not entitled could result in an overpayment.
In a May 19, 2006 overpayment worksheet, the Office determined that appellant received
compensation in the amount of $911.42 during the period April 6 through 15, 2006. It found that
a basic life insurance premium in the amount of $5.14 was not deducted from April 6
through 15, 2006. The Office subtracted the life insurance premium and found that appellant had
received a total overpayment of $906.28.
On May 19, 2006 the Office issued a preliminary determination that an overpayment in
the amount of $906.28 had occurred because appellant continued to receive compensation for
temporary total disability through April 15, 2006 after returning to full-time limited-duty work
on April 6, 2006. The Office found that she was at fault in the creation of the overpayment as
she knew or should have known that the payment she received was incorrect after she returned to
full-time modified work. Appellant was advised that she could request a telephone conference, a
final decision based on the written evidence only or a hearing within 30 days if she disagreed
that the overpayment occurred, with the amount of the overpayment or if she believed that
recovery of the overpayment should be waived. The Office requested that she complete an
1

On May 8, 2006 Dr. Thompson released appellant to return to her regular work duties with no restrictions.

2

accompanying overpayment recovery questionnaire (Form OWCP-20) and submit financial
documents in support thereof within 30 days. Appellant did not respond within the allotted time
period.
By decision dated June 19, 2006, the Office finalized the preliminary overpayment
determination. It found that appellant was not without fault in the creation of the overpayment in
the amount of $906.28 that occurred from April 6 through 15, 2006. She was aware that, after
she returned to work, she was no longer entitled to receive compensation for temporary total
disability. The Office directed appellant to repay the overpayment as she was no longer
receiving compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Office regulations, at 20 C.F.R. § 10.500(a), provide as follows:
“Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him
or her from earning the wages earned before the work-related injury.”
ANALYSIS -- ISSUE 1
The record establishes that appellant returned to full-time limited-duty work on
April 6, 2006. She received her regular salary with no wage loss. However, appellant received
compensation for temporary total disability from April 6 through 15, 2006. The Office issued a
check which covered the period in question in the gross amount of $911.42. In calculating the
overpayment, the Office deducted from the April 6 through 15, 2006 compensation check, a
payment for basic life insurance in the amount of $5.14. This resulted in an overpayment of
$906.28. As appellant had returned to work from April 6 through 15, 2006 and had no
entitlement to compensation for that period, the Office properly calculated the $906.28
overpayment. Appellant has not submitted any evidence showing that she did not receive an
overpayment of compensation or contesting the existence and amount of the overpayment. The
Office properly determined that she received an overpayment of compensation in the amount of
$906.28.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act2 provides that an
overpayment of compensation shall be recovered by the Office unless “incorrect payment has
been made to an individual who is without fault and when adjustment or recovery would defeat
the purpose of [the Act] or would be against equity and good conscience.”3 Thus, the Office

2

5 U.S.C. § 8129(b).

3

Michael H. Wacks, 45 ECAB 791, 795 (1994).

3

may not waive the overpayment of compensation unless appellant was without fault.4
Adjustment or recovery must, therefore, be made when an incorrect payment has been made to
an individual who is with fault.5
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which
he or she knew or should have known was incorrect.”6
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”7
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. In order for the Office to establish that she was at fault in creating the
overpayment of compensation, the Office must establish that, at the time appellant received the
compensation checks in question, she knew or should have known that the payment was
incorrect.8
Based on the circumstances of this case, the Board finds that appellant is not with fault in
creating the overpayment. The evidence of record is insufficient to establish that appellant knew
or should have been expected to know that she accepted an incorrect payment. As noted, the
overpayment of compensation occurred during the period April 6 through 15, 2006 when
appellant accepted a compensation check for wage loss after she returned to work on
April 6, 2006. Although the Office’s January 26 and February 28, 2006 letters indicated that
appellant should return Office payments intended for periods she worked after returning to the
employing establishment, the generalized statements contained in the letters do not show,
without additional evidence, that appellant reasonably should have known that she received
4

Norman F. Bligh, 41 ECAB 230 (1989).

5

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

6

20 C.F.R. § 10.433(a).

7

Id. at § 10.433(b).

8

See Diana L. Booth, supra note 5.

4

improper payments. The record does not contain a photocopy of the compensation check in
question. Thus, there is no evidence to show whether the period of wage loss from April 6
through 15, 2006 was imprinted on the check. This would have put appellant on notice that the
compensation check was payment for a period of wage loss to which she was not entitled as well
as establish fault. Further, there is no evidence of record indicating that any information or letter
accompanied the check with the above information. For these reasons, the Board finds that
appellant was not at fault in creation of the overpayment.
Since the Board has determined that appellant was without fault in the creation of the
overpayment, the Office may only recover the overpayment in accordance with section 8129(b)
of the Act9 if a determination has been made that recovery of the overpayment would neither
defeat the purpose of the Act nor be against equity and good conscience.10 The case will be
remanded to the Office for further development with respect to whether appellant is entitled to
waiver of the $906.28 overpayment. After such further development as the Office may find
necessary, it should issue an appropriate decision on the issue of whether the overpayment
should be waived.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $906.28 during the period April 6 through 15, 2006. The Board, however, finds that she was
not at fault in the creation of the overpayment

9

5 U.S.C. § 8129(b).

10

The guidelines for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.434, 10.436, 10.437.

5

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the fact and amount of the
overpayment. The decision is reversed with respect to the fault determination and remanded to
the Office for further proceedings consistent with this decision of the Board.
Issued: February 13, 2007
Washington, DC

David S. Gerson, Judge
Employees Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elk Grove Village, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0900
Issued: October 28, 2019

Case Submitted on the Record

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

JURISDICTION
On March 26, 2019 appellant filed a timely appeal from a December 18, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period February 14 to March 23, 2018 causally related to her accepted employment injuries.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On April 17, 2013 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging a neck injury due to working an excessive number hours. She
indicated that she first became aware of her claimed injury on July 31, 2012 and first realized its
relation to her federal employment on March 15, 2013.
Appellant stopped work on
3
March 20, 2013.
OWCP initially accepted appellant’s occupational disease claim for cervicalgia and
subsequently expanded the accepted conditions to include aggravation of spinal stenosis in the
cervical region and cervical radiculopathy of the left arm.
In an August 29, 2015 duty status report (Form CA-17), Dr. Robert J. Strugala, a Boardcertified orthopedic surgeon, indicated that appellant could work for five hours per day with
restrictions including lifting, pushing, and pulling no more than 10 pounds.
On October 2, 2015 appellant returned to modified-duty work for five hours per day and
OWCP paid her wage-loss compensation for three hours per day due to the partial disability
causally related to her accepted occupational employment injuries.
In an April 1, 2016 Form CA-17, Dr. Strugala indicated that appellant could continue
working for five hours per day with restrictions including lifting, pushing, and pulling no more
than 10 pounds.
On August 9, 2016 appellant filed a traumatic injury claim (Form CA-1) alleging that she
sustained a neck injury on that date while exiting through the rear door of her postal vehicle and
closing the rear door in the performance of duty.4 She stopped work on August 10, 2016 and
returned to work on August 15, 2016 in a modified-duty position for five hours per day. OWCP
initially accepted that appellant sustained a neck strain on August 9, 2016 and it later expanded
the accepted conditions in the claim to include lumbar sprain and strain of muscle, fascia, and
tendon at the neck level. It administratively combined the files for OWCP File Nos. xxxxxx719
and xxxxxx843 and designated OWCP File No. xxxxxx719 as the master file.
After a period of total disability, appellant returned on October 10, 2017 working as a
modified city carrier for five hours per day. The position required driving for up to two hours per
day, delivering business mail for up to two hours per day, and pushing/pulling up to 10 pounds.
OWCP continued to pay appellant wage-loss compensation for three hours per day.

3

OWCP assigned this claim OWCP File No. xxxxxx843. Appellant previously filed a claim under a separate file
number, OWCP File No. xxxxxx223, which OWCP accepted for closed lumbar vertebrae fracture (without spinal cord
injury) and cervical sprain due to a June 27, 2011 motor vehicle accident. She stopped work after the accident and
returned to her regular duty on a full-time basis on January 27, 2012.
4

OWCP assigned the claim OWCP File No. xxxxxx719.

2

Appellant completely stopped work on February 14, 2018. In connection with her accepted
occupational disease claim, she filed a claim for compensation (Forms CA-7) alleging total
disability for the period February 14 to March 23, 2018.5
In a February 23, 2018 development letter, OWCP requested that appellant submit medical
evidence in support of her claim for wage-loss compensation for the period from February 14 to
March 23, 2018.
Appellant submitted a February 1, 2018 report from Dr. Strugala who indicated that, prior
to August 9, 2016, appellant had been under work restrictions for employment-related cervical
injuries which included aggravation of cervical spinal stenosis. Dr. Strugala opined that appellant
had recovered from the effects of her August 9, 2016 employment injury, but found that, due to
her earlier occupational injuries, she still required the same restrictions that she worked under prior
to August 9, 2016. He indicated that appellant’s cervical condition was in a stable state and noted
that no specific further intervention was planned. In a February 1, 2018 Form CA-17, Dr. Strugala
advised that appellant could work for five hours per day with restrictions including lifting, pushing,
and pulling no more than 10 pounds.
In a February 16, 2018, 2018 Form CA-17, Dr. Strugala advised that appellant had clinical
findings of neck/arm pain and opined that she could not perform any work. 6 In a separate
February 16, 2018 form report, he diagnosed spinal stenosis of the cervical region and indicated
that appellant could not return to work.7
In a March 19, 2018 development letter, OWCP requested that appellant submit additional
medical evidence in support of her claim for wage-loss compensation for the period February 14
to March 23, 2018.
Appellant submitted March 23 and April 20, 2018 Forms CA-17 in which Dr. Strugala
indicated that appellant could work for five hours per day with restrictions including lifting,
pushing, and pulling no more than 10 pounds. 8
By decision dated May 22, 2018, OWCP denied appellant’s claim for total disability for
the period February 14 to March 23, 2018.9 It determined that she had not submitted medical

5
The case record reflects that, after March 23, 2018, appellant returned to her modified-duty job for five hours per
day.
6

Dr. Strugala provided the notation, “Off work permanent, further workup.”

7

Appellant also submitted a February 23, 2018 examination report which was electronically signed by a
transcriptionist with the initials, L.A.M.
8

Appellant also submitted March 23, 27, and April 3, 2018 examination reports which were electronically signed
by a transcriptionist with the initials, L.A.M., as well as an April 27, 2018 examination report which was electronically
signed by a transcriptionist with the initials, D.M.G.
9
OWCP indicated that the May 22, 2018 decision was an amended version of a May 10, 2018 decision in the case
record.

3

evidence sufficient to establish total disability for the period February 14 to March 23, 2018
causally related to her accepted employment injuries.
On June 5, 2018 appellant requested a hearing with a representative of OWCP’s Branch of
Hearings and Review.
Appellant subsequently submitted the findings of March 20, 2018 electromyogram and
nerve conduction velocity (EMG/NCV) testing of the upper extremities which contained an
impression of mild right median nerve mononeuropathy suggestive of carpal tunnel syndrome.
There was no evidence of left upper extremity peripheral neuropathy or left-sided cervical spine
radiculopathy.10
During the hearing held on November 5, 2018, appellant testified that she had symptoms
in her neck and both upper extremities. After the hearing, appellant submitted a November 9, 2018
Form CA-17 in which Dr. Strugala indicated that she could work for five hours per day with
restrictions including lifting, pushing, and pulling no more than 10 pounds.
By decision dated December 18, 2018, OWCP’s hearing representative affirmed the
May 22, 2018 decision. She noted that appellant did not submit medical evidence sufficient to
establish total disability for the period February 14 to March 23, 2018. The hearing representative
indicated that medical evidence of record suggested that appellant had developed right carpal
tunnel syndrome, but she noted that appellant’s claim had not been accepted for employmentrelated carpal tunnel syndrome and advised her that she might wish to file a claim for such a
condition.11
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury. 12 In general the term disability under FECA means incapacity because
of injury in employment to earn the wages which the employee was receiving at the time of such
injury.13 This meaning, for brevity, is expressed as disability for work.14

10

Appellant also submitted May 31, June 6, and November 13, 2018 examination reports which were electronically
signed by a transcriptionist with the initials, D.M.G.
11
OWCP’s hearing representative indicated that appellant would still be entitled to receive wage-loss compensation
for three hours per day due to the partial disability causally related to her accepted employment injuries.
12

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

13

See 20 C.F.R. § 10.5(f).

14
See S.W., supra note 12. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L. Kaaumoana,
54 ECAB 150 (2002).

4

The medical evidence required to establish a causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. 15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period February 14 to March 23, 2018 causally related to her accepted employment injuries.
Appellant submitted a February 16, 2018, 2018 Form CA-17 in which Dr. Strugala advised
that appellant had clinical findings of neck/arm pain and opined that she could not perform any
work. In a separate February 16, 2018 form report, Dr. Strugala diagnosed cervical spinal stenosis
and indicated that appellant could not return to work. Although he suggested that she had total
disability due to an employment-related condition,16 he had not provided an explanation for this
opinion. Dr. Strugala failed to explain how findings on examination and diagnostic testing
supported his conclusion that appellant could not perform the part-time modified position she held
prior to stopping work on February 14, 2018.17 The Board has held that a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale. 18 Therefore, these reports are insufficient to
establish appellant’s claim.
The Board notes that the case record contains medical evidence which suggests that
appellant developed right carpal tunnel syndrome by March 2018. However, this condition has
not been accepted as employment related and the case record does not otherwise contain a
rationalized medical report sufficient to establish the existence of disabling employment-related
carpal tunnel syndrome. 19
Appellant also submitted several examination reports, dated between February 23 and
November 13, 2018, but these reports do not constitute medical evidence because they were not
signed by a physician within the meaning of FECA. The Board has held that a medical report may
not be considered as probative medical evidence if there is no indication that the person completing
15

E.J., Docket No. 09-1481 (issued February 19, 2010).

16

The Board notes that OWCP had accepted that appellant had sustained aggravation of cervical spinal stenosis.

17

Appellant performed modified work for five hours per day and she received wage-loss compensation for the
remaining three hours of the workday. She submitted March 23, April 20, and November 9, 2018 Forms CA-17 in
which Dr. Strugala indicated that she could work for five hours per day with restrictions including lifting, pushing,
and pulling no more than 10 pounds. These reports do not show that appellant was totally disabled for the claimed
period.
18

Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).

19
See F.S., Docket No. 15-1052 (issued July 17, 2015) (finding that the medical evidence required to establish
causal relationship is rationalized medical opinion evidence).

5

the report qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper
identification do not constitute probative medical evidence. 20
As the medical evidence of record does not contain a rationalized medical opinion
establishing causal relationship between appellant’s accepted employment injuries and the claimed
period of total disability from February 14 to March 23, 2018, the Board finds that appellant has not
met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period February 14 to March 23, 2018 causally related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2019
Washington, DC

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

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

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

20

C.B., Docket No. 09-2027 (issued May 12, 2010).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1261
Issued: November 4, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 30, 2013 appellant filed a timely appeal from a February 21, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied her recurrence claim. The
Board docketed the appeal as No. 13-1261.1
The Board has duly reviewed the record and finds that the case is not in posture for
decision. By decision dated April 27, 2012, OWCP reduced appellant’s compensation based on
her actual earnings as a clerk in a modified, sedentary position. On August 6, 2012 she filed a

1

On April 27, 2005 appellant, a nurse, sustained employment-related lumbar and neck strains while lifting a
patient. She received compensation for temporary total disability on the periodic rolls, and on July 20, 2006
received a voluntary separation incentive payment in the amount of $25,000.00, with a net payment of $16,760.01.
The case has previously been before the Board. In decisions dated December 11, 2007 and May 9, 2008, the Board
found that appellant received an overpayment of compensation but that the case was not in posture for decision
regarding the amount of the overpayment. L.J., 59 ECAB 264 (2007); Docket No. 08-1958 (issued May 9, 2008).
In an October 1, 2010 decision, the Board found that appellant received an overpayment of compensation in the
amount of $20,312.64 and that OWCP properly denied waiver and required repayment of the overpayment by
deducting $250.00 each period from appellant’s continuing compensation payments. Docket No. 10-510 (issued
October 1, 2010). Appellant returned to work on November 20, 2011 but stopped work on February 28, 2012.

recurrence claim.2 By decision dated February 21, 2013, OWCP denied appellant’s recurrence
claim on the grounds that the medical evidence was insufficient to establish that her accepted
condition had worsened.
As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on
April 27, 2012. It is well established that a claimant may establish that a modification of a wageearning capacity is warranted if there is a material change in the nature and extent of an injuryrelated condition, or a showing that the original determination was, in fact, erroneous.3
Appellant’s submission of a recurrence claim on August 6, 2012 for a recurrence of disability on
February 28, 2012 should thus be regarded as a request for modification of the wage-earning
capacity determination. The Board has held that, when a wage-earning capacity determination
has been issued and appellant submits evidence with respect to disability for work, OWCP must
evaluate the evidence to determine if modification of wage-earning capacity is warranted.4
Rather, in this case, in its February 21, 2013 decision, OWCP adjudicated the claim as a
recurrence.
The Board finds that OWCP should have determined whether appellant had established
that the wage-earning capacity determination should be modified.5 The Board will therefore
remand the case to OWCP for proper adjudication, to be followed by an appropriate merit
decision to preserve appellant’s appeal rights.

2

Id. The record also indicates that appellant filed a claim for carpal tunnel syndrome, adjudicated separately by
OWCP.
3

P.C., 58 ECAB 405 (2007).

4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

5

F.B., Docket No. 09-99 (issued July 21, 2010).
December 21, 2012).

2

See also M.D., Docket No. 12-1317 (issued

IT IS HEREBY ORDERED THAT the February 21, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: November 4, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF THE ARMY, US ARMY
EUROPE 7th ARMY, APO, AE, Employer
__________________________________________

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

Docket No. 12-74
Issued: May 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 14, 2011 appellant filed a timely appeal from the June 7, 2011 overpayment
decision by the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $6,825.72 for the period January 26 through May 8, 2010 because she received
compensation for wage loss after her benefits were terminated; and (2) whether OWCP properly
denied waiver of recovery of the overpayment in the amount of $5,594.79 for the period
February 14 through May 8, 2010, for which she was at fault in its creation.
On appeal, appellant notes that her current monthly income barely covers her monthly
living expenses and that she no longer has any excess savings. She stated that she honestly
1

5 U.S.C. § 8101 et seq.

thought she was entitled to the compensation. Appellant noted that when her compensation was
cut she experienced immense hardship and this worsened and resulted in the loss of her dwelling
place and consequent homelessness, which forced her to move in with her daughter and become
a burden. She requests that her debt be waived or that she be allowed to make payments in the
amount of $50.00 a month.
FACTUAL HISTORY
On January 12, 1988 appellant, then a 32-year-old food service worker, filed a traumatic
injury claim alleging that she injured her left shoulder, ribs, left hip and upper leg when, while
cleaning the concrete floor, she slipped and fell, landing on her left side. OWCP accepted her
claim for contusion of the left shoulder and hip, left frozen shoulder and shoulder impingement
syndrome, bicipital tenosynovitis and contusion of the hip and thigh. It paid wage-loss
compensation and medical benefits to appellant.
On December 18, 2009 OWCP proposed terminating appellant’s compensation benefits
as the medical evidence established that she no longer had any disability due to the accepted
work injury. It allotted her 30 days within which to submit evidence opposing the proposed
termination. Appellant did not respond within the time allotted.
By decision dated January 25, 2010, OWCP terminated appellant’s wage-loss benefits
effective that date. This decision was sent to appellant at her address of record and was not
returned by the U.S. Post Office.
By letter dated January 21, 2010 and received by OWCP on January 26, 2010, appellant
contested the proposed termination of benefits.
On September 9, 2010 OWCP issued a preliminary determination that appellant was
overpaid in the amount of $6,825.72 because benefits for compensation continued from
January 26 through May 8, 2010.2 It made a preliminary determination that she was at fault in
the creation of the overpayment because she accepted payments that she knew or reasonably
should have known to be incorrect.
On October 12, 2010 appellant disagreed that the overpayment occurred and disagreed
with the amount of the overpayment. She believed that the overpayment occurred through no
fault of her own and requested waiver of the recovery of the overpayment. Appellant requested a
prerecoupment hearing on the issue of fault and possible waiver of the overpayment. She
believed that at the time of payment she was eligible for workers’ compensation payments, that
she did not have any income and was not able to repay anything and that she was told that her
file had been transferred and that someone would contact her but they never did.
2

Pursuant to the payment history inquiry report, appellant received: $1,876.00 for the period covering April 11
through May 8, 2010; $1,876.00 for the period March 14 through April 10, 2010; and $1,814.00 for the period
February 14 through March 13, 2010. A payment was also made for health benefits in the amount of $28.79.
Finally, appellant was paid $1,814.00 for the period January 17 through February 13, 2010. As her benefits were
terminated on January 25, 2010 OWCP prorated this payment and determined that she was overpaid in the amount
of $1,230.93 for this time period. The total of these overpayments ($1,230.93 plus $28.79 plus $1,814.00 plus
$1,876.00 plus $1,876.00) equals the overpayment amount of $6,825.72.

2

At the prerecoupment hearing held before an OWCP hearing representative on March 18,
2011, appellant and her attorney stated that she did not receive the proposed notice of
termination until January 7, 2010 that her benefits were to be terminated on January 25, 2010 and
that she sent a letter to OWCP contesting the termination on January 21, 2010. She indicated
that she believed she was still entitled to receive benefits while she was appealing. Appellant
testified that she lives with her children and that her only income comes from social security.
She submitted a statement and supporting documentation indicating that her income from social
security was $449.34 a month and that she paid $150.00 to help cover the cost of her dwelling
expense with her children. In a letter dated April 18, 2011, appellant’s attorney indicated that
appellant’s monthly household expenses were $150.00, her monthly car note was $235.00 and
that her monthly personal expenses were $100.00.
By decision dated June 7, 2011, OWCP’s hearing representative affirmed the finding of
an overpayment in the amount of $6,825.72. He found that appellant had established that she
was without fault in the creation of the overpayment for the period January 26 through
February 13, 2010 as this first payment was deposited into her bank account via electronic funds
transfer (EFT). The hearing representative noted that, as her expenses exceeded her income, she
was entitled to waiver of $1,230.93, which represented the portion of the overpayment for which
she was not at fault and eligible for waiver. With regards to the remainder of the overpayment in
the amount of $5,594.79, he found that appellant was with fault in the creation of the
overpayment and therefore not entitled to waiver. The hearing representative demanded
payment of the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.
ANALYSIS -- ISSUE 1
Appellant’s compensation benefits were terminated by OWCP as of January 25, 2010.
However, she continued to receive compensation payments. The records indicate that appellant
received compensation in the amount of $6,825.72 after the termination of benefits. As she was
not entitled to receive compensation from January 26 through May 8, 2010, the amount of
compensation received for this time period resulted in an overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is found at fault in either accepting or creating an overpayment is not
eligible for a waiver of recovery of overpayment.4 A benefits recipient will be at fault if the
3

5 U.S.C. § 8102(a).

4

Id. at § 8129(b); 20 C.F.R. §§ 10.433(a) and 10.434.

3

individual: (1) made an incorrect statement as to a material fact which she knew or should have
known to be incorrect; (2) failed to provide information which she knew or should have known
to be material; or (3) accepted a payment which she knew or should have known to be incorrect.5
ANALYSIS -- ISSUE 2
OWCP found that appellant was without fault in the creation of an overpayment in the
amount of $1,230.93 covering the period January 26 through February 13, 2010. It further found
that she was entitled to waiver of recovery of this overpayment. However, OWCP found that
appellant was with fault in the creation of the remaining overpayment in the amount of $5,594.79
for the period February 14 through May 8, 2010. As appellant was with fault in the creation of
this overpayment, OWCP determined that it could not waive recovery of the overpayment, and
demanded payment in full.
The Board finds that appellant was at fault in the creation of the overpayment because
she accepted a payment which she knew or should have known to be incorrect. Appellant’s
compensation benefits were terminated on January 25, 2010. Yet she still continued to accept
compensation payments that she should have known to be incorrect. Appellant’s contention that
she believed that she was entitled to these payments while she appealed the termination is
without merit. The January 25, 2010 decision clearly stated that her benefits were terminated
effective January 25, 2010. Appellant stated that she did not receive this decision. However, the
record reflects that a copy of the January 25, 2010 decision was sent to her at her address of
record. The Board has found that, in the absence of evidence to the contrary, a letter properly
addressed and mailed in the due course of business, such as in the course of OWCP’s daily
activities, is presumed to have arrived at the mailing address in due course. This is known as the
mailbox rule.6 As OWCP properly mailed this decision to appellant at her address of record, it is
presumed to have arrived at her mailing address.

5

20 C.F.R. § 10.433(a).

6

Jeffrey M. Sagrecy, 55 ECAB 724, (2004); James A. Gray, 54 ECAB 277 (2002).

4

As appellant was at fault in the creation of that portion of the overpayment in the amount
of $5,594.79, the Board finds that OWCP properly denied waiver of recovery of the
overpayment.7
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $6,825.72 for the period January 26 through May 8, 2010
because she received compensation for wage loss after her benefits were terminated. The Board
further finds that it properly denied waiver of recovery of the overpayment in the amount of
$45,594.79 for the period February 14 through May 8, 2010 as appellant was at fault in its
creation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2011 is affirmed.
Issued: May 21, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

As OWCP did not direct recovery of the overpayment from continuing compensation payments, the Board does
not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004) (with
respect to the recovery of overpayments, the Board’s jurisdiction is limited to reviewing those cases where OWCP
seeks recovery from continuing compensation benefits under FECA).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-1762
Issued: March 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 29, 2009 appellant filed a timely appeal from the April 17, 2009 merit decision
of the Office of Workers’ Compensation Programs denying his claim for an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of this case.
ISSUE
The issue is whether appellant had more than five percent impairment to her right upper
extremity and five percent impairment to her left upper extremity, for which she received
schedule awards.
On appeal, appellant contends that the rating on the left hand should be greater than that
of the right hand. She stated that she was unhappy with the amount of time that she was seen by
her physicians.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 25, 2001, the
Board affirmed a January 28, 1999 Office decision denying appellant’s claim for a recurrence of
disability on and after May 1, 1998, causally related to her accepted conditions of bilateral flexor
tenosynovitis and bilateral carpal tunnel syndrome. The facts and history as set forth by the
Board in the prior decision are hereby incorporated by reference.1
On October 10, 2008 appellant filed a claim for a schedule award. By letter to appellant
dated October 27, 2008, the Office requested further information. No further information was
received in the allotted time. By decision dated December 11, 2008, the Office denied
appellant’s request for a schedule award.
In a medical report dated November 20, 2008, Dr. Steven L. Friedman, appellant’s
treating Board-certified orthopedic surgeon, noted that he examined appellant and that her right
upper extremity neurologic examination revealed no focal sensory deficit, no focal motor deficit
and no evidence of muscle atrophy. He also noted that the Tinel’s sign over the median nerve at
the right wrist was negative and that the Tinel’s sign at the ulnar nerve of the right elbow was
also negative. Dr. Friedman noted deep tendon reflexes were symmetric and two plus. He
noted no pathologic reflexes, rigidity or spasticity. With regard to the left wrist, Dr. Friedman
noted that the neurologic examination revealed no focal sensory deficit, no focal motor deficit
and no evidence of muscle atrophy. He indicated that the Tinel’s sign over the median nerve at
the wrist was negative and that the Tinel’s sign over the ulnar nerve at the elbow was negative.
Dr. Friedman noted a negative Phalen’s test, a negative elbow flexion test and deep tendon
reflexes symmetric at two plus. He noted no pathologic reflexes, rigidity or spasticity present.
Dr. Friedman indicated that appellant had clinical and radiographic evidence most suggestive of
mild bilateral osteoarthritis affecting the fingers of both hands. He noted that surgery had not
been done on either hand, and that the range of motion in digits and both wrists was full and not
restricted. Dr. Friedman opined that appellant had reached maximum medical improvement and
that he would estimate appellant to have a five percent permanent impairment of each hand
based on subjective complaints of pain and stiffness. He further noted that this conclusion was
based solely on his physical examination, as appellant had no specific loss of motion for
neurologic impairment.
On December 29, 2008 appellant requested reconsideration of the December 11, 2008
decision denying her claim for a schedule award.
By memorandum dated March 16, 2009, the Office asked the Office medical adviser to
review the record with regard to appellant’s claim for a schedule award pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides). In a reply dated the same date, the Office medical adviser reviewed the report of
Dr. Friedman, noted his physical findings and further noted that Dr. Friedman did not refer to
tables and pages in the A.M.A., Guides when evaluating appellant’s impairment. He stated that
appellant had not had surgery and that the magnetic resonance imaging scan of the left shoulder
1

Docket No. 99-1752 (issued July 25, 2001). The Office accepted the occupational disease claim of appellant, a
letter sorter machine operator, for bilateral flexor tenosynovitis and bilateral carpal tunnel syndrome.

2

did not indicate a reason to expand the accepted conditions or to represent an impairment. The
Office medical adviser further noted that the electromyogram/nerve conduction studies
performed on May 16, 1993 indicated right median nerve carpal tunnel syndrome. He found that
pursuant to the A.M.A., Guides 492, Table 16-15, the maximum percent of upper extremity
impairment for sensory deficit or pain, median nerve below midforearm, is 39 percent. The
Office medical adviser noted that, pursuant to A.M.A., Guides 482, Table 16-10, he would
suggest the mid-point of Grade 4 with regard to description of sensory deficits or pain,
representing a 12.5 percent sensory deficit. He then multiplied 39 percent by 12.5 percent and
determined that appellant had 5 percent impairment for each upper extremity, which he noted
was consistent with Dr. Friedman’s findings. The Office medical adviser stated that the date of
maximum medical improvement was November 20, 2008.
By decision dated April 17, 2009, the Office granted appellant a schedule award for five
percent impairment to her right upper extremity and five percent impairment to her left upper
extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.4 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
ANALYSIS
The Board finds that appellant has not met her burden to establish that she was entitled to
more than five percent impairment to each upper extremity, for which she received schedule
awards. The Office accepted appellant’s claim for bilateral flexor tenosynovitis and bilateral
carpal tunnel syndrome. In support of her claim for a schedule award, appellant submitted the
report of Dr. Friedman, her treating orthopedic surgeon, who noted that appellant had no focal
sensory or motor deficit in either upper extremity and no evidence of muscle atrophy.
Dr. Friedman noted negative Tinel’s signs over the median nerve of the wrist and the ulnar nerve
of the elbow in both upper extremities. He noted no pathologic reflexes, rigidity or spasticity.
Dr. Friedman noted negative Phalen’s tests, negative elbow flexion tests and deep tendon
reflexes symmetric at two plus. He also noted that surgery had not been done on either hand and
that the range of motion in both wrists was full and unrestricted. Dr. Friedman specifically noted
that appellant had no loss of motion for neurologic impairment. He found a five percent
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8107.

4

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

20 C.F.R. § 10.404.

3

impairment to each upper extremity; however, he did not refer to specific tables and pages of the
A.M.A., Guides. Accordingly, the Office properly referred the record to the Office medical
adviser who reviewed Dr. Friedman’s opinion and determined that, based on his physical
findings, appellant had a midlevel Grade 4 sensory deficit, pursuant to Table 16-10 on page 482
of the A.M.A., Guides, which he indicated equaled 12.5 percent sensory deficit. A Grade 4
impairment, pursuant to the A.M.A., Guides, involves distorted superficial tactile sensibility with
or without minimal abnormal sensation of pain that is forgotten during activity. As the Office
medical adviser noted, this is consistent with the physical descriptions given by Dr. Friedman.
He correctly noted, pursuant to Table 16-15, page 492 of the A.M.A., Guides, that the maximum
amount for sensory deficit or pain for the median nerve below the midforearm was 39 percent.
The Office medical adviser then multiplied 12.5 percent by 39 percent, which equals 4.88
percent, which he properly rounded up to find a 5 percent impairment in each upper extremity.6
The Board finds that the Office medical adviser used the appropriate portions of the A.M.A.,
Guides to calculate the percentage of impairment awarded. The Office medical adviser
accurately applied the rating criteria to Dr Friedman’s findings. His opinion is sufficient to
represent the weight of the medical evidence in this case.7 There is no medical evidence in the
record that establishes that appellant has a greater impairment. Accordingly, the Board finds that
appellant has no greater than five percent impairment to each upper extremity, for which she
received schedule awards.
CONCLUSION
The Board finds that appellant has not established that she had more than five percent
impairment to her right upper extremity and five percent impairment to her left upper extremity,
for which she received schedule awards.

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (January 2010);
see, e.g., Jesse Mendoza, 54 ECAB 802 (2003).
7

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 17, 2009 is affirmed.
Issued: March 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1194 &
12-1204
Issued: December 5, 2012

Case Submitted on the Record

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

JURISDICTION
On May 4 and 9, 2012 appellant filed timely appeals from the November 8, 2011 and
February 8, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that
modification of OWCP’s March 20, 2002 wage-earning capacity decision was warranted;
(2) whether appellant received a $134,838.03 overpayment of compensation; and (3) whether
appellant was at fault in the creation of the overpayment, thereby precluding waiver of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on March 1, 1997 appellant, then a 42-year-old materials handler,
sustained a lumbar strain, right hamstring strain and herniated discs at C5-6 and L5-S1 when he
stepped into a hole in a pallet.2 He stopped work on March 1, 1997 and did not return.
On October 5, 2000 Dr. Michael Slomka, a Board-certified orthopedic surgeon serving as
an OWCP referral physician, determined that appellant was capable of performing sedentary
work on a full-time basis and recommended training. He provided work restrictions, including
no lifting, pushing or pulling more than 25 pounds and no walking or standing for more than four
hours. In late October 2000, appellant began participating in an OWCP-sponsored vocational
rehabilitation program designed to return him to work.
In a November 21, 2000 report, Dr. Fred Turner, an attending Board-certified orthopedic
surgeon, noted that appellant stated that he was being placed in a vocational rehabilitation
program for retraining into a sedentary occupation. He recommended that appellant return to
work in a light-duty capacity with no lifting, no driving over two hours, no overhead reaching
and limited computer work in a job that would allow frequent position changes. Dr. Turner
advised that appellant was not a surgical candidate.
An Individual Placement Plan was developed with the goal of locating appellant with a
new employer in the customer service field. Appellant attended training as a customer service
representative at the Leahy Technical Center and completed training on June 27, 2001. He was
provided 90 days of placement assistance but was unsuccessful in returning to work. In
October 2001, appellant’s rehabilitation counselor determined that appellant could perform the
position of customer-complaint clerk. The labor market surveys showed that such work was
reasonably available in his commuting area at a salary of $360.00 a week. The position was
sedentary in nature and involved investigating and resolving issues that customers had with
merchandise and services. It required occasional lifting of up to 10 pounds and occasional
reaching and allowed accommodation for taking breaks.
Dr. Stanley Dennison, an attending Board-certified anesthesiologist, referred appellant to
Dr. Thomas Newman, a Board-certified neurologist. On October 8, 2001 Dr. Newman reported
a normal motor and sensory examination and advised that appellant should be capable of lightduty employment.
OWCP mailed Dr. Dennison copies of the description of the customer-complaint clerk
position and asked him to complete a work restrictions form. In a January 9, 2002 work
restrictions form, Dr. Dennison stated that appellant could work 8 hours a day with the
limitations of no lifting over 20 pounds and 15-minute breaks twice per day with a lunch break.
In a February 13, 2002 letter, OWCP advised appellant that it proposed to reduce his
compensation based on its determination that his wage-earning capacity was represented by the
2

OWCP had previously accepted that appellant sustained a left ankle strain at work on June 12, 1995. It was
later accepted that he had an adjustment disorder and psychogenic pain as a consequence of the March 1, 1997
injury.

2

constructed position of customer-complaint clerk. It provided him 30 days to submit evidence
and argument challenging the proposed action. Appellant submitted several medical reports but
they did not address his ability to work.
In a March 20, 2002 decision, OWCP reduced appellant’s compensation effective
March 24, 2002 based on its finding that his wage-earning capacity was represented by the
constructed position of customer-complaint clerk. The decision included an attached description
of his appeal rights and was mailed to his address of record.
In a March 26, 2002 letter, appellant requested a hearing. In a November 1, 2002
decision, OWCP determined that he had abandoned his request for a hearing.
In a May 20, 2010 letter, OWCP advised appellant of its preliminary determination that
he received a $134,838.03 overpayment of compensation. It noted that he was advised by a
March 20, 2002 decision that his compensation was being reduced effective March 24, 2002
based on his ability to work in the constructed position of customer-complaint clerk; but he
received compensation at the total disability rate until April 10, 2010 when his compensation
was reduced in accordance with the March 20, 2002 decision. OWCP made a preliminary
determination that he was at fault in creating the overpayment because he accepted payments that
he knew or reasonably should have known were incorrect. It provided appellant an opportunity
to challenge the overpayment and directed him to complete an attached financial information
questionnaire.3
In a February 25, 2011 report, Dr. Robert Guirguis, an attending osteopath and Boardcertified physiatrist, noted treating appellant since January 2009. Appellant was being treated for
lumbar radiculopathy secondary to an L5-S1 annular tear and extrusion as well as cervical
radiculopathy secondary to paracentral cervical disc herniation. Dr. Guirguis stated, “These
above injuries are functionally limiting [appellant’s] abilities and his overall activities of daily
living and hence, disabling. The current pain being treated is related to the industrial injury
dated March 1, 1997. Appellant’s current pain is not secondary to any preexisting conditions nor
are there any such conditions to my knowledge…. His work status is disabled.”
In a March 9, 2011 report, Dr. Harold Linde, an attending clinical psychologist, noted
Dr. Guirguis’ February 25, 2011 opinion that appellant’s L5-S1 annular tear and extrusion of his
cervical radiculopathy secondary to paricentral cervical disc herniation were the limiting factors
for him not being able to work. He advised that over the years appellant had made several
attempts to try and return to active employment through retraining and education, but these
attempts failed due to his chronic pain condition. Dr. Linde stated, “Therefore, it is my opinion
also that [appellant] is disabled from returning to active employment.”
On August 25, 2011 appellant participated in a prerecoupment hearing regarding the
May 20, 2010 preliminary overpayment determination. He testified that he never received a final
3

The record contains documents showing that appellant was paid $220,667.76 in compensation between
March 24, 2002 and April 10, 2010. The documents further show that, due to the March 20, 2002 wage-earning
capacity decision, he was only entitled to receive $85,829.73 for this period. The difference between these two
figures is the overpayment of $134,838.03.

3

decision with appeal rights regarding the proposed reduction of his compensation in 2002 based
on his ability to work as a customer-complaint clerk. Appellant claimed that he did not learn of
this reduction in his compensation until May 2010.4
In a November 8, 2011 decision, an OWCP hearing representative finalized OWCP’s
preliminary determination that appellant received a $134,838.03 overpayment of compensation.
He also finalized OWCP’s preliminary finding that appellant was at fault in creating the
overpayment, thereby precluding waiver of recovery. The hearing representative indicated that
the record clearly showed that the March 20, 2002 decision reducing appellant’s compensation
contained appeal rights and was mailed to his proper address.5
In a December 5, 2011 letter, appellant alleged that his work-related condition had
worsened and that he could not perform the constructed customer-complaint clerk position. He
requested that the March 20, 2002 wage-earning capacity decision be modified.
In a December 20, 2011 letter, OWCP advised appellant of the standards for modifying a
wage-earning capacity determination and afforded him 30 days to submit additional evidence.
Appellant submitted a number of medical documents, including several reports of
Dr. Guirguis. In a January 4, 2012 report, Dr. Guirguis diagnosed lumbalgia, lumbar facet
arthropathy, cervical radiculopathy, left arm radiculitis, cervical facet joint disease, muscle
spasm and bilateral sacroiliitis. He stated that appellant’s condition had worsened and he
reported increased pain associated with more myospasm in the cervical and lumbar regions as
well as increased generalized allodynia. Dr. Guirguis stated that appellant had reduced upper
extremity strength compared to previous examinations.
In December 27, 2011 and January 31, 2012 reports, Dr. Linde stated that on several
office visits in December 2011 and January 2012 appellant reported flare-ups of his lumbar and
cervical pain. He noted that appellant appeared depressed and anxious at a number of these
visits.
In a February 8, 2012 decision, OWCP denied modification of its March 20, 2002 wageearning capacity decision. It found that the evidence did not establish that appellant sustained a
material change in his condition, that he was retrained or vocationally rehabilitated or that the
original wage-earning capacity decision was erroneous. OWCP determined that the medical
evidence did not show that the injury-related condition had materially worsened.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
4

Appellant advised that he paid a monthly mortgage of about $700.00 and received compensation of about
$475.00 every 28 days. The record shows that he actually was entitled to receive about $551.00 in compensation
each month, but that $75.00 was deducted each 28 days for court-ordered support payments.
5

The hearing representative indicated that he was unable to determine an equitable repayment schedule for the
overpayment.

4

wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless appellant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.8 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.9
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. 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, 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.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.11
6

Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
8

Stanley B. Plotkin, 51 ECAB 700 (2000).

9

Id.

10

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a). Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment conditions. The job selected
for determining wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives. Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB
409, 411 (1982).
11

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953). See also Federal (FECA) Procedure Manual, supra note 7, Chapter
2.814.8 (December 1993).

5

ANALYSIS -- ISSUE 1
OWCP accepted that on March 1, 1997 appellant sustained a lumbar strain, right
hamstring strain and herniated discs at C5-6 and L5-S1 when he stepped into a hole in a pallet.12
In a March 20, 2002 decision, it reduced his compensation effective March 24, 2002 based on its
determination that his wage-earning capacity was represented by the constructed position of
customer-complaint clerk. In a December 5, 2011 letter, appellant alleged that his work-related
condition had worsened and that he was no longer able to perform the constructed position of
customer-complaint clerk. He requested that the March 20, 2002 wage-earning capacity
determination be modified.
OWCP based appellant’s loss of wage-earning capacity on a determination that his wageearning capacity was represented by wages he could earn in the constructed position of
customer-complaint clerk. Appellant did not submit evidence showing that OWCP’s original
determination with regard to his wage-earning capacity was erroneous. His vocational
rehabilitation counselor determined that he was able to perform the position of customercomplaint clerk and that state employment services showed the position was available in
sufficient numbers so as to make it reasonably available within his commuting area.13 OWCP
properly relied on the opinion of the rehabilitation counselor that appellant was vocationally
capable of performing the customer-complaint clerk position. A review of the medical evidence,
including the reports of Dr. Dennison, an attending Board-certified anesthesiologist, reveals that
appellant was physically capable of performing the position.14 Appellant did not submit any
evidence or argument showing that he could not vocationally or physically perform the
customer-complaint clerk position.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the customer-complaint clerk position represented his wage-earning capacity.15
The weight of the evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the customer-complaint clerk position and that such a position
was reasonably available within the general labor market of his commuting area. Therefore,
OWCP properly based his wage-earning capacity effective March 24, 2002 on the customercomplaint clerk position. For these reasons, appellant has not shown that OWCP’s original
determination with regard to his wage-earning capacity was erroneous.

12

OWCP previously accepted that appellant had a left ankle strain at work on June 12, 1995. It later accepted
that appellant had an adjustment disorder and psychogenic pain as a consequence of the March 1, 1997 injury.
13

The position of customer-complaint clerk was sedentary in nature and involved investigating and resolving
issues that customers had with merchandise and services. It required engaging in occasional lifting of up to 10
pounds and occasional reaching and allowed accommodation for taking breaks.
14

In a January 9, 2002 work restrictions form, Dr. Dennison stated that appellant could work 8 hours a day with
the limitations of no lifting over 20 pounds and 15-minute breaks twice per day with a lunch break. These
restrictions would allow appellant to perform the position of customer-complaint clerk.
15

See Clayton Varner, 37 ECAB 248, 256 (1985).

6

Appellant alleged that there was a material change in the nature and extent of his
employment-related condition. However, the medical evidence of record does not show such a
material change in his injury-related condition. The medical evidence does not contain a
rationalized medical opinion showing that an employment-related condition prevented appellant
from performing the customer-complaint clerk position or otherwise establish that OWCP
improperly determined his wage-earning capacity.16
In a February 25, 2011 report, Dr. Guirguis, an attending physician, indicated that
appellant was being treated for lumbar radiculopathy secondary to an L5-S1 annular tear and
extrusion as well as cervical radiculopathy secondary to paracentral cervical disc herniation. He
stated, “These above injuries are functionally limiting [appellant’s] abilities and his overall
activities of daily living and hence, disabling…. [Appellant’s] work status is disabled.”
However, Dr. Guirguis did not describe any objective worsening of appellant’s injury-related
condition at this time or explain why he could not perform the extremely limited duties of a
sedentary position like the consumer-complaint clerk position.
In a January 4, 2012 report, Dr. Guirguis diagnosed lumbalgia, lumbar facet arthropathy,
cervical radiculopathy, left arm radiculitis, cervical facet joint disease, muscle spasm and
bilateral sacroiliitis. He stated that appellant’s condition had worsened and that he reported
increased pain associated with more myospasm in the cervical and lumbar regions as well as
increased generalized allodynia. Dr. Guirguis essentially reported an increase in reported
symptoms, but he did not provide objective evidence of a material worsening in appellant’s
injury-related condition. He did not provide a clear opinion that the accepted work injuries
stemming from the March 1, 1997 accident or other work-related injuries contributed to
appellant’s condition at this time such that he could not work as a customer-complaint clerk.17
Moreover, appellant has not been retrained or otherwise vocationally rehabilitated such
that the customer-complaint clerk position would not be representative of his wage-earning
capacity.
For these reasons, the Board finds that appellant did not meet his burden of proof to
establish that modification of OWCP’s wage-earning capacity decision was warranted.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

16

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

17

Dr. Guirguis stated that appellant had reduced upper extremity strength compared to previous examinations, but
it is not clear that this was due to the injury-related condition or that such a diminishment of strength would have
prevented him from working in the sedentary position of a customer-complaint clerk. In reports dated March 9,
December 27, 2011 and January 31, 2012, Dr. Linde, an attending clinical psychologist, discussed appellant’s
emotional condition. He did not provide any indication that appellant suffered a material worsening of his accepted
emotional conditions, which would have prevented him from working as customer-complaint clerk.

7

LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.18 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”19
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.20
ANALYSIS -- ISSUE 2
OWCP’s March 20, 2002 decision properly reduced appellant’s compensation effective
March 24, 2002 based on a determination that his wage-earning capacity was represented by the
constructed position of customer-complaint clerk. The record documents that appellant was paid
$220,667.76 in compensation between March 24, 2002 and April 10, 2010. The evidence further
shows that, due to the March 20, 2002 wage-earning capacity decision, he was only entitled to
receive $85,829.73 for this period. The difference represents an overpayment of $134,838.03.
The record establishes that appellant received a $134,838.03 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.21 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”22 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.23

18

5 U.S.C. § 8102(a).

19

Id. at § 8129(a).

20

Id. at § 8116(a).

21

Id. at § 8129(a).

22

Id. at § 8129(b).

23

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

8

In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who-(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect….”24
Section 10.433(c) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”25
ANALYSIS -- ISSUE 3
OWCP found appellant at fault in the creation of the $134,838.03 overpayment because
he accepted payments which he knew or should have known to be incorrect. It properly
determined that he was at fault in the creation of the overpayment.
Appellant received $220,667.76 in compensation between March 24, 2002 and April 10,
2010, but was only was only entitled to receive $85,829.73 for this period. He claimed that he
never received a final decision with appeal rights regarding the proposed reduction of his
compensation in 2002 based on his ability to work as a customer-complaint clerk. Appellant
asserted that he did not learn of the reduction in his compensation until May 2010. However, the
record contains a March 20, 2002 final decision informing him of the specific details of the
reduction of his compensation effective March 24, 2002. The decision contained attached appeal
rights and was mailed to appellant’s address of record. In a March 26, 2002 letter, appellant
requested a hearing before an OWCP hearing representative to challenge OWCP’s decision to
reduce his compensation. In a November 1, 2002 decision, OWCP determined that appellant had
abandoned his request for a hearing. On appeal, appellant suggested that he was not mentally
competent to understand that he received an overpayment, but he did not present evidence to
support this assertion.
Appellant’s contention that he was not aware of the reduction of his compensation
effective March 24, 2002 is without merit. He received total disability compensation after
24

20 C.F.R. § 10.433(a).

25

Id. at § 10.433(c).

9

March 24, 2002 and knew or should have known that this was incorrect. OWCP made a mistake
by not reducing his compensation in accordance with its March 20, 2002 decision. Even though
it may have been negligent in continuing to issue wage loss for total disability after it reduced his
compensation due to a wage-earning capacity determination, this does not excuse his acceptance
of such checks which he knew or should have been expected to know were incorrect.26 Given
the extremely large amount of compensation appellant received to which he was not entitled, as
well the lengthy period he received these payments, he accepted payments between March 24,
2002 and April 10, 2010, which he knew or should have known were incorrect. Because he was
at fault in the creation of the $134,838.03 overpayment, OWCP properly determined that he
would not be entitled to waiver of recovery of the overpayment.27
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that
modification of OWCP’s March 20, 2002 wage-earning capacity decision was warranted. The
Board further finds that he received a $134,838.03 overpayment of compensation and that he was
at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment.

26

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

27

See supra notes 22 and 23.

10

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2012 and November 8, 2011
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 5, 2012
Washington, DC

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

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

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

11