United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lyndhurst, NJ, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1547
Issued: November 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2015 appellant, through his representative, filed a timely appeal from
March 23 and June 25, 2015 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.
ISSUE
The issue is whether appellant met his burden of proof to establish an employmentrelated injury on April 7, 2014.
On appeal appellant’s representative asserts that an employing establishment manager
barreled into appellant on April 7, 2014, causing him to fall, which resulted in injuries and
disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 8, 2014 appellant, then a 59-year-old retail associate/window clerk, filed a
traumatic injury claim (Form CA-1) alleging that on April 7, 2014, Kevin Flynn, customer
services manager, lowered his shoulder and barreled into him, knocking him to the concrete floor
causing injury to his right knee, left knee and shoulder down left arm, back, and headaches. He
stated that he could not get up, and an ambulance was called. Appellant stopped work at that
time. On the claim form Mr. Flynn stated that, as appellant walked toward him, he leaned into
Mr. Flynn and made soft contact, then walked quickly backward, and sat on the ground.
Appellant accused Mr. Flynn, and the police were called. He stated that the claim was being
challenged. Mr. Flynn maintained that the claim was fraudulent and an investigation would be
conducted.
A Lyndhurst Police Department investigation report dated April 7, 2014 found that
Richard Disanza had called 911 because appellant had fallen to the floor and claimed to be
injured. The report stated that Mr. Flynn advised that appellant brushed shoulders with him, then
threw himself backwards, landed on the floor, and claimed to have been shoved by Mr. Flynn.
The report found that appellant alleged that, while walking past Mr. Flynn, Mr. Flynn lowered
his shoulder striking appellant’s left shoulder, which caused him to stumble backwards and fall
to the ground. Appellant stated that he hit the inside of his right knee. He stated that he would
decide later whether to file a complaint against Mr. Flynn. Appellant was transported to Clara
Maass Medical Center for evaluation.
In an April 7, 2014 statement, Mr. Flynn advised that early on April 7, 2014 he had
talked with appellant about deficiencies noted in a “mystery shopper report” from April 3, 2014.
He stated that at approximately 3:15 p.m. on April 7, 2014, as he was separating mail for the
evening dispatch, appellant started walking toward him, and he leaned inward to give appellant
more room, noting that appellant was a much larger person. Mr. Flynn stated that as appellant
walked past, he lightly touched Mr. Flynn’s left shoulder with his left shoulder, barely making
contact. He stated that appellant then became animated and abruptly began walking backwards,
and carefully and slowly set himself onto the floor and yelled that Mr. Flynn had shoved him and
called for an ambulance. Mr. Flynn asked Mr. Disanza to call 911. Appellant then asked
Mr. Disanza to help him up, which he did, and appellant stated that he did not need an
ambulance. Upon rising, appellant, who was limping, called a shop steward on his cellular
telephone. Mr. Flynn noted that earlier in the day, he had received a call from another shop
steward because appellant was unhappy about receiving a work deficiency regarding a mystery
shopper visit. He attached documentation dated April 7, 2014 where he had informed appellant
of 94 percent mystery shopper score on April 3, 2014, which was unacceptable. Appellant noted
that the shopper’s closing comment was, “It is unlikely that I would return to this [employing
establishment] because I did n[o]t feel that the clerk gave me options before attempting to
complete my purchase.”
In an April 7, 2014 statement, Mr. Disanza advised that, as he was sitting at his desk, he
noticed appellant walking and Mr. Flynn breaking down mail. He stated that, when he turned his
head, he saw appellant walking backwards really fast, as if he had lost his balance, and then he
landed on the floor. Mr. Disanza related that, because appellant asked for an ambulance, he

2

called 911, and then appellant stated that he did not want an ambulance. After getting up,
appellant was limping, and then the police arrived.
A Clara Maass Medicine Center Emergency Department record dated April 7, 2014 noted
a history that appellant was involved in an altercation at work that day and was pushed to the
floor, sustaining an injury to the right knee. Dr. Allison Lam, Board-certified in emergency
medicine, provided a history that appellant stated that he was hit in the head with a manager’s
elbow and pushed to the ground. Appellant related that during the assault, he twisted his right
knee and injured his low back during the fall, and now complained of right knee and low back
pain, and a mild headache. Physical examination demonstrated lumbar paravertebral tenderness,
and tenderness to the lateral aspect of the right knee with limited range of motion with flexion,
secondary to pain. There was no knee swelling or ecchymosis. Gait was normal. A right knee
x-ray demonstrated no evidence of acute bony abnormality. Discharge diagnosis was right knee
sprain, and appellant was advised to follow-up with his primary care provider.
A notice, signed by appellant on April 9, 2014, indicated that appellant had filed a civil
complaint and trial was scheduled on April 22, 2014.
An April 28, 2014 investigative memorandum from the postal inspection service reported
that appellant alleged that Mr. Flynn had bumped into him and knocked him to the floor, but that
Mr. Flynn had denied the allegation. On April 9, 2014 two postal inspectors interviewed
appellant at the Lyndhurst Police Department where he was making a complaint against
Mr. Flynn about the April 7, 2014 incident. Appellant was wearing a brace on his right knee and
was represented by a union representative. The report stated that appellant alleged that
Mr. Flynn dropped his shoulder and hit him with a hard shot that leveled him, he fell to floor, he
did not know if he hit his head, and he could not get up. He was then transported to the hospital
via ambulance and reported that since the incident, he has back, bilateral knee, and left elbow
pain, a twitching eye, and headaches. The report states that the investigators interviewed both
Mr. Disanza and Mr. Flynn who disputed appellant’s description of the incident.
In statements dated May 6 and 14, 2014 statement, appellant maintained that he was not
upset by the mystery shopper score on April 7, 2014. He stated that, throughout that day
Mr. Flynn had berated and harassed him, that he had called a union steward about it, and that,
after the steward called Mr. Flynn about it, the incident happened. Appellant maintained that
part of the mystery shopper grade was for things outside his control such as a dirty lobby and
insufficient forms in the lobby. He reiterated that Mr. Flynn knocked him to the floor and
discussed events that happened prior to the April 7, 2014 incident. Attached was a retail
customer experience shopper evaluation dated April 3, 2014,2 and postal policies regarding
mystery shopper evaluations.
In a May 7, 2014 statement, Mr. Flynn reiterated that he did not assault appellant. He
noted that appellant had reported different versions of the scenario on his Form CA-1, on the
police report, and in an assault charge that he filed with the police. Mr. Flynn maintained that
appellant was approximately five inches taller and 125 pounds heavier, which made it
2

Appellant was not identified in the evaluation.

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logistically impossible for appellant to sustain the claimed injuries from sitting on the floor after
walking backwards.
In an April 10, 2014 report, Dr. David N. Feldman, a Board-certified orthopedic surgeon,
reported a history that appellant was involved in an altercation at work when a man bumped into
his left shoulder, dropping him to the floor, and presented for evaluation of left elbow, back, and
bilateral knee pain, which occurred suddenly after the work injury. He noted a past history of
three knee arthroscopic procedures, that appellant used crutches to ambulate, and walked with an
antalgic gait. Dr. Feldman described examination findings and reviewed x-rays of the left knee,
lumbar spine, and cervical spine. He diagnosed cervical spondylosis without myelopathy;
sprains and strains of the neck; lumbago; sacroiliitis; lumbar sprains and strains; osteoarthrosis of
the left knee; chondromalacia patella; lower leg effusion, pain, and stiffness; sprains and strains
of the elbow and forearm with pain and stiffness; and dislocation knee tear of medial cartilage or
meniscus. Dr. Feldman recommended further studies.
An April 12, 2014 magnetic resonance imaging (MRI) scan of the right knee
demonstrated full-thickness cartilage loss, prior surgical changes, a partial thickness tearing of
the proximal patellar tendon, and an intact lateral meniscus. An April 16, 2014 MRI scan study
of the left elbow demonstrated degenerative changes and chronic intrasubstance tearing.
On April 28, 2014 Dr. Feldman noted appellant’s complaint of continued left elbow and
bilateral knee pain. He reviewed the MRI scan studies, performed physical examination, and
reiterated his diagnoses. An April 30, 2014 MRI scan of the left knee demonstrated severe
medial tibiofemoral compartment degenerative change, a degenerative tear of the medial
meniscus, and a partial thickness intrasubstance tear of the proximal patellar tendon. In a
treatment note dated May 15, 2014, Dr. Feldman discussed appellant’s MRI scan findings. He
reported that appellant, who was assaulted and knocked to the ground, was being treated for
partial patellar tendon tear, contusions of the knees, meniscus tears of the left knee, a left elbow
sprain, and low back pain. Dr. Feldman advised that appellant was unable to return to work.
In correspondence dated May 16, 2014, Gary Dalton, a union vice president, described
meeting with appellant and two postal inspectors at the Lyndhurst Police Department on
April 9, 2014. He stated that appellant was on crutches with a brace on his right knee.
Mr. Dalton disagreed with the investigation report and Mr. Flynn’s assertions. He discussed
“mystery shopper” policy and maintained that Mr. Flynn had a history of harassing employees,
including appellant. Mr. Dalton concluded by stating that Mr. Disanza’s statement fully
supported appellant’s claim.
On May 19, 2014 Deborah Wagner, Ph.D., a licensed clinical psychologist, stated that
appellant was receiving psychotherapy following an incident when he was assaulted at work by
his supervisor and was seriously injured. She related that since the incident he suffered from
extreme anxiety, depression, suicidal ideation, insomnia, problems with concentration, and more.
Dr. Wagner diagnosed post-traumatic stress disorder and opined that his symptoms were a direct
result of the April 7, 2014 assault.

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By decision dated May 27, 2014, OWCP denied appellant’s claim because there were
conflicting versions of how the claimed incident occurred. Appellant timely requested a hearing
before an OWCP hearing representative.
On June 5, 2014 Dr. Feldman advised that appellant was scheduled for knee surgery on
June 10, 2014 and would be out of work until August 15, 2014.
On June 20, 2014 the U.S. District Court, District of New Jersey, dismissed a civil action
with prejudice, filed by the State of New Jersey against Mr. Flynn, as the municipal prosecutor
would not prosecute, the complaint.
In an undated report, Dr. Deborah Eisen, Board-certified in family medicine, stated that
she examined appellant on June 2, 2014. Appellant reported a history that on April 7, 2014 he
was assaulted by his supervisor who pushed him, causing him to fall to the floor injuring his left
elbow, neck, back, and both knees. Dr. Eisen noted that he had identical findings on knee MRI
scan studies of patellar tendon tears, and this could have only have occurred due to the April 7,
2014 incident when, following being pushed or bumped by his supervisor, appellant’s upper
body moved before his lower portion, causing both patellar tendons to tear.
At the hearing, held on January 7, 2015, appellant testified that on April 7, 2014 he was
returning to his workstation as a window clerk and Mr. Flynn was approaching from the opposite
direction. He stated that Mr. Flynn dropped his shoulder, barreled into him, banged into him,
and hit him below his left shoulder, knocking him backwards, spinning him around, and
knocking him to the floor. Appellant stated that he asked for an ambulance, and Mr. Disanza
called 911. He related that he was helped up and went in the back and sat on the platform, and
that two policemen came and he gave a statement, alleging that Mr. Flynn assaulted him.
Appellant was then transported by ambulance to an emergency room. He stated that he had left
knee surgery on June 17, 2014 to repair a torn patella tendon. Appellant discussed the mystery
shopper assessment and maintained that he was constantly harassed by Mr. Flynn. He stated that
he had just returned to work three weeks prior to the hearing. Appellant’s representative argued
that Mr. Flynn’s statement was totally false and that Dr. Eisen’s report was totally supportive of
appellant’s claim.
By decision dated March 23, 2015, an OWCP hearing representative affirmed the
May 27, 2014 decision, finding that, as there was no evidence that an assault occurred, appellant
did not establish that the incident occurred as reported.
On April 17, 2015 appellant, through his representative, requested reconsideration. He
asserted that, whether or not an assault took place, the evidence supported that on April 7, 2014
appellant fell at work and, therefore, appellant established fact of injury. In support, appellant
submitted duplicates of Mr. Disanza’s statement, and the reports from Dr. Eisen and Dr. Wagner.
He also submitted documentation regarding the complaint he filed against Mr. Flynn and its
resolution and excerpts of OWCP procedure manual.
In a merit decision dated June 25, 2015, OWCP denied modification of the prior decision.

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LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.8
ANALYSIS
The Board finds that, based on contradictory testimony, the record does not establish that
an incident occurred at work on April 7, 2014 as alleged. Mr. Flynn advised that appellant
leaned into him, brushed, or bumped into him as he was walking past. In various reports,
appellant provided different versions of the incident. On the claim form, he stated that Mr. Flynn
lowered his shoulder, barreled into him, and this knocked him to the floor. In personal
statements, appellant stated that Mr. Flynn knocked him to the floor. At the hearing, he testified
that on April 7, 2014 as he was returning to his work station, Mr. Flynn was walking toward him,
3

J.P., 59 ECAB 178 (2007).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

R.T., Docket No. 08-408 (issued December 16, 2008).

8

Betty J. Smith, 54 ECAB 174 (2002).

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dropped his shoulder, barreled into him, banged into him, and hit him below his left shoulder,
knocking him backwards, spinning him around, and knocking him to the floor.
The police reported on April 7, 2014 that appellant stated that, while walking past
Mr. Flynn, he lowered his shoulder, striking appellant’s left shoulder, and this caused him to
stumble backwards and fall to the ground. In the emergency department record on April 7, 2014,
Dr. Lam reported a history that appellant was hit in the head with a manager’s elbow and was
pushed to the ground. In a postal service investigative memorandum dated April 28, 2014,
appellant reported that Mr. Flynn dropped his shoulder and hit him with a hard shot that leveled
him, and he fell to the floor and could not get up. Dr. Feldman reported a history that appellant
was assaulted at work and knocked to the ground. Dr. Wagner reported a history that appellant
was assaulted at work by his supervisor and seriously injured. Dr. Eisen reported a history that
appellant was assaulted by his supervisor who pushed him, and this caused him to fall to the
floor.
The only witness statement is from Mr. Disanza. Mr. Disanza related on April 7, 2014
that, as he was sitting at his desk, he noticed that appellant was walking and that Mr. Flynn was
breaking down mail. He stated that when he turned his head, he saw appellant walking
backwards really fast, as if he had lost his balance, and then he landed on the floor.
Physical contact by a coworker or supervisor may give rise to a compensable work factor,
if the incident occurred as alleged.9 Mr. Disanza did not witness any touching, and appellant
provided different versions of the event. Because there are significant inconsistencies in his
description of the claimed assault and how he fell, they are sufficient to cast serious doubt as to
whether the employment incident occurred as alleged. Thus, the Board finds that appellant has
not met his burden of proof to establish an employment-related incident on April 7, 2014.10
As appellant has not established that the alleged April 7, 2014 employment incident
occurred, it is not necessary to review the medical evidence of record.11
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 failed to meet his burden of proof to establish an
employment-related injury on April 7, 2014.

9

Denise Y. McCollum, 53 ECAB 647 (2002).

10

See supra note 8.

11

See D.R., Docket No. 15-1281 (issued September 16, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the June 25 and March 23, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Oakland, CA, Employer
__________________________________________

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Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-537
Issued: February 8, 2013

Case Submitted on the Record

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

JURISDICTION
On January 12, 2012 appellant filed a timely appeal from July 25 and 28, 2011 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 OWCP properly found that appellant forfeited his right to
compensation for periods between May 7, 1993 and August 16, 2010; (2) whether appellant
received a $659,755.65 overpayment of compensation; (3) whether appellant was at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment; and
(4) whether OWCP properly reduced appellant’s compensation effective December 21, 2010
based on its determination that his actual wages as an apartment manager fairly and reasonably
represented his wage-earning capacity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on October 19, 1981 appellant, then a 33-year-old pipe fitter,
sustained a herniated lumbar disc at L3-4 and ventral hernia due to lifting heavy objects at work.
Appellant underwent several OWCP-authorized surgeries, including a laminectomy at L3-4 on
February 17, 1982, hernia repair on July 21, 1992 and fusion at L4-5 on September 5, 1996. He
intermittently stopped work following his October 19, 1981 injury. Appellant last worked for the
employing establishment in 1993.
Between August 7, 1994 and August 16, 2010, appellant completed CA-1032 forms
containing extensive language advising him of what types of employment activities and earnings
he was required to report for each 15-month period prior to the time he signed each form.2 On
the CA-1032 forms he completed between September 3, 1995 and April 1, 2002, appellant listed
rental monies that he received from a duplex building at 8/10 Salada Avenue in Pacifica, CA, a
property which he and his wife owned. He did not list any other employment activities or
earnings on the forms.
The CA-1032 forms instructed appellant to report all employment for which he received
a salary, wages, income, sales commissions, piecework or payment of any kind. Appellant was
directed to report all self-employment or involvement in business enterprises, including (but not
limited to) farming, sales work, operating a business, and providing services in exchange for
money, goods or other services. The kinds of services that appellant was required to report
included such activities as carpentry, mechanical work, painting, contracting, child care, keeping
books and records, odd jobs, and managing and overseeing a business of any kind, including a
family business. Such activities had to be reported even if they were part time or intermittent.
The CA-1032 forms also instructed appellant to report any work or ownership interest in
any business enterprise, even if the business lost money or if profits or income were reinvested
or paid to others. If appellant performed any duties in a business enterprise for which he was not
paid, he had to show as the rate of pay what it would have cost the employer or organization to
hire someone to perform the work or duties he did, even if the work was for him or a family
member or relative. The forms contained certification clauses which informed appellant of the
consequences of not accurately reporting his employment activities, such as being subjected to
criminal penalties and losing the right to receive workers’ compensation.
In October 1994, appellant was assigned, an OWCP-sponsored nurse, Jeanne Hartlaub, to
help him return to work. In a December 31, 1994 report memorializing the first meeting on
November 16, 1994, Nurse Hartlaub stated that appellant reported that he lived in an apartment
building owned by his father and that “he manages the building for his father.” Appellant
indicated that, with respect to maintenance work, his son had done some work and he had hired
out some work. He did not return to work and the services of Nurse Hartlaub were discontinued.
In an April 5, 2002 letter, OWCP indicated that appellant had listed on the EN1032 form
he completed on April 1, 2002 self-employment from renting a house. It requested additional
2

Given the 15-month period covered by each completed form, the forms collectively covered the following
periods: May 7, 1993 to August 3, 1996, September 23, 1997 to September 26, 2000 and January 1, 2001 to
August 16, 2010.

2

information by stating, “Please advise if you are in the business of rental housing or is this just
one house you happen to own and rent. If it is a business, please submit a copy of your income
tax return. Who performs maintenance? If it is yourself, please describe type of maintenance
performed and average weekly hours spent on maintenance.” On April 15, 2002 appellant
responded by stating, “In regards to your letter dated April 5, 2002 about the completed CA1032. The rental house is just one house my wife and me own and rent. Thank you straitening
(sic) out this area of that form for me.”
In late 2010, the Naval Criminal Investigation Service (NCIS), the investigative branch of
the employing establishment, investigated appellant’s employment activities since the early
1990s. After evaluating the results of the investigation, including testimony transcripts and
documents regarding the rental of properties, it concluded in November 8, 2010 reports that
appellant had worked as an apartment manager since at least January 1983.
The record contains a recording of an October 5, 2010 interview of appellant conducted
by two NCIS investigators. Appellant testified that at some point between November 1982 and
January 1983 he moved into an apartment (No. 1) of a five-apartment building at 15 Santa Maria
Avenue in Pacifica, CA, which was owned by his father. He responded in the affirmative to
questions about whether, since he moved to 15 Santa Maria Avenue, he had engaged in various
activities with respect to managing the rental of the building’s apartments (i.e., the four
apartments other than his own) such as placing advertisements of empty apartments in
newspapers and online, placing signs outside to attract potential renters, answering telephone
calls from prospective renters and signing his name to inventory checklists and rental
agreements. Appellant indicated that he collected rent payments for the apartment noting that
usually payments would be placed in a “manager’s box” and that sometimes he would sign the
checks and deposit them into his father’s bank accounts.3 He stated that he made repairs on the
apartments at 15 Santa Maria Avenue if he “felt capable of doing it,” but indicated that mostly
his son performed the repairs or he hired others to do them. When the lead investigator asked
appellant if he ever changed any faucets, he responded that he had not done so in a long time and
that his son usually handled such tasks. When the investigator indicated that appellant’s
activities with respect to the building at 15 Santa Maria Avenue appeared to be those of an
apartment manager, appellant asserted that his activities were part of what family members do to
help each other and stated, “Maybe under the law this considered me as that [sic]. I could pretty
much consider [my son] as a manager.” When told that the renters at 15 Santa Maria Avenue
considered him to be the apartment manager, appellant indicated, “OK, well, I’m the apartment
manager, I guess … so whatever that means.” He noted that he lived at 15 Santa Maria Avenue
on a rent-free basis and indicated that he believed he might be able to rent the apartment he lived
in for $1,400.00 per month. Appellant stated that someone from OWCP told him that if he
happened to own a particular apartment, then it was not a business and that he did not have to
report it on his CA-1032 forms.
Appellant further claimed that because he “happened to live” at 15 Santa Maria Avenue
he believed that his activities with respect to the building did not constitute a business. When
told by the lead investigator that he should have reported his activities at 15 Santa Maria Avenue
because he did not own the building, appellant asserted that he should have been told that he had
3

Appellant stated that some of these tasks would also be performed by others, including his son and his father.

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to report such activities and also stated, “I’m probably liable for that….” Appellant discussed
the actions of Nurse Hartlaub in 1994, including visiting him at 15 Santa Maria Avenue, and
suggested that she was aware of his activities with respect to the building. Regarding his
completion of OWCP forms, appellant stated, “It seems like I read in that thing that if you think
you’re doing it right … you’re not breaking the law exactly.” When the lead investigator
advised him that he filled out the CA-1032 forms improperly, appellant indicated, “I know I’m
still wrong and that I have to pay probably, but that doesn’t necessarily mean that I had malice or
that I was trying to cheat anybody….”
In a November 8, 2010 memorandum, NCIS investigators detailed an interview that was
held with appellant’s father on October 5, 2010. Appellant’s father testified that he purchased
the building located at 15 Santa Maria Avenue in 1966 and paid it off in 1982.4 He indicated that
appellant moved into his apartment (No. 1) at 15 Santa Maria Avenue in 1982 after he moved to
Clearlake, CA, and that, upon moving in, appellant took over as apartment manager. Appellant’s
father stated that he did not pay appellant a salary for working as an apartment manager, but
noted that appellant lived at 15 Santa Maria Avenue on a rent-free basis because he worked for
him as an apartment manager. Appellant’s father indicated that appellant went to the bank and
deposited the rent checks for him with respect to 15 Santa Maria Avenue and estimated that he
could get $1,300.00 to $1,500.00 per month if he rented the apartment. On August 25, 2010
NCIS investigators interviewed a current renter at 15 Santa Maria Avenue who indicated that
appellant stated that he served as the apartment manager for the building and that his father
owned the building. The renter indicated that appellant showed him the apartment and signed
the inventory checklist and rental agreement.5 He noted that he paid his rent each month by
giving appellant the amount in cash.
In a December 21, 2010 decision, OWCP reduced appellant’s compensation effective
December 21, 2010, finding that his work as an apartment manager fairly and reasonably
represented his wage-earning capacity. It noted that appellant was not paid a salary as apartment
manager but was supplied with a rent-free apartment, a benefit with a value of $1,400.00.
In a December 29, 2010 decision, OWCP determined that appellant forfeited his right to
compensation for the periods May 7, 1993 to August 3, 1996, September 23, 1997 to
September 26, 2000 and January 1, 2001 to August 16, 2010 because he failed to report
employment and earnings on CA-1032 forms covering these periods. It indicated that appellant
worked as an apartment manager at a building owned by his father (located at 15 Santa Maria
Avenue in Pacifica, CA) for which he received a rent-free apartment valued at $1,400.00.
OWCP noted that the wording of the CA-1032 forms advised appellant of the need to report such
employment and earnings.6

4

The investigators added documents to the record which supported the results of their interviews, including
property records showing that appellant’s father owned the building at 15 Santa Maria Avenue.
5

The record contains an inventory checklist and rental agreement signed by appellant in July 2010 for the renter’s
apartment (No. 3) at 15 Santa Maria Avenue.
6

OWCP indicated that appellant’s rental income from a property that he and his wife owned (8/10 Salada Avenue
in Pacifica, CA) was considered passive income and was not deemed earnings under FECA.

4

In a December 30, 2010 letter, OWCP advised appellant of its preliminary finding that he
received a $659,755.65 overpayment of compensation because he forfeited his compensation for
periods between May 7, 1993 and August 16, 2010.7 It also preliminarily found that appellant
was at fault in creating the overpayment, thereby precluding waiver of recovery of the
overpayment. OWCP indicated that the CA-1032 forms completed by appellant clearly advised
him of the type of employment activities and earnings that needed to be reported. It asked that
appellant return a completed financial information questionnaire (Form OWCP-20).
Appellant completed a Form OWCP-20 on May 4, 2011 in which he challenged OWCP’s
overpayment findings and asserted that he did not fail to report his employment. He indicated
that he reported rental income from 1994 to 2002 but was advised by OWCP that he did not have
to report such income. Appellant listed figures for monthly income, monthly expenses and assets
and submitted documents further detailing his monthly expenses.
Appellant requested a hearing with an OWCP hearing representative in connection with
OWCP’s wage-earning capacity, forfeiture and overpayment findings. At the April 27, 2011
hearing, he testified that in 1982 he moved to an apartment at 15 Santa Maria Avenue in
Pacifica, CA, a building which was owned by his father.8 Appellant stated that he recalled
telling Nurse Hartlaub in 1994 that his father owned the building at 15 Santa Maria Avenue and
that he managed the building for his father. He indicated that between 1994 and 2002 he
reported his rental income from 8/10 Salada Avenue in Pacifica, CA, on CA-1032 forms that
OWCP directed him to complete, but that he stopped reporting this income after OWCP told him
he did not need to report it.9 Appellant stated that Nurse Hartlaub did not tell him that he should
report income that he received from managing the building at 15 Santa Maria Avenue.
Appellant’s counsel testified at the hearing and asserted that appellant did not attempt to hide any
employment activities. Appellant indicated that Nurse Hartlaub was aware of his activities in
1994 and stated that OWCP told him in 2002 that his reporting on the CA-1032 forms was
proper. Counsel argued that appellant’s activities regarding 15 Santa Maria Avenue were
minimal and asserted that his rent-free status was not due to these activities.10
In a July 25, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
December 21, 2010 decision regarding appellant’s wage-earning capacity.
In another July 25, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
December 29, 2010 decision regarding the forfeiture of compensation.

7

The record contains payment records and worksheets showing that appellant received $659,755.65 in
compensation for the periods May 7, 1993 to August 3, 1996, September 23, 1997 to September 26, 2000 and
January 1, 2001 to August 16, 2010.
8

Appellant testified that the building contained five apartments, including the one in which he lived.

9

Appellant stated that he thought he talked to someone at OWCP about reporting his management at 15 Santa
Maria Avenue but he was told that he did not have to report it because he did not receive a salary.
10

Counsel submitted an April 26, 2011 memorandum which contained similar arguments.

5

In another July 25, 2011 decision, OWCP’s hearing representative found that appellant
received a $659,755.65 overpayment of compensation and that he was at fault in the creation of
the overpayment, thereby precluding waiver of recovery of the overpayment.
In a July 28, 2011 decision, OWCP affirmed its July 25, 2011 decision regarding
appellant’s overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA11 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings; forfeits his
right to compensation with respect to any period for which the affidavit or
report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation
payable to the employee or otherwise recovered under section 8129 of this
title, unless recovery is waived under that section.”12
An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
“knowingly” omitted or understated earnings. It is not enough to merely establish that there
were unreported earnings. OWCP procedure manual recognizes that forfeiture is a penalty,13
and, as a penalty provision, it must be narrowly construed.14 In OWCP’s regulations,
“knowingly” is defined as: “with knowledge, consciously, willfully or intentionally.”15 To meet
this burden, OWCP is required to examine closely appellant’s activities and statements. OWCP
may meet this burden without an admission by an employee if the circumstances of the case
establish that he failed to reveal fully and truthfully the full extent of his employment activities
and earnings.16

11

5 U.S.C. § 8106(b).

12

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether he received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260.
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

14

See Christine P. Burgess, 43 ECAB 449, 458 (1992).

15

20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268, 271-73 (1992).

16

Terry A. Geer, 51 ECAB 168 (1999).

6

Section 10.5(g) of OWCP’s regulations define earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”17
The Board has distinguished between income received from investment and earnings
received by performing work. The former is not considered to be evidence of a claimant’s
ability to work and earn wages but rather is considered to be a return on investment. The latter is
considered to be wages if the source of income can be established to be the product of the
claimant’s work.18
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant forfeited his right to
compensation for periods between May 7, 1993 and August 16, 2010. The record establishes
that appellant knowingly omitted employment activities and earnings on CA-1032 forms
completed for periods between May 7, 1993 and August 16, 2010. In these forms, OWCP
notified appellant of his responsibility to complete the forms and provide relevant information
concerning his employment status and earnings during the periods covered by the forms. The
record reveals that appellant had employment and earnings during the periods covered by these
forms in that he was employed as an apartment manager and had earnings from this employment.
However, appellant did not report such employment activities and earnings on the forms
submitted to OWCP.
The evidence shows that, since moving into a building owned by his father no later than
January 1983,19 appellant worked as an apartment manager for his father with respect to that
building. In an investigative interview conducted by the NCIS, appellant acknowledged that,
with respect to the apartments in the building owned by his father, he performed activities that
could be characterized as the activities of an apartment manager. He acknowledged that he
placed advertisements of empty apartments in newspapers and online, placed signs outside to
attract potential renters, answered telephone calls from prospective renters and signed his name
to inventory checklists and rental agreements. Appellant also acknowledged that at times he
17

20 C.F.R. § 10.5(g); see Monroe E. Hartzog, 40 ECAB 322, 329 (1988).

18

Anthony V. Knox, 50 ECAB 402 (1999); Burnett Terry, 46 ECAB 457 (1995).

19

The five-apartment building was located at 15 Santa Maria Avenue in Pacifica, CA. Appellant lived in one
apartment and the other four apartments were rented. Appellant owned a duplex building with his wife at 8/10
Salada Avenue in Pacifica, CA. OWCP found that appellant was not required to report earnings from this building
to OWCP as it constituted a passive investment. See supra note 18.

7

collected rent payments, deposited rent payments in his father’s bank accounts, performed
repairs on rental apartments and arranged for workmen to make repairs on rental apartments.
Appellant’s activities as an apartment manager for the periods between May 7, 1993 and
August 16, 2010 covered by the CA-1032 forms were also documented by investigative
interviews with appellant’s father and a renter at 15 Santa Maria Avenue.20
Although appellant was not paid a salary for his employment activities, he received
earnings in the form of free rent for the apartment he lived in which was owned by his father.21
The CA-1032 forms signed by appellant used such terms as “business,” “enterprise,” and
“service” to explain the obligation for reporting all forms of employment, self-employment and
earnings.22 The explicit language of the CA-1032 forms clearly advised appellant that the nature
of his work as an apartment manager would require him to report such employment activities on
the forms. Appellant’s signing of strongly-worded certification clauses on the CA-1032 forms
further shows that he was aware of materiality of his failure to report his employment.
Before OWCP and on appeal, appellant and his counsel indicated that between 1994 and
2002 appellant reported his rental income from 8/10 Salada Avenue on the CA-1032 forms that
OWCP directed him to complete, but that he stopped reporting this income after OWCP told him
he did not need to report it. Appellant suggested that this circumstance absolved him of the need
to report his activities with respect to his father’s building at 15 Santa Maria Avenue. As
previously noted, appellant and his wife owned the building at 8/10 Salada Avenue and he would
not have been required to report the income from this passive investment. Appellant did not
explain his apparent belief that not needing to report his income related to 8/10 Salada Avenue
meant that he did not have to report his income related to 15 Santa Maria Avenue. He also
suggested that because Nurse Hartlaub knew of his apartment manager activities in 1994, he did
not have a responsibility to report these activities on his CA-1032 forms. Appellant did not
provide any support for this erroneous belief.
Under these circumstances, the Board concludes that appellant “knowingly” omitted his
earnings under section 8106(b)(2) of FECA by failing to report his employment activities and
earnings as an apartment manager on the applicable CA-1032 forms for the relevant periods
between May 7, 1993 and August 16, 2010.23 Accordingly, the Board finds that OWCP properly
20

Moreover, appellant acknowledged in an April 27, 2011 hearing with an OWCP hearing representative that in
1994 he had told Nurse Hartlaub, who was assigned to his case by OWCP, that he worked as an apartment manager
for his father. In a December 31, 1994 report, Nurse Hartlaub stated that appellant reported in November 1994 that
he lived in an apartment building owned by his father and that “he manages the building for his father.”
21

See Christine P. Burgess, supra note 14. Appellant later alleged that the fact that he lived in his father’s
apartment on a rent-free basis was not due to his work activities for his father. However, appellant’s own testimony
and other evidence of record shows that he received free rent due to his management of his father’s building.
22

The CA-1032 forms instructed appellant to report all employment for which he received a salary, wages,
income, sales commissions, piecework or payment of any kind. Appellant was directed to report all selfemployment or involvement in business enterprises, including (but not limited to) operating a business, and
providing services in exchange for money, goods or other services. The kinds of services that appellant was
required to report included such activities as carpentry, mechanical work, painting, contracting, keeping books and
records, odd jobs, and managing and overseeing a business of any kind, including a family business.
23

See generally Lewis George, 45 ECAB 144 (1993).

8

determined that appellant forfeited his right to compensation for the periods May 7, 1993 to
August 3, 1996, September 23, 1997 to September 26, 2000 and January 1, 2001 to
August 16, 2010.
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.24 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.”25
ANALYSIS -- ISSUE 2
The Board finds that appellant received a $659,755.65 overpayment of compensation.
For the reasons explained above, appellant forfeited his compensation for the periods May 7,
1993 to August 3, 1996, September 23, 1997 to September 26, 2000 and January 1, 2001 to
August 16, 2010. The evidence of record includes payment documents and worksheets which
show that he received $659,755.65 in compensation during these periods. Due to the forfeiture
of compensation, appellant would not be entitled to this compensation and, therefore, he received
a $659,755.65 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.26 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.”27 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.28

24

5 U.S.C. § 8102(a).

25

Id. at § 8129(a).

26

Id. at § 8129(a).

27

Id. at § 8129(b).

28

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

9

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 provide 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….”29
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.”30
ANALYSIS -- ISSUE 3
In the present case, appellant was at fault in the creation of the $659,755.65 overpayment
of compensation because he failed to provide information which he knew or should have known
to be material on CA-1032 forms covering periods between May 7, 1993 and August 16, 2010.31
As discussed in the forfeiture portion of this decision, appellant had employment and earnings
during the periods covered by these forms in that he was employed as an apartment manager and
had earnings from this employment, but he did not report such employment activities and
earnings on the forms submitted to OWCP. The explicit language of the CA-1032 forms clearly
show that appellant knew or should have known that the nature of his work as an apartment
manager would require him to report such employment activities on the forms and appellant’s
signing of strongly-worded certification clauses on the CA-1032 forms further shows that he was
aware of the materiality of his failure to report his employment. Because appellant was at fault
in the creation of the overpayment, OWCP properly determined that he was not entitled to
waiver of recovery of the overpayment.32

29

20 C.F.R. § 10.433(a).

30

Id. at § 10.433(c).

31

See supra note 29.

32

See supra notes 27 and 28.

10

LEGAL PRECEDENT -- ISSUE 4
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.33 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.34
Section 8115(a) of FECA provides that the “wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.”35 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”36
Wage-earning capacity may not be based on an odd-lot or make-shift position designed
for an employee’s particular needs or a position that is seasonal in an area where year-round
employment is available.37 OWCP procedures direct that a wage-earning capacity determination
based on actual wages be made following 60 days of employment.38
ANALYSIS -- ISSUE 4
In determining appellant’s wage-earning capacity, OWCP properly found that he had
received actual earnings as an apartment manager for more than 60 days in that he had been
working in the position since at least January 1983 when OWCP issued its December 21, 2010
wage-earning capacity decision.39 It also properly found that appellant’s actual wages fairly and
reasonably represented his wage-earning capacity.40 The record does not establish that the
apartment manager position was a make-shift position designed for appellant’s particular
33

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

34

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

35

5 U.S.C. § 8115(a).

36

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent an employee’s wage-earning capacity, OWCP applies
the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in the
employee’s compensation.
37

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment and Determining Wage-Earning Capacity, Chapter 2.814.7a(1), (2) (July 1997).
38

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.7c (December 1993).
39

Determining Wage-Earning

See supra note 38.

40

See supra notes 35 and 36. OWCP properly determined that appellant’s earnings as an apartment manager
were represented by the value of the rent-free apartment ($1,400.00 per month) he received for working in this
position. See supra note 17.

11

needs.41 For these reasons, OWCP properly found that appellant’s actual wages as an apartment
manager fairly and reasonably represented his wage-earning capacity.
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 forfeited his right to compensation for periods between
May 7, 1993 and August 16, 2010, that he received a $659,755.65 overpayment of compensation
and that he was at fault in the creation of the overpayment, thereby precluding waiver of
recovery of the overpayment. The Board further finds that OWCP properly reduced appellant’s
compensation effective December 21, 2010 based on its determination that his actual wages as
an apartment manager fairly and reasonably represented his wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the July 28 and 25, 2011 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: February 8, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

41

See supra note 37.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, MONTEREY PARK
POST OFFICE, Monterey Park, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Aykanush H. Galadzhyan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0367
Issued: September 22, 2020

Case Submitted on the Record

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

JURISDICTION
On December 5, 2019 appellant filed a timely appeal from a June 11, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 18, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On August 15, 2017 appellant, then a 37-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 6, 2017, he injured his hands, back, and neck
when the long-life vehicle (LLV) he was operating was struck by another vehicle while in the
performance of duty. He stopped work on that same day.
In an August 6, 2017 statement, appellant indicated that after he delivered his parcels and
while turning his LLV, his vehicle broke down, leaving him stuck in the middle of the road. He
noted that, while he was stuck in the middle of the road, another vehicle struck the side of his LLV,
which sprung across the street into a parked vehicle. Appellant explained that he called his
coworker and saw police and paramedics arriving at the scene. He further noted that the
paramedics had to use a tool to open his door and told him not to move while checking his vitals.
Appellant was told that he would be transported to a medical facility.
In a witness statement of even date, S.C., appellant’s supervisor, noted that she received a
call from her postmaster on that day notifying her that appellant was in a motor vehicle accident.
She indicated that when she arrived at the scene of the accident, she took pictures and spoke to
appellant’s coworker and a police officer who informed her that appellant had been transported to
a hospital emergency room. She noted that she then made several telephone calls, including to the
emergency room, to check on appellant, who notified her that he was okay, but felt a little dizzy
and in pain. S.C. further noted that, at approximately 3:45 p.m. that day, appellant walked into her
office. She noticed blood on the left side of his shirt towards the bottom and bandages on two or
three fingers on each hand. S.C. asked appellant to write a statement of what happened. She
indicated that she had to help him finish his statement due to his injuries and noticed that he could
barely get out of the chair he was sitting in. Appellant informed her that the hospital gave him a
pain medication prescription and indicated that he could drive home.
In an August 7, 2017 report, Dr. Nathan Hashimoto, Board-certified in hospice care and
palliative medicine, noted that appellant was involved in a motor vehicle accident and diagnosed
strains and contusions of neck, left shoulder, left wrist, and left finger.
In a medical report of even date, Dr. Mark M. Kosker, a chiropractor, noted that appellant
sustained injuries to his neck, back, shoulders, left knee, and left wrist due to the motor vehicle
accident on August 6, 2017. He advised that appellant should remain off work until August 21,
2017 or after his reexamination.
In an August 21, 2017 development letter, OWCP informed appellant of the deficiencies
of his claim. It specifically noted that it had received evidence from a chiropractor, but that under
FECA a “physician” included a chiropractor only if there was a diagnosed spinal subluxation and
it was demonstrated by x-ray evidence to exist. OWCP afforded him 30 days to submit the
necessary medical evidence.
2

In August 21 and September 6, 2017 medical reports, Dr. Kosker advised appellant to
remain off work until September 21, 2017.
Appellant also submitted a continuation of pay nurse report dated August 22, 2017,
indicating that he was to remain off work because of cervical and lumbar conditions.
In a September 20, 2017 work status report, Dr. Stepan Kasimian, a Board-certified
orthopedic surgeon, noted that appellant was under his care and placed him on temporary total
disability status until October 4, 2017.
By decision dated September 29, 2017, OWCP denied appellant’s claim finding that,
although appellant had established that the August 6, 2017 incident occurred in the performance
of duty, as alleged, he had not established a medical diagnosis in connection with the accepted
August 6, 2017 employment incident. Consequently, it found that the requirements had not been
met to establish an injury as defined by FECA.
On October 27, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. Counsel asserted that, while appellant
had received the September 29, 2017 decision, he had not received the August 21, 2017
development letter referenced in the decision. Counsel also noted that further documentation
would be provided.
In a November 3, 2017 form report, Dr. Kosker noted that appellant suffered from frequent
spasm, stiffness, and decreased muscle strength resulting from the automobile collision that
occurred on August 6, 2017. He indicated that appellant was unable to perform any of his job
functions due to his conditions.
In work status reports dated October 16, 2017 through January 8, 2018, Dr. Kasimian
placed appellant on temporary total disability status until April 8, 2018.
During the hearing, held on March 7, 2018, counsel again asserted that appellant never
received the August 21, 2017 development letter. She noted that they would forward an
October 12, 2017 x-rays report showing a spinal subluxation. Appellant also denied prior injury
to his neck, hands, or back before the accepted August 6, 2017 employment incident. The hearing
representative held the record open for 30 days for the submission of additional evidence.
A September 5, 2017 lumbar spine magnetic resonance imaging (MRI) scan, interpreted
by Dr. Hosam Moustafa, a Board-certified radiologist, revealed bilateral osteoarthritis of the
apophyseal joints at the L4-5 and L5-S1 levels and lumbar degenerative changes. A cervical spine
MRI scan of even date revealed no remarkable findings.
In an October 12, 2017 x-ray report, Dr. Kosker diagnosed cervical subluxations at C1, C2,
C4, C5, C7, T1, and T2 and lumbar subluxations at L2, L3, L4, and L5.
In medical reports dated September 20, 2017 through January 8, 2018, Dr. Kasimian noted
his findings on examination and the treatments provided. He described appellant’s multiple pain
complaints. Dr. Kasimian noted that he was injured during the accepted August 6, 2017
employment incident. He diagnosed cervicalgia, lumbago, and right wrist internal derangement.

3

Dr. Kasimian indicated that appellant was going through chiropractic therapy for neck and low
back conditions.
In an April 7, 2018 work status report, Dr. Kasimian placed appellant on temporary total
disability status until June 7, 2018.
By decision dated May 18, 2018, the hearing representative affirmed OWCP’s
September 29, 2017 decision, as modified, finding that appellant had established diagnoses of
cervicalgia, lumbago, and internal derangement of the right wrist. However, the claim remained
denied because the medical evidence of record was insufficient to establish causal relationship
between the diagnosed medical conditions and the accepted August 6, 2017 employment incident.
OWCP subsequently received additional medical evidence. In work status reports dated
June 27 through September 8, 2018, Dr. Kasimian placed appellant on temporary total disability
status until December 1, 2018.
In work status reports dated January 5 and April 6, 2019, Dr. Lawrence Miller, Boardcertified in physical medicine and rehabilitation, noted that appellant was under his care and placed
him on temporary total disability status until June 6, 2019.
On May 21, 2019 appellant, through counsel, requested reconsideration of the May 18,
2018 decision.
In an April 29, 2019 medical report, Dr. Kasimian noted that appellant was first evaluated
on September 20, 2017 for an orthopedic spine evaluation following the accepted August 6, 2017
employment incident. He noted appellant’s complaints of pain in his neck with occasional
numbness and tingling radiating down his shoulder blade, trapezial region, arm, hand, and fingers
on the left side, as well as low back pain and tingling radiating down his buttocks, left hamstring,
and left leg. Dr. Kasimian diagnosed cervicalgia, lumbago, and right wrist internal derangement
and opined that to a reasonable degree of medical certainty, on a more probable than not basis, that
there was a direct causal relationship between appellant’s body movement in the August 6, 2017
collision and his current clinical presentation and symptoms. He concluded that the mechanism
of injury was consistent with the multiple impacts appellant sustained in the August 6, 2017
collision.
By decision dated June 11, 2019, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.4 The one-year period for requesting reconsideration begins
3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

4

on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.5 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).6 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.7
OWCP may not deny a request for reconsideration solely because the request was untimely
filed. When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error.8 OWCP
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP.9
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.10 The Board
notes that clear evidence of error is intended to represent a difficult standard.11 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.12 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.13 The Board will limit its focus to a review
of how the newly submitted evidence bears on the prior evidence of record.14 The Board makes
an independent determination as to whether a claimant has demonstrated clear evidence of error
on the part of OWCP.15

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

6

Id. at Chapter 2.1602.4(b) (February 2016).

7

See R.L., Docket No. 18-0496 (issued January 9, 2019).

8

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

9

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(a) (February 2016).

10

G.G., supra note 8.

11

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 7.

12

E.B., Docket No. 18-1091 (issued December 28, 2018).

13

J.W., Docket No. 18-0703 (issued November 14, 2018).

14

P.L., Docket No. 18-0813 (issued November 20, 2018); D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

15

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

5

ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
OWCP’s procedures provide that a request for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.16 The last merit decision was
OWCP’s May 18, 2018 decision. Appellant had one year from the date of that decision, i.e.,
Saturday, May 18, 2019, to request reconsideration. If the last day of the one-year time period
falls on a Saturday, Sunday, or a legal holiday, OWCP will consider a request to be timely filed if
it is received on the next business day.17 Appellant, therefore, had until Monday, May 20, 2019 to
timely request reconsideration. As his request for reconsideration was not received in iFECS until
May 21, 2019, more than one year after the issuance of the May 18, 2018 merit decision, it was
untimely filed. Consequently, he must demonstrate clear evidence of error by OWCP in its
May 18, 2018 decision.18
The Board further finds, however, that the evidence submitted in support of appellant’s
untimely request for reconsideration raises a substantial question as to the correctness of OWCP’s
May 18, 2018 merit decision and is sufficient to demonstrate clear evidence of error.
In his November 1, 2017 request for reconsideration, counsel argued that although
appellant had received a copy of the September 29, 2019 decision, OWCP failed to send a copy of
the September 29, 2017 decision and the August 21, 2017 development letter to him. OWCP’s
regulations and Board case law require OWCP to send a copy of its decisions to the employee’s
last known address and to the authorized representative.19 The Board has held that decisions under
FECA20 are not properly issued unless both appellant and the authorized representative have been
sent copies of the decision.21 As OWCP did not send a copy of its September 29, 2017 decision
or August 21, 2017 development letter to appellant’s authorized representative, the Board
16

Supra note 8 at § 10.607(b).

17

See supra note 5 at Chapter 2.1602.4 (February 2016); see also C.W., Docket No. 17-0836 (issued
August 7, 2017).
18
Supra note 8; R.K., Docket No. 19-1474 (issued March 3, 2020); S.M., Docket No. 16-0270 (issued
April 26, 2016).
19
20 C.F.R. § 10.127 provides: A copy of the decision shall be mailed to the employee’s last known address. If
the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the
representative. See M.R., Order Remanding Case, Docket No. 11-0632 (issued September 28, 2011) (the Board found
that OWCP did not properly issue its decision where it did not send a copy of that decision to appellant’s authorized
representative); George R. Bryant, Docket No. 03-2241 (issued April 19, 2005) (the Board found that OWCP did not
properly issue its June 18, 2003 decision when it did not send a copy of that decision to the authorized representative
on that date. The Director of OWCP conceded a procedural error and advised that a merit review would be conducted
on remand to preserve the claimant s appeal rights). Cf. R.W., Docket No. 15-1886 (issued February 4, 2016) (where
the Board set aside OWCP’s hearing abandonment decision and remanded the case as it did not serve the notice of
hearing on appellant s authorized representative).
20

Supra note 2.

21

M.B., Docket No. 16-1302 (issued March 7, 2017).

6

concludes that neither the initial development letter nor the initial decision were properly issued.
Therefore, the Board finds that appellant has demonstrated clear evidence of error.
Accordingly, the Board finds that OWCP improperly denied appellant’s request for
reconsideration as he has demonstrated clear evidence of error in this case. The Board will set
aside the decision and remand the case for an appropriate decision on the merits of his claim.22
CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error in OWCP’s
May 18, 2018 merit decision and thus, it improperly denied his request for reconsideration of the
merits of his claim.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: September 22, 2020
Washington, DC

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

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

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

22
On remand OWCP should consider whether the evidence supports that appellant sustained visible hand injuries
causally related to the accepted August 6, 2017 employment incident in accordance with the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a) (June 2011).

7


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

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Docket No. 13-295
Issued: April 17, 2013

Case Submitted on the Record

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

On November 20, 2012 appellant filed an application for review of the Office of
Workers’ Compensation Programs’ (OWCP) decision dated October 25, 2012 that denied
appellant’s claim for a traumatic injury. The appeal was docketed as 13-295.
In this case, appellant filed a traumatic injury claim on September 25, 2012. The Board
notes that, prior to the October 25, 2012 decision, OWCP informed appellant on October 3, 2012
that the evidence submitted was insufficient to establish his claim. OWCP advised him of the
type of factual and medical evidence needed to establish his claim and requested that he submit
such evidence, particularly requesting that he submit a physician’s reasoned opinion addressing
the relationship of his claimed condition and specific employment factors. It advised appellant
that his case would be held open for 30 days to submit the requested information.
The Board finds that OWCP did not follow its regulations which requires that OWCP
advise appellant of the additional evidence needed to support his claim and allow 30 days in
which to submit such evidence. In this instance, OWCP issued a decision denying appellant’s
claim on October 25, 2012, prior to the end of the 30-day period.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. Section 10.121 of OWCP’s regulation, states that, if a claimant submits factual
evidence, medical evidence, or both in support of his or her claim, but OWCP determines that

this evidence is not sufficient to meet the burden of proof, OWCP will inform the claimant of the
additional evidence needed and provide the claimant at least 30 days to submit the evidence
required.1 Proceedings under the Federal Employees’ Compensation Act2 (FECA) are not
adversarial in nature. OWCP shares responsibility in the development of the evidence and has an
obligation to see that justice is done.3 The nonadversarial policy of proceedings under FECA is
reflected in OWCP’s regulations at section 10.121.4
As the 30-day period for submission of additional evidence had not expired at the time it
issued its decision denying appellant’s claim, the Board finds that OWCP did not fulfill its
responsibility under section 10.121 of its regulations.5
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 25, 2012 be set aside. The case is remanded to OWCP
for further action consistent with this order.
Issued: April 17, 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
1

20 C.F.R. § 10.121.

2

5 U.S.C. §§ 8101-8193.

3

William B. Webb, 56 ECAB 156 (2004).

4

Id.

5

On December 6, 2012 OWCP issued a decision vacating the October 25, 2012 decision. However, this decision
is null and void as the Board and OWCP may not simultaneously have jurisdiction over the same case. OWCP may
not issue a decision regarding the same issue on appeal before the Board. See Arlonia B. Taylor, 44 ECAB
591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
NATIONAL GUARD BUREAU, Mansfield, OH,
Employer
__________________________________________

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

Docket No. 17-0058
Issued: August 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 14, 2016 appellant filed a timely appeal of a September 27, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$3,868.45 for the period December 1, 2011 through February 8, 2014; (2) whether appellant was
at fault in the creation of the overpayment such that it is not subject to waiver; and (3) whether
OWCP properly determined that it would recover the overpayment by deducting $300.00 from
appellant’s continuing compensation benefits beginning October 16, 2016.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 12, 1991 appellant, then a 45-year-old aircraft pneudraulic systems mechanic,
injured his back while installing a brake assembly on an aircraft. OWCP accepted his claim for
lumbosacral strain. It authorized compensation benefits on September 12, 1991. On October 29,
1991 OWCP entered appellant on the periodic compensation rolls. The accompanying Form
EN1049 provided, “You must also report any retirement income, disability income, or
compensation benefits from any federal agency. This is because a recipient of compensation
benefits under [FECA] is not permitted to receive benefits under certain other federal programs,
including the Civil Service retirement program.” A Form EN1049 also advised, “If you are
receiving or have filed for [Social Security Administration (SSA)] disability benefits, please
contact your local [SSA] office about this award. On October 31, 1991 appellant certified that he
had read and understood the terms and conditions under which he could receive compensation.
Appellant returned to part-time work in the private sector on July 18, 1994. OWCP
reduced his compensation benefits based on his actual earnings on August 4, 1994. Appellant
stopped work in January 1996. On April 24, 2002 OWCP accepted that appellant sustained a
recurrence of disability on November 19, 2001. It reduced appellant’s wage-loss compensation
in a March 18, 2004 decision. OWCP’s Branch of Hearings and Review set aside the March 18,
2004 decision on October 18, 2004 and reinstated compensation.2
In a letter dated April 6, 2010, the employing establishment informed OWCP that
appellant was receiving SSA benefits. It noted that he was a Federal Employees Retirement
System (FERS) employee and requested that OWCP verify the amount of his SSA benefits so
that he would not receive an overpayment.
OWCP requested additional information from appellant regarding his SSA benefits on
April 15, 2010. Appellant responded on April 23, 2010 and indicated that he was receiving SSA
benefits, specifically Social Security Disability Insurance (SSDI) benefits beginning in
January 1992. He indicated that he did not receive a regular retirement check, or a disability
retirement check, but that he received a monthly military retirement check.
Appellant completed a Form EN1032 on December 12, 2011 and indicated that he had
received a military retirement check. He indicated that he was unclear how to respond to
whether he had received a regular retirement check. Appellant answered “no” to the question of
whether he received benefits from SSA as part of an annuity for federal service.
On June 13, 2011 OWCP accepted the additional conditions of aggravation of
degenerative disc disease at L4-5 and L5-S1 and aggravation of herniated bulging disc at L4-5.
On July 18, 2011 it also accepted major depressive disorder and panic disorder with agoraphobia.
On January 11, 2012 OWCP updated appellant’s accepted conditions to include post-traumatic
stress disorder.

2

On December 12, 2008 appellant appealed to the Board. However, the Board found that there was no OWCP
decision over which it had jurisdiction. On August 21, 2009 the Board dismissed the appeal. Docket No. 09-0505
(issued August 21, 2009).

2

OWCP requested information from SSA on April 20, 2012 regarding dual benefits. On
July 16, 2012 appellant indicated that he was eligible for FERS retirement, but could not receive
these benefits as he was receiving FECA benefits. He indicated that he was receiving benefits
from the SSA and provided his monthly SSA benefits.
Appellant completed a Form EN1032 on December 14, 2012 and indicated that he was
not receiving benefits from SSA as part of an annuity for federal service. He completed a Form
EN1032 on December 12, 2013 and also indicated that he was not receiving benefits from SSA
as part of an annuity for federal service.
On January 21 and 23, 2014 SSA provided OWCP with two calculations of appellant’s
SSA benefits. On the first form dated January 13, 2014 the handwritten figures indicate that the
SSA with FERS rate was $1,481.20 and without FERS the SSA rate was $1,264.00 beginning
December 2011. Beginning December 2012 the SSA rate with FERS was $1,506.30 and without
FERS the SSA rate was $1,285.50. Beginning December 2013 the SSA rate with FERS was
$1,528.80 and without FERS $1,304.70.
On the second form, dated January 15, 2014, the handwritten figures indicate that the
December 2011 SSA rate with FERS remained $1,481.20 while without FERS the SSA rate was
listed as $1,272.90. The second form indicated that the December 2012 SSA rate with FERS
remained $1,506.30, while the SSA rate without FERS was listed as $1,294.50. The second
form also indicated that the December 2013 SSA rate with FERS was $1,528.50 and the SSA
rate without FERS was $1,313.90.
OWCP informed SSA on March 14, 2014 of the receipt of two calculation forms with
varying sums and requested a correct calculation. On March 26, 2014 appellant informed
OWCP that the benefit amounts provided by SSA to OWCP were different than the amounts
which appeared on his benefits statements for the periods in question. OWCP contacted SSA by
telephone and was instructed that the January 15, 2014 form was correct. It notified appellant on
April 3, 2014.
OWCP calculated appellant’s overpayment based on the SSA offset for FERS and found
that appellant received an overpayment in the amount of $5,557.84.
On July 30, 2014 OWCP made a preliminary determination that appellant received a
$5,532.37 overpayment of compensation because he was receiving SSA benefits while receiving
FECA benefits. It made the preliminary determination that appellant was at fault in the creation
of the overpayment because “you were receiving dual benefits which you know or should have
known constitutes dual benefits under FECA.”
Appellant requested a prerecoupment hearing with OWCP’s Branch of Hearings and
Review on August 19, 2014 on the issues of fault and possible waiver. He disagreed that an
overpayment occurred, with the amount of the overpayment, and with the finding of fault.
Appellant completed an overpayment recovery questionnaire (OWCP-20) on August 18, 2014.
He alleged that he was not informed of the conditions under which he could receive SSA and
FECA benefits.

3

On December 12, 2014 appellant completed a Form EN1032 and indicated that he had
not received benefits from SSA as part of an annuity for federal service.
Appellant testified at the oral hearing before an OWCP hearing representative on
March 24, 2015. On March 25, 2015 OWCP’s hearing representative requested that appellant
complete an additional Form OWCP-20. Appellant completed the additional form on
April 6, 2015.
By decision dated June 9, 2015, OWCP’s hearing representative set aside the July 30,
2014 preliminary overpayment finding. She found that, due to the discrepancies in the
information provided by SSA, OWCP must request written clarification of appellant’s actual
entitlement. Following this, the hearing representative directed that OWCP provide appellant
with a new preliminary overpayment determination.
OWCP requested clarification of appellant’s actual entitlement to SSA benefits on
October 19 and December 7, 2015. On November 12, 2015 the SSA responded and provided a
third set of handwritten computations. These provided that during the period beginning
December 2011, appellant’s SSA rate with FERS was $1,481.20 and the SSA rate without FERS
was $1,336.20. For the period beginning December 2012, the SSA rate with FERS was
$1,506.30 and appellant’s SSA rate without FERS was $1,358.90. Beginning December 2013
appellant’s SSA rate with FERS was $1,528.80 and without FERS was $1,379.20. On
December 2014 the SSA rate with FERS was $1,554.70 and without FERS was $1,402.60. On
the bottom of the form was the handwritten note, “Conferred with technical expert. Rates above
are correct.”
OWCP calculated the overpayment from dual SSA and FERS benefits from December 1,
2011 through November 30, 2012 in the amount of $1,749.56 and from December 1, 2012
through November 30, 2013 in the amount of $1,773.66, and from December 1, 2013 through
February 8, 2014 in the amount of $345.23. OWCP totaled the three periods to reach an
overpayment of $3,868.45.
On December 16, 2015 OWCP revised the preliminary overpayment finding noting that
appellant received a $3,868.45 overpayment because he received SSA benefits as a FERS
employee while receiving FECA benefits. It found appellant at fault in creating the overpayment
because he knew or should have known that he was receiving dual benefits. OWCP informed
him of his appeal rights and asked that he complete an overpayment recovery questionnaire for
OWCP to consider questions of fault and waiver and to determine a reasonable method for
collection.
In a file memorandum dated February 8, 2016, OWCP determined that an overpayment
in the amount of $43.84 had been identified due to a cost-of-living increase to FERS benefits in
December 2014. It administratively terminated this overpayment.
By decision dated September 27, 2016, OWCP found that appellant had received an
overpayment in the amount of $3,868.45 for the period December 1, 2011 through February 8,
2014 for which he was at fault as he knew or should have known that he was not entitled to dual
benefits. It further noted that appellant had not contested the finding or submitted financial

4

information and that recovery of the overpayment would be made by withholding $300.00 from
appellant’s future compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits that are attributable to federal service and that, if an employee receives SSA
benefits based on federal service, his or her compensation benefits shall be reduced by the
amount of SSA benefits attributable to his or her federal service.3
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.4 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.5
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for a decision.
The record supports that appellant received FECA wage-loss compensation beginning on
September 12, 1991 and that he received SSA benefits beginning on December 1, 2011. The
portion of the SSA benefits appellant earned as a federal employee was part of his FERS
retirement package, and the receipt of benefits under FECA and federal retirement benefits
concurrently is a prohibited dual benefit.6 Appellant’s FECA compensation was not offset until
February 9, 2014.
The SSA notified OWCP of three possible SSA rates for appellant and their effective
dates. Given the discrepancy in the amounts provided by SSA on three different forms covering
the same benefit period, OWCP should have further developed the evidence by obtaining

3

5 U.S.C. § 8116(d). See G.T., Docket No. 15-1314 (issued September 9, 2016).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000(e)(2) (February 1995). OWCP does not require an election between FECA benefits and SSA
benefits except when they are attributable to the employee’s federal service. See B.R., Docket No. 16-0567 (issued
December 9, 2016); R.C., Docket No. 09-2131 (issued April 2, 2010).
5

FECA Bulletin No. 97-09 (issued February 3, 1997); E.C., Docket No. 14-1743 (issued December 4, 2014).

6

See P.G., Docket No. 13-0589 (issued July 9, 2013).

5

clarification from SSA as to appellant’s SSA rate with and without any offset from FERS.7 The
evidence upon which OWCP relies is simply one of three sheets with handwritten numbers.
OWCP selected the last set of numbers. However, there is no clear explanation as to what the
error was in the prior two sets of numbers or why the last set of numbers is correct. The only
explanation in the record is a handwritten note from the preparer of the last form: “Conferred
with technical expert. Rates above are correct.” The Board finds that this explanation is
insufficient to meet OWCP’s burden of proof to establish the appropriate SSA rate and the
amount of the overpayment. Without accurate information from SSA advising whether appellant
was in receipt of retirement benefits based in part on federal service and providing reliable
figures of his monthly benefits, the Board is unable to determine whether an overpayment exists
and the amount of any overpayment.8
The Board will therefore set aside the September 27, 2016 overpayment decision.9 On
remand OWCP shall request that SSA confirm that appellant received SSA retirement benefits
based in part on his federal service, resolve the conflicting FERS offset information provided,
and provide the effective dates to determine the fact and amount of overpayment.10
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation.

7

See E.H., Docket No. 16-1465 (issued December 19, 2016); K.G., Docket No. 16-0553 (issued June 21, 2016).

8

Id.

9

Id.; J.M., Docket No. 15-1604 (issued May 23, 2016).

10

Based on the Board’s disposition of whether appellant received an overpayment of compensation, it is
premature to address the issues of fault and recovery.

6

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this opinion of the Board.
Issued: August 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7