United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Washington, DC, Employer
__________________________________________

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

Docket No. 14-1742
Issued: April 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2014 appellant filed a timely appeal of a July 16, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,839.54 for the period October 9, 2011 through March 8, 2014, for which she was
not at fault; (2) whether she is entitled to waiver of recovery of the overpayment of
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 16, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

compensation; and (3) whether OWCP properly required repayment of the overpayment by
deducting $183.95 every 28 days from her continuing compensation benefits.
On appeal, appellant contends that she was not at fault in creating the overpayment.
FACTUAL HISTORY
OWCP accepted that appellant, then a 46-year-old criminal investigator, sustained a right
stress fracture of her tibia or fibula and right lateral epicondylitis during a training exercise in the
performance of duty. Appellant was placed on the periodic rolls and received appropriate
compensation benefits.
In a letter dated March 6, 2014, the Office of Personnel Management (OPM) advised
OWCP that appellant had elected Federal Employees’ Group Life Insurance (FEGLI) for basic
life insurance and optional life insurance, option B.
In an April 8, 2014 manual adjustment form, OWCP calculated the optional life
insurance premiums for the period October 9, 2011 through March 8, 2014, which resulted in an
overpayment of $1,839.54.
OWCP informed appellant in a preliminary determination dated April 14, 2014 that she
had received an overpayment of compensation in the amount of $1,839.54 because optional life
insurance premiums were not properly deducted from her compensation payments for the period
October 9, 2011 through March 8, 2014. It found that she was not at fault in the creation of the
overpayment. OWCP advised appellant of her right to request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing, if she objected to the
decision or requested waiver of the recovery of the overpayment. Appellant was advised to
complete an overpayment recovery questionnaire and submit supporting financial documents.
On May 5, 2014 appellant requested a telephone conference. She completed an
overpayment recovery questionnaire indicating that she had no monthly income and total
monthly expenses of $7,800.00. Appellant listed other funds totaling $100.00. She requested
waiver of recovery of the overpayment.
On July 14, 2014 OWCP conducted a telephone conference with appellant regarding her
overpayment of compensation.
By decision dated July 16, 2014, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $1,839.54 because
optional life insurance premiums were not properly deducted from her compensation payments
for the period October 9, 2011 through March 8, 2014. It found that she was not at fault in the
creation of the overpayment, but that she was not entitled to waiver of recovery as she had failed
to provide any supporting financial documentation, such as copies of income tax returns, bank
account statements, bills and canceled checks, pay slips, and any other records supporting the
income and expenses listed on her overpayment recovery questionnaire. OWCP noted that,
although appellant indicated on the overpayment recovery questionnaire that she had no monthly
income, she was in fact in receipt of $6,987.66 every 28 days. It directed recovery by deducting
$183.95 every 28 days from her continuing compensation benefits.
2

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.3 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.4
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.5 The coverage for basic life
insurance is effective unless waived6 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.7 When an underwithholding of life insurance premiums
occurs, the entire amount is deemed an overpayment because OWCP must pay the full premium
to OPM upon discovery of the error.8
ANALYSIS -- ISSUE 1
The record reflects that OPM notified OWCP of an underwithholding of optional life
insurance premiums for the period October 9, 2011 through March 8, 2014. OWCP calculated
the amount of the underwithholding and resulting overpayment to be $1,839.54. It further found
that appellant was not at fault in the creation of the resulting overpayment. The Board finds that
appellant received an overpayment of compensation in the amount of $1,839.54 for the period
October 9, 2011 through March 8, 2014, for which she was not at fault.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact or law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.9 The only exception to this requirement that an
overpayment must be recovered is set forth 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 FECA or would be against equity and good conscience.

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8702(a).

6

Id. at § 8702(b).

7

Id. at § 8707.

8

5 U.S.C. § 8707(d). See Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

9

Id. at § 8129(a).

3

Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations10 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery
needs substantially all of his or her current income, including compensation benefits, to meet
current ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual.11 An individual is deemed to need substantially all
of his or her current income to meet current ordinary and necessary living expenses if monthly
income does not exceed monthly expenses by more than $50.00. In other words, the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses (i.e., ordinary and necessary living expenses plus $50.00).12
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.13 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.14
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.15
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and considered whether she was entitled to waiver of recovery. Waiver is only possible if
recovery would defeat the purpose of FECA or would be against equity and good conscience. In
order to establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that she requires substantially all of her income to meet current, ordinary,

10

20 C.F.R. § 10.436.

11

Id. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).
12

Id.

13

20 C.F.R. § 10.437(b).

14

Federal (FECA) Procedure Manual, see supra note 11 at Chapter 6.200.6.b(3) (June 2009).

15

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

4

and necessary living expenses and that her assets do not exceed the established limit as
determined by OWCP procedures.16
Appellant provided an overpayment recovery questionnaire indicating that she had no
monthly income and listed other funds totaling $100.00, but the record reveals that she receives
of compensation in the amount of $6,987.66 every 28 days. She listed total monthly expenses of
$7,800.00. However, appellant did not provide any supporting documentation. The evidence of
record does not demonstrate that repayment of the overpayment would be against equity and
good conscience. Moreover, appellant submitted no evidence or argument that she relied upon
the incorrect payments to her detriment or that she would experience severe financial hardship
attempting to repay the debt. Thus, the Board finds that appellant is not entitled to waiver of
recovery of the overpayment of compensation as she has not established that recovery would
either be against equity and good conscience or defeat the purpose of FECA.
On appeal appellant contends that she was not at fault in creating the overpayment. The
fact that a claimant is without fault in creating an overpayment does not preclude OWCP from
recovering all or part of the overpayment.17 Therefore, the Board finds that appellant’s argument
is not substantiated.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of OWCP’s regulations provide that when an overpayment has been made to an
individual who is entitled to further payments, the individual shall refund to OWCP the amount
of the overpayment as soon as the error is discovered or his or her attention is called to same.18
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation benefits by $183.95 per month taking
into account the amount of the compensation and the financial circumstances of appellant to
minimize hardship, as well as the factors set forth in section 10.441 of OWCP’s regulations. It
found that this method of recovery would minimize any resulting hardship on her. The Board
finds that OWCP properly required repayment of the overpayment of compensation by deducting
$183.95 every 28 days from her continuing compensation benefits.

16

Id. at § 10.436.

17

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

18

20 C.F.R. § 10.441.

19

Id.

5

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,839.54 for the period October 9, 2011 through March 8, 2014, for which she was not at
fault. The Board further finds that appellant is not entitled to waiver of recovery of the
overpayment of compensation and that OWCP properly required repayment of the overpayment
by deducting $183.95 every 28 days from her continuing compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY,
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TRANSPORTATION SECURITY
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ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
N.C., Appellant

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

Docket No. 16-1152
Issued: October 19, 2016

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 March 4, 2016 appellant filed a timely appeal from a September 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 10, 2015, the date of the decision on appeal, was
March 8, 2016. Since using March 10, 2016, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is March 4, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The record also contains a July 6, 2015 decision finding that appellant received an overpayment of
compensation. Appellant appealed the July 6, 2015 overpayment to the Board on January 4, 2016. The Board will
consider his appeal of the July 6, 2015 OWCP decision under Docket No. 16-0441.

ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his wage-earning capacity had he continued to participate in
vocational rehabilitation; and (2) whether OWCP properly modified its determination of his pay
rate for compensation purposes in its reduction of his compensation for failing to participate in
vocational rehabilitation.
FACTUAL HISTORY
On August 9, 2004 appellant, then a 50-year-old screener, filed a traumatic injury claim
(Form CA-1) alleging that on August 3, 2004 he strained a muscle in his shoulder and arm when
lifting a bag.
OWCP accepted the claim for right shoulder strain, cervical strain,
acromioclavicular joint arthritis, and tendinitis of the right shoulder, cervical discogenic disc
disease at C5-6, reflex sympathetic dystrophy of the right upper extremity, causalgia, and
psychogenic pain. It paid wage-loss compensation beginning September 21, 2004 using a dateof-injury pay rate. Appellant returned to modified employment on December 13, 2004 but
sustained a recurrence of disability on March 26, 2005.
On April 13, 2005 the employing establishment offered appellant a position as a modified
lead transportation security screener with an annual salary of $39,158.00 in the “F” Band. The
position required no lifting over 20 pounds or reaching above the right shoulder level. Appellant
accepted the position and returned to work on May 7, 2005.4
On September 4, 2005 appellant stopped work as the employing establishment no longer
had work available within his restrictions. OWCP paid him wage-loss compensation beginning
October 30, 2005.
OWCP referred appellant on February 21, 2006 for vocational rehabilitation. Appellant
underwent vocational testing on May 26, 2006. On October 13, 2006 OWCP closed vocational
rehabilitation services as the medical evidence of record established that appellant was totally
disabled.
In a report dated March 22, 2008, Dr. Joseph P. Conaty, an orthopedic surgeon and
OWCP referral physician, diagnosed degenerative disc disease with osteophytic spur formation
at C5-6 and C6-7 and a right shoulder strain/sprain with postinjury adhesive capsulitis. He found
that appellant could work with restrictions on the right arm or reaching up to two hours per day,
reaching over the shoulder for one hour per day, pushing and pulling up to 15 pounds for two
hours per day, and lifting up to 10 pounds for two hours per day. In a work restriction evaluation
dated May 16, 2008, Dr. Conaty found that appellant could push, pull, and lift up to 10 pounds
for 2 hours per day, reach up to 4 hours with the right arm, and reach above the shoulder with the
right arm up to 30 minutes.

4

By decision dated May 9, 2005, OWCP found that appellant received an overpayment of compensation in the
amount of $471.74 because he returned to work on December 17, 2004 but received compensation through
December 25, 2004. It found that he was at fault in creating the overpayment.

2

OWCP referred appellant to the rehabilitation counselor on June 5, 2008 for vocational
rehabilitation. The counselor contacted companies regarding positions in the areas of customer
service, dispatcher, and security guard. In a July 21, 2008 report, she recommended that OWCP
approve a direct placement plan for appellant in either customer service or as a security guard
and noted that he would need “40 hours of training to receive his security guard card.”
On August 25, 2008 OWCP requested that Dr. Nicole Pham-Bailey, an attending
physiatrist, and Dr. Conaty address whether appellant could work as a security guard or customer
service employee.
Dr. Conaty reevaluated appellant on September 15, 2008.
In a report dated
September 17, 2008, he reviewed the job descriptions for the positions of security guard and
customer service worker. Dr. Conaty found that appellant could work in customer service, but
would have difficulty performing the reaching required of a security guard due to his adhesive
capsulitis. He opined that appellant could perform the remaining duties of the security guard
position. Dr. Conaty advised that appellant could push, pull, and lift up to 10 pounds for 2 hours,
reaching for 2 hours, and reach above the right shoulder for 30 minutes.
On September 23, 2008 an OWCP rehabilitation specialist requested that the
rehabilitation counselor identify two positions that did not require extensive reaching and
handling.
The rehabilitation counselor contacted companies that had open positions in the areas of
surveillance system monitor and information clerk. She also completed job classifications for
the positions. The position of surveillance system monitor was classified as sedentary requiring
no lifting or reaching and the specific vocational rehabilitation required only a short
demonstration of 30 days. The rehabilitation counselor found that appellant met the preparation
because he had previously owned a business, had computer skills, and tested well. She also
determined that the position was reasonable available within his commuting area.
On October 13, 2008 the rehabilitation counselor recommended a plan for appellant to
receive training with a goal of returning to work as a surveillance monitor or information clerk.
She prepared a job search plan and agreement for his signature.
On October 14, 2008 Dr. Pham-Bailey related that she did not believe that appellant
could work light duty as a security guard but could perform sedentary work as a customer service
representative. She generally concurred with Dr. Conaty’s work restrictions. Dr. Pham-Bailey
advised that appellant could not lift, push, or pull over 10 pounds with the right arm for more
than 15 minutes an hour or reach above shoulder level with the right arm.
OWCP authorized appellant’s two-week training to receive his unarmed guard card.
Appellant, on October 22, 2008, notified OWCP that he would not refuse a job within his
restrictions if it was “equal to, in stature and pay, the job [he] had at [the employing
establishment] before” his injury. He asserted that he would not “be forced to accept anything
that would be an insult to my intelligence and my dignity.”

3

On October 23, 2008 the rehabilitation counselor advised that appellant returned
unsigned the forms regarding his rehabilitation plan that she sent by registered mail.
The rehabilitation counselor advised OWCP’s rehabilitation specialist that she met with
appellant on October 31, 2008 to discuss the rehabilitation plan and advised him of the date he
began his training. The specialist informed her that he would not proceed with vocational
rehabilitation until OWCP provided a response to his October 22, 2008 letter. Appellant also
refused to seek a job unless it was at his former salary.
By letter dated November 12, 2008, OWCP informed appellant that the rehabilitation
counselor indicated that he had refused to participate in the training program for the positions of
surveillance system monitor and information clerk. It advised him to contact OWCP to make
arrangements to participate in the training program or provide his reasons for refusing the
training in writing with supporting evidence. OWCP notified appellant that if he refused to
cooperate in the training without good cause his compensation would be reduced to reflect his
wage-earning capacity had he participated.
In a November 25, 2008 response, appellant related that he would not participate in
vocational rehabilitation as none of the physicians found that he had reached maximum medical
improvement. He contended that Dr. Conaty’s report was insufficient to show that he could
work. Appellant maintained that OWCP had to provide him with limited duty at the employing
establishment.
In a decision dated December 18, 2008, OWCP reduced appellant’s compensation under
5 U.S.C. § 8113(b) as he failed without good cause to participate in vocational rehabilitation. It
found that had he undergone vocational rehabilitation he would have had the capacity to perform
the duties of a surveillance system monitor. In applying the formula set forth in Albert C.
Shadrick,5 it used a pay rate date of September 4, 2005. Based on its calculations, OWCP found
that he was entitled to net compensation of $786.78 each four weeks.6
Appellant requested an oral hearing, which was held on November 5, 2009. In a
February 1, 2010 decision, OWCP’s hearing representative affirmed the December 18, 2008
decision. She found that appellant failed to show good cause for failing to participate in
vocational rehabilitation and thus OWCP properly reduced his compensation under section
8113(b). The hearing representative determined that the medical evidence of record was
sufficient to show that he was able to work within the restrictions of the position.
On January 29, 2010 Dr. Pham-Bailey related that appellant could perform sedentary
employment as a customer service employee with occasional lifting up to 10 pounds and
frequent reaching if he had an ergonomic work station but could not work as a security guard
occasionally handling up to 20 pounds with frequent reaching.7 She advised that she could not
5

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

6

By decision dated January 16, 2009, OWCP granted appellant a schedule award of 17 percent permanent
impairment of the right upper extremity.
7

The record contains progress reports dated 2008 to 2015 describing treatment rendered for conditions including
appellant’s right shoulder, neck, back, and right knee.

4

comment on other positions as she did not have a job description. Dr. Pham-Bailey found that
appellant could lift, push, and pull up to 10 pounds with the right arm for 15 minutes per hour
but perform no overhead reaching.
Appellant, on January 26, 2011, requested reconsideration. He maintained that he
cooperated with vocational rehabilitation and that his injury remained disabling. Appellant noted
that he had obtained disability retirement from the Social Security Administration (SSA). He
questioned why he required training when he had been working in the security field. Appellant
also challenged his pay rate.
By decision dated April 25, 2011, OWCP denied modification of the February 1, 2010
decision. It found that he had not demonstrated good cause for failing to cooperate with
vocational rehabilitation or that he was not medically able to participate in vocational
rehabilitation.
Appellant continued to provide medical evidence. On November 11, 2010 Dr. PhamBailey opined that appellant could not push, pull, or lift over 10 pounds with the right arm or
preform overhead work. She advised that the restrictions were permanent.
In a January 5, 2012 status report, Dr. John Norton, an occupational medicine specialist,
diagnosed thoracic outlet syndrome, reflex sympathetic dystrophy of the upper limb, and
myofascial pain syndrome. He found that appellant could perform modified duty.
On April 12, 2012 appellant again requested reconsideration. He maintained that a
physician reexamined him in July 2010 and found that his condition worsened. Appellant also
indicated that SSA found him totally disabled and that Dr. Pham-Bailey determined that he had
permanent work restrictions. He advised that the medical evidence did not show that he could
work as a security guard and that the training center only trained security guards. Appellant also
challenged his pay rate.
By decision dated August 13, 2012, OWCP denied modification of its April 25, 2011
decision. It noted that the work restrictions set forth by Dr. Pham-Bailey and Dr. Conaty were
within the physical duties required for the surveillance system monitor position. OWCP also
found that appellant had not indicated that he was going to cooperate with vocational
rehabilitation.
On July 23, 2013 Dr. Norton diagnosed complex regional pain syndrome, cervical disc
degeneration, and myofascial pain syndrome.
Appellant, on August 13, 2013, again requested reconsideration. He argued that he
should be paid at an “F” band rate as he was promoted on October 2, 2004. Appellant noted that
March 26, 2004 was the date of his recurrence of disability.
OWCP on May 20, 2014 notified appellant of its proposed modification of the
December 18, 2008 loss of wage-earning capacity determination. It found that it had
inaccurately calculated his September 4, 2005 weekly pay rate as it had not included eight hours
of Sunday premium pay and 25 hours of night shift differential. OWCP also determined that it

5

had not applied the formula applicable to performance based pay systems, or pay banding, prior
to calculating his pay rate.
In a decision dated June 20, 2014, OWCP modified its December 18, 2008 loss of wageearning capacity determination as it had incorrectly calculated his pay rate. It further determined
that appellant had not established a basis to alter its finding that he had failed without good cause
to undergo vocational rehabilitation. In another decision dated June 20, 2014, OWCP vacated in
part and denied modification in part the August 13, 2012 decision as it used an inaccurate pay
rate in its loss of wage-earning capacity determination.8
Appellant again requested reconsideration on June 19, 2015. He advised that he did not
refuse to attend security guard school, but instead the training facility did not teach courses in
surveillance system monitoring. Appellant spoke with an individual at the training center who
indicated that he could receive a guard card at the end of training. He argued that his pay rate
should be the higher rate he received when he returned to work in December 2004. Appellant
also maintained that his condition had worsened based on an April 14, 2005 magnetic resonance
imaging (MRI) scan and Dr. Norton’s July 2013 report finding that he was permanently disabled.
In a report dated July 27, 2015, Dr. Kasra Rowsha, a Board-certified orthopedic surgeon,
found that appellant had an eight percent permanent impairment due to a herniated disc.
By decision dated September 10, 2015, OWCP denied modification of its June 20, 2014
decision. It found that appellant had not demonstrated cooperation with vocational rehabilitation
such that it would remove the sanction of section 8113(b).
On appeal appellant asserts that OWCP did not address his allegation that the security
guard school did not teach the position of surveillance system monitor. He notes that Dr. PhamBailey and Dr. Conaty did not review whether he could work as a surveillance system monitor
and that physicians in March 29, 2013 and July 27, 2015 reports found that he had a permanent
impairment.
LEGAL PRECEDENT -- ISSUE 1
Section 8113(b) of FECA provides:
“If an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of FECA, OWCP, after finding
that in the absence of the failure the wage-earning capacity of the individual
would probably have substantially increased, may reduce prospectively the
monetary compensation of the individual in accordance with what would probably

8

In a decision dated June 20, 2014, OWCP also advised appellant of an overpayment of compensation and on
July 6, 2015, an OWCP hearing representative found that appellant had received an overpayment of compensation.
As noted, the Board will address this decision under a separate docket number. Supra note 3.

6

have been his wage-earning capacity in the absence of the failure, until the
individual in good faith complies with the direction of OWCP.”9
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
in, or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, OWCP will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. OWCP will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the OWCP nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the
direction of OWCP.”10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right shoulder strain, cervical strain,
acromioclavicular joint arthritis and tendinitis of the right shoulder, cervical discogenic disc
disease at C5-6, reflex sympathetic dystrophy of the right upper extremity, causalgia, and
psychogenic pain due to an August 3, 2004 employment injury. After sustaining periods of
disability, he stopped work on September 4, 2005 and did not return.
On March 22, 2008 Dr. Conaty found that appellant could work with limitations on the
right arm to reach no more than two hours per day and no more than one hour a day above the
shoulder, pushing and pulling up to 15 pounds for two hours per day, and lifting up to 10 pounds
for two hours per day. In a work restriction evaluation dated May 16, 2008, he found that
appellant could push, pull and lift up to 10 pounds for 2 hours per day and reaching above the
shoulder for 30 minutes.
Based on Dr. Conaty’s findings, OWCP referred appellant for vocational rehabilitation.
Initially the rehabilitation counsel identified the position of security guard as within his
limitations but both Dr. Conaty and Dr. Pham-Bailey, an attending physician, determined that he
could not perform the reaching required for the position of security guard. Both physicians
found, however, that appellant could perform sedentary employment and provided lifting
restrictions of up to 10 pounds. The rehabilitation counselor identified the sedentary position of
surveillance system worker as within his physical and vocational capabilities. She advised that
appellant required two weeks of training, which OWCP authorized. The rehabilitation counselor
prepared a job search plan and agreement for his signature.

9

5 U.S.C. § 8113(b); see also T.M., Docket No. 12-1614 (issued March 15, 2013).

10

20 C.F.R. § 10.519(a).

7

On October 22, 2008 appellant advised OWCP that he would not accept a job that paid
less or was not of equal status to his date-of-injury position. On October 23, 2008 the
rehabilitation counselor informed OWCP that he had returned the rehabilitation plan unsigned.
Appellant advised the rehabilitation counselor on October 31, 2008 that he would not cooperate
with vocational rehabilitation until OWCP responded to his October 22, 2008 letter and would
not look for a job of lesser salary that that of his prior position. The Board finds that his actions
establish that he failed to participate in vocational rehabilitation efforts.11
Prior to adjusting appellant’s compensation, OWCP advised him of the consequences of
his failure to participate in vocational rehabilitation and provided him 30 days to participate or
show good cause for his failure. Appellant did not, however, submit evidence showing good
cause for his failure to participate. He argued that he wanted a position at the same salary and
prestige as his previous position. The Board has held, however, that a claimant’s dislike for a
selected position does not constitute good cause for failing to participate in vocational
rehabilitation.12 Appellant also maintained that Dr. Conaty’s report was insufficient to show that
he could work as a surveillance system monitor. However, Dr. Conaty determined that he could
perform sedentary employment, such as that of a surveillance system monitor. The Board thus
finds that OWCP properly reduced appellant’s wage-earning capacity to reflect what he would
have earned had he cooperated with vocational rehabilitation.
The reduction based on appellant’s failure to cooperate remains in effect until he
complies in good faith with the direction of OWCP. Subsequent to the reduction, he submitted
medical evidence from Dr. Pham-Bailey and Dr. Norton. Neither physician, however, addressed
his ability to work at the time his compensation was reduced or provided work restrictions that
would preclude him from participating in vocational rehabilitation at the time of OWCP’s
reduction of his compensation.13
Further, on January 29 and November 11, 2010,
Dr. Pham-Bailey found that appellant could work occasionally lifting up to 10 pounds, which is
consistent with the physical requirements for the position of surveillance system monitor. On
January 5, 2012 Dr. Norton generally found that he could work in a modified position.
On appeal appellant contends that OWCP failed to discuss his allegation that the security
guard school did not teach the position of surveillance system monitor. The issue, however, is
not the merits of the training approved by OWCP for vocational rehabilitation but whether he
cooperated with the vocational rehabilitation effort or established good cause for his failure to
participate. Appellant refused to sign the rehabilitation plan and award prepared by his
vocational counselor in October 2008 because he wanted a job at the same pay and prestige as
his prior position. As noted, dislike for a position does not constitute an acceptable reason for
failing to participate with vocational rehabilitation.14

11

See S.M., Docket No. 15-1236 (issued February 18, 2016).

12

See B.A., Docket No. 11-0686 (issued October 14, 2011).

13

See generally D.A., Docket No. 14-0365 (issued June 16, 2014).

14

See supra note 12.

8

Appellant notes that Dr. Pham-Bailey and Dr. Conaty did not review whether he could
work as a surveillance system monitor. Both Dr. Pham-Bailey and Dr. Conaty, however, found
that he could perform sedentary employment lifting up to 10 pounds. The physical requirements
of a surveillance system monitor were within the restrictions set forth by the physicians.
Appellant further asserts that physicians in March 29, 2013 and July 27, 2015 reports
found that he had a permanent impairment. The issue, however, is cooperation with vocational
rehabilitation rather than whether he has a permanent impairment. Additionally, disability is not
synonymous with physical impairment, which may or may not result in incapacity to earn
wages.15
Appellant may request modification of the wage-earning capacity determination
supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
Section 8105(a) of FECA provides: If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.16 Section 8101(4) of
FECA defines monthly pay for purposes of computing compensation benefits as follows: [T]he
monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly
pay at the time compensable disability recurs, if the recurrence begins more than six months after
the injured employee resumes regular full-time employment with the United States, whichever is
greater.17
The formula for determining loss of wage-earning capacity has been codified at section
10.403(c)-(e) of OWCP’s regulations.18 Under the Shadrick formula, OWCP calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s actual
earnings (or constructed earnings) by the current or updated pay rate for the position held at the
time of injury.19 The employee’s wage-earning capacity in dollars is computed by first
multiplying the pay rate for compensation purposes, defined in 20 C.F.R. § 10.5(a) as the pay
rate at the time of injury, the time disability begins or the time disability recurs, whichever is
greater, by the percentage of wage-earning capacity. The resulting dollar amount is then
subtracted from the pay rate for compensation purposes to obtain loss of wage-earning
capacity.20 It has been administratively determined that certain pay elements will be included in

15

See Cheryl L. Decavitch, 50 ECAB 397 (1999).

16

5 U.S.C. § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
17

Id. at § 8101(4).

18

20 C.F.R. § 10.403(c)-(e).

19

Id. at § 10.403(c)-(d).

20

Id. at § 10.403(e).

9

computing an employee’s pay rate, including night or shift differential, Saturday premium,
Sunday premium, holiday and retention pay.21
ANALYSIS -- ISSUE 2
As discussed, OWCP reduced appellant’s compensation benefits under section 8113(b),
effective December 18, 2008, to reflect the amount that he could have earned as a surveillance
system monitor had he cooperated in vocational rehabilitation. It utilized a recurrent pay rate
date of September 4, 2005 in determining his wage-earning capacity using the Shadrick formula.
OWCP subsequently modified its December 18, 2008 decision after finding that it had
inaccurately calculated appellant’s pay rate for compensation purposes. It determined that it had
not included Sunday premium pay or night shift differential and had not applied the formula
applicable to performance-based pay systems. OWCP again used a recurrent pay rate date when
applying the Shadrick formula. Appellant, however, did not resume regular full-time
employment with the United States following his August 3, 2004 employment injury. Instead,
he returned to modified employment on December 13, 2004 and again on May 7, 2005 before his
September 4, 2005 work stoppage. The Board, therefore, finds that OWCP erroneously used
appellant’s pay at the time compensable disability recurred on September 4, 2005 in its loss of
wage-earning capacity determination as he had not returned to his regular employment following
his injury.22 Appellant’s date of injury is August 3, 2004 and the date disability began is
August 7, 2004. OWCP should use the pay rate that is the greater of these two days as the
applicable pay rate date. If the pay rate is the same, the pay rate should be set as the date
disability begins.23 It should also utilize the pay banding formula and include any applicable
Sunday premium pay and night differential.24 Accordingly the Board will set aside OWCP’s pay
rate determination and remand the case for a proper calculation of appellant’s compensation for
partial disability based on its reduction of his compensation for failure to participate in
vocational rehabilitation.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation for failure to
participate in vocational rehabilitation under 5 U.S.C. § 8113(b). The Board further finds that
OWCP erred in determining his pay rate for compensation purposes in its reduction of his
compensation benefits for failing to participate in vocational rehabilitation.

21

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.6b
(March 2011).
22

See G.G., Docket No. 13-0770 (issued July 9, 2013).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3)
(September 2011).
24

Id. at Chapter 2.900.6 (b) and 2.900.12(g) (September 2011).

10

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: October 19, 2016
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
CENTER, Kearny, NJ, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 10-779
Issued: July 9, 2010

Oral Argument May 13, 2010

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

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from a December 1, 2009 merit
decision of the Office of Workers’ Compensation Programs denying payment for medical bills.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly exercised its discretion in denying payment of
hospital bills from May 17 through 20, 2008.
At oral argument, appellant contended that her supervisor, who is now retired,
accompanied her to the hospital but never provided the appropriate billing paperwork. She also
argued that her claim was accepted and that the Office paid subsequent medical bills relating to
treatment.

FACTUAL HISTORY
The Office accepted that on May 17, 2008 appellant, then a 43-year-old mail carrier,
sustained a head laceration, contusion of the left shoulder and disorder of the bursae and tendons
of the left shoulder region after she passed out and fell down stairs while delivering mail.
In May 21 and July 5, 2008 statements, appellant claimed that on May 17, 2008 while
delivering mail on her route, she blacked out and woke up at the end of a walkway. All she
remembered was placing mail in a mailbox which was located at the top of five concrete steps.
Appellant woke up in a daze and with blood dripping over her. She called her supervisor,
Debbie Korczarowski, and explained what happened. Ms. Korczarowski checked on appellant
and recommended that she wash up. Appellant went to a nearby home, where a couple helped
her clean up. She attempted to continue delivering mail but eventually called another supervisor
and returned to the office. Appellant stated that second supervisor took her to the employing
establishment care center, where she was refused treatment because she had a head laceration
requiring sutures. She was transferred to Clara Maass Medical Center for treatment.
In a May 17, 2008 police report, Officer James Goral stated that he responded to First
Care on a report of an injured female. Appellant advised him that during her route that morning
she fell down the front steps of a residence and struck her head. She sustained a laceration and
contusion to the back of her head. Officer Goral reported that, after emergency medical services
conducted an on-scene evaluation of appellant, they transported her to Clara Maass Medical
Center.
Appellant submitted a series of diagnostic test results and treatment notes from Clara
Maass Medical Center dated May 17 through 20, 2008. According to the reports, she was
received by ambulance on May 17, 2008. Appellant had passed out at 1:45 p.m. while working
and fell down and hit her head, right knee and left ankle. She presented with left ankle swelling
and with an abrasion to the back of her head. The examining physician diagnosed syncope,
hypotension, scalp laceration and bradycardia on tenormin. On May 17, 2008 appellant’s head
laceration was closed with surgical staples and a Jones wrap was applied to her right knee. She
also underwent chest, left ankle and right knee x-rays and a CT head scan for syncope and
trauma on May 17, 2008. On May 18, 2008 appellant had x-rays of her left humerus and hip due
to a possibility of fractures. An echocardiogram and an electroencephalogram for syncope were
performed on May 19, 2008. Appellant was discharged on May 20, 2008.
By decision dated December 1, 2009, the Office denied payment for medical bills
incurred during appellant’s hospitalization at Clara Maass Medical Center from May 17
through 20, 2008. It stated that the billing code provided was for hypoglycemia, which was not
related to the accepted conditions. Further, the medical evidence did not show how the medical
treatment was related to the May 17, 2008 employment injury.

2

LEGAL PRECEDENT
Section 8103 of the Act1 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree or the period of disability or aid in lessening the amount of monthly
compensation.2 In interpreting this section of the Act, the Board has recognized that the Office
has broad discretion in approving services provided under section 8103, with the only limitation
on the Office’s authority being that of reasonableness.3 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.4 In order to be entitled to reimbursement for medical expenses, a claimant must
establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury.5
ANALYSIS
The Office accepted that appellant sustained a head laceration, contusion of the left
shoulder and disorder of the bursae and tendons of the left shoulder region due to the May 17,
2008 employment injury. The issue is whether it properly exercised its discretion in denying
payment for medical expenses incurred while appellant was hospitalized from May 17 through
20, 2008. The Board finds that the case is not in posture for decision.
Ordinarily, where an employee sustains a job-related injury which may require medical
treatment, the designated agency official shall promptly authorize such treatment by giving the
employee a properly executed CA-16 within four hours. However, in cases of an emergency or
cases involving unusual circumstances, the Office may, in the exercise of its discretion, authorize
treatment otherwise than by a Form CA-16, or it may approve payment for medical expenses
incurred other than by a Form CA-16.6
Appellant’s supervisor brought her to the employing establishment’s care center. She
was subsequently transported by ambulance to the Clara Maass Medical Center, where she was
admitted for several days and received treatment for a head laceration and underwent diagnostic
tests. This case is similar to Val D. Wynn,7 when the employee experienced weakness and chest
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8103. See Thomas W. Stevens, 50 ECAB 288 (1999).

3

James R. Bell, 52 ECAB 414 (2001).

4

Claudia L. Yantis, 48 ECAB 495 (1997).

5

Cathy B. Millin, 51 ECAB 331 (2000).

6

See 20 C.F.R. § 10.304; Thomas W. Keene, 42 ECAB 623 (1991).

7

40 ECAB 666 (1989).

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pain as a result of his employment and was transported from the employing establishment health
unit to a local community hospital. The Board affirmed the denial of the employee’s claim for
compensation due to the insufficiency of the medical evidence. However, it remanded the case
to the Office on the issue of whether the employee was entitled to reimbursement of medical
expenses due to emergency or other unusual circumstances.
The Office has not determined whether the facts in this case presented emergency or
unusual circumstances warranting payment of medical expenses.8 The Board finds the case is
not in posture for decision and will be remanded to the Office for further development of this
issue.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: July 9, 2010
Washington, DC

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

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

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

8

See also E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010) (where the Board affirmed the denial
of an employee’s claim for compensation but remanded the case for the Office to determine whether emergency or
unusual circumstances were present such that it should reimburse the employee’s medical expenses).

4


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

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

Docket No. 17-0818
Issued: May 14, 2018

Case Submitted on the Record

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

JURISDICTION
On February 27, 2017 appellant filed a timely appeal from an October 13, 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 over the merits of the claim.2
ISSUE
The issue is whether appellant has established total disability commencing July 9, 2016
causally related to her accepted December 23, 2015 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its October 13, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 23, 2015 appellant, then a 32-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she injured her left wrist, lower back, and
back of her right leg when she slipped while descending stairs while in the performance of duty.
She returned to limited-duty work with restrictions. OWCP accepted the claim for contusion of
lower back, pelvis and left thigh, as well as left wrist contracture. It paid appellant intermittent
wage-loss compensation on the supplemental rolls from March 7 to July 8, 2016. Appellant
stopped work completely July 9, 2016 and has not returned.
The medical evidence of record reflects that, on June 21, 2016, appellant’s treating
physician Dr. Adebayo Bademosi, a Board-certified family practitioner, related that appellant was
evaluated and released to return to work on June 23, 2016. In a report dated July 5, 2016,
Dr. Robert Strugala, a Board-certified orthopedic surgeon, noted appellant’s history of injury and
pain complaints. He related that appellant was currently working in a light-duty capacity, he did
not restrict appellant from continuing light-duty work.
On July 22, 2016 OWCP received a Form CA-7 claim for wage-loss compensation for
disability during the period July 9 through 22, 2016.
In an August 9, 2016 development letter, OWCP advised appellant that additional evidence
was needed to establish disability from work during the period claimed. It noted that the evidence
of record indicated that a light/limited-duty assignment was available within her medical
restrictions for the period claimed. OWCP also noted that her physician had indicated in a July 5,
2016 report that she was able to work light duty. It requested that appellant provide evidence to
support why she did not work the light/limited-duty assignment during the claimed period.
Appellant was afforded 30 days to submit the requested information.
In an August 11, 2016 telephone call, appellant advised OWCP that the employing
establishment did not have work available for her.
On August 16, 2016 OWCP received July 1, 2016 correspondence from the employing
establishment. This correspondence advised that appellant would be placed in an official leave
without pay (LWOP) status, effective July 2, 2016, per an October 27, 2015 Notice of Removal.
The October 27, 2015 Notice of Removal indicated that the removal action was being taken due
to appellant being absent without leave and failure to maintain regular attendance. Appellant
acknowledged receipt of the October 27, 2015 removal notice on November 2, 2015.
In an August 18, 2016 statement, appellant indicated that she had worked to the extent that
limited duty was available prior to being placed in LWOP status by the employing establishment.
She explained that she continued to submit Form CA-7 claims for compensation as she continued
to receive medical treatment for her work-related injury. Appellant submitted additional Form
CA-7’s, claiming wage-loss compensation after July 9, 2016.
In an August 16, 2016 report, Dr. Strugala diagnosed appellant with low back pain and
referred her to physical therapy. On September 6, 2016 he signed a September 2, 2016 physical

2

therapy note, which noted that appellant was off work on July 2, 2016. The report also indicated
that appellant’s rehabilitation potential/progress was good.
Copies of physical therapy notes dated September 9 and 12, 2016 were also received.
In September 14 and 15, 2016 reports, Dr. Strugala noted that appellant was currently off
work. He indicated that she restarted physical therapy for chronic low back pain following a fall
in December 2015. However, appellant’s back pain increased with the increased exercise during
physical therapy. Dr. Strugala recommended that she consult with anesthesiology pain
management. He noted that magnetic resonance imaging scan revealed minimal disc bulging at
L5-S1 and mild degenerative changes of the thoracic spine, but stated surgery was not indicated.
In an October 6, 2016 report, Dr. Strugala noted that appellant indicated that she had been
off work due to other issues. He provided an assessment of low back pain and advised that she
was provided with light-duty work restrictions.
On October 4, 2016 OWCP received a September 29, 2015 letter from E.W., an employing
establishment Health and Resource Management Specialist. E.W. indicated that appellant was
placed in an LWOP status as of July 2, 2016 as a result of a removal notice issued on October 27,
2015 for failure to maintain regular attendance. She stated that appellant’s failure to keep a regular
work schedule was not related to the work-related injury, which had occurred after the Notice of
Removal was issued. E.W. also stated that limited-duty work remained available to appellant had
she not been removed on July 2, 2016. A copy of the October 27, 2015 removal notice and
December 28, 2015 offer of modified assignment (limited duty) for modified carrier were attached.
By decision dated October 13, 2016, OWCP denied appellant’s claim for wage-loss
compensation for disability during the period commencing July 9, 2016. It found that the medical
evidence of record established that she would have been able to continue working in her limitedduty position at the employing establishment had she not been issued a termination notice for
cause.3
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty. In general the term disability under FECA
means incapacity, because of an employment injury, to earn the wages the employee was receiving
at the time of injury.5 This meaning, for brevity, is expressed as disability from work.6 For each
3

Appellant’s removal from the employing establishment was effective October 25, 2016.

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 (1993);
John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

3

period of disability claimed, the employee has the burden of proving that he or she was disabled
from work as a result of the accepted employment injury.7 Whether a particular injury caused an
employee to be disabled from employment and the duration of that disability are medical issues
which must be proved by the preponderance of the reliable probative and substantial medical
evidence.8
Disability is not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not entitled
to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.9
In cases where employment has in fact been terminated for misconduct and disability is
subsequently claimed, the Board has noted that in general the term disability under FECA means
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.10 Where employment is terminated, disability benefits would be payable
if the evidence of record established that the claimant was terminated due to injury-related physical
inability to perform assigned duties or the medical evidence of record established that the claimant
was unable to work due to an injury-related disabling condition.11
ANALYSIS
The Board finds that appellant has failed to establish that she was disabled begin
commencing July 9, 2016 causally related to her accepted December 23, 2015 employment injury.
OWCP accepted appellant’s claim for contusion of lower back, pelvis, left thigh, and left
wrist contracture as a result of a December 23, 2015 work injury. Following her work injury,
appellant worked a limited-duty modified carrier position. Effective July 2, 2016, she was placed
in LWOP status as a result of a removal notice issued on October 27, 2015 for failure to maintain
regular attendance.12 Appellant filed wage-loss compensation claims for disability commencing
July 9, 2016, which OWCP denied.

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

Id.

10

See Ralph Dennis Flanagan, Docket No. 94-1569 (issued May 28, 1996).

11

Id.

12

See supra note 3.

4

There is no evidence that appellant was placed on LWOP status during the claimed period
because of her accepted injury. The employing establishment advised that appropriate limited duty
would have been provided, but for her removal on July 2, 2016.13
At the time of her placement on LWOP on July 2, 2016, there was also no medical evidence
that her accepted conditions precluded her from performing her assigned light duties or that she
was unable to work due to an injury-related disabling condition. Dr. Bademosi, appellant’s family
practitioner, had released her to return to work on June 23, 2016. Dr. Strugala indicated in his
July 5, 2016 report that appellant was performing light-duty work. He did not opine that she was
unable to continue with this work. Following his July 5, 2016 report, Dr. Strugala related that
appellant was off work, however he never explained that she was disabled from her light-duty
work. He again reiterated in his October 6, 2016 report that she was provided with light-duty work
restrictions. As previously noted, the Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the particular period of
disability for which compensation is claimed.14 There is no medical evidence of record which
establishes that appellant was disabled from work due to the accepted December 23, 2015
employment after July 9, 2016.
The Board has held that, when a claimant stops work for reasons unrelated to his or her
accepted employment injury, he or she has no disability within the meaning of FECA.15
Accordingly, the Board finds that there is no basis for entitlement to wage-loss compensation for
the period July 9, 2016 and continuing.
As appellant failed to submit evidence sufficient to establish employment-related disability
for the period July 9, 2016 and continuing, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established total disability commencing July 9,
2016, causally related to her accepted December 23, 2015 employment injury.

13

See Terry R. Hedman, 38 ECAB 222 (1986).

14

Supra note 9.

15
V.M., Docket No. 16-0062 (issued May 18, 2016); V.B., Docket No. 12-114 (issued June 13, 2101); E.S., Docket
No. 11-657 (issued February 9, 2012); see John W. Normand, 39 ECAB 1378 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 13, 2016 is affirmed.
Issued: May 14, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, SOUTH
DESTINATION DELIVERY UNIT STATION,
Manchester, NH, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0697
Issued: April 25, 2018

Case Submitted on the Record

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

JURISDICTION
On February 6, 2017 appellant, through counsel, filed a timely appeal from a January 18,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from OWCP’s most recent merit decision, dated January 13, 2016, 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 appellant’s 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 pursuant to 5 U.S.C. § 8128(a).
On appeal counsel asserts that the medical evidence is uncontradicted and establishes that
appellant’s claim should be expanded to include a neck/cervical condition.
FACTUAL HISTORY
On February 5, 2013 appellant, then a 50-year-old supervisor of customer services, filed a
traumatic injury claim (Form CA-1) alleging that he was injured when a mail truck that was in
neutral hit a tree and, as he jumped into the driver’s seat to stop it, the steering wheel hit his
stomach.3 He did not stop work. OWCP accepted abdominal abrasion and contusion of abdominal
wall.
In April 2013, appellant requested that treatment for a cervical condition be authorized. By
letter dated July 23, 2013, OWCP noted that his medical history included a preexisting neck
condition. It asked that appellant provide records of all prior medical treatment to the neck.
By decision dated October 3, 2013, OWCP denied appellant’s request to expand
acceptance of the claim to include a neck/cervical condition. It found the medical evidence then
of record insufficient to establish that the claimed condition was caused by the February 5, 2013
employment injury.
On November 1, 2013 appellant timely requested a hearing before an OWCP hearing
representative. A telephone hearing was held on May 14, 2014. By decision dated July 30, 2014,
OWCP’s hearing representative affirmed the October 3, 2013 decision.
On October 21, 2014 appellant requested reconsideration. In a merit decision dated
December 30, 2014, OWCP denied modification of its prior decision.
Appellant, through counsel, again requested reconsideration on December 3, 2015.
By decision dated January 13, 2016, OWCP denied modification of its prior decision,
finding that the medical evidence then of record was insufficient to establish causal relationship.
It reviewed all medical evidence submitted including August 18, 2012 and March 14, 2013 cervical
spine x-rays that demonstrated degenerative spurring and disc space narrowing, a June 6, 2014
cervical magnetic resonance imaging study demonstrating spondylosis, and an August 28, 2014
bilateral upper extremity electrodiagnostic study demonstrating bilateral carpal tunnel syndrome.
Appellant’s attending Board-certified orthopedic surgeon, Dr. Russell S. Brummetti, advised in
reports dated February 12 and December 8, 2015 that appellant reported that he had no neck pain
before the employment injury and opined that the employment injury caused cervical disc
herniations.

3

Appellant was sitting in the back of the truck supervising a trainee who had exited the vehicle.

2

Appellant, through counsel, again requested reconsideration on January 12, 2017. Counsel
asserted that the medical evidence submitted was uncontradicted, unequivocal, and well
rationalized, and was, therefore, sufficient to establish causal relationship between the work injury
and appellant’s cervical symptoms. No additional medical evidence was submitted.
By decision dated January 18, 2017, OWCP denied appellant’s January 12, 2017 request
for reconsideration of the merits of his claim. It found that counsel’s argument regarding the
medical evidence was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review on
the merits. It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits of his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”5
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for further reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
With the January 12, 2017 reconsideration request, counsel asserted that the medical
evidence of record was uncontradicted, unequivocal, and well rationalized and was, therefore,
sufficient to establish a causal relationship between the work injury and appellant’s cervical
symptoms. The underlying issue in this case is whether his accepted conditions caused by a
February 5, 2013 employment injury should include a cervical/neck condition. As the issue is
medical in nature, it can only be resolved through the submission of medical evidence.7 Counsel’s
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).

7

Y.S., Docket No. 08-0440 (issued March 16, 2009).

3

argument did not show that OWCP erroneously applied or interpreted a specific point of law, or
advance a new and relevant legal argument not previously considered. Thus, appellant is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of his reconsideration request. No additional evidence was received prior to the
January 18, 2017 nonmerit decision.
As appellant did not show that OWCP erred in applying a point of law, advance a relevant
legal argument not previously considered, or submit relevant and pertinent new evidence, OWCP
properly denied his reconsideration request.8
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
8

M.A., Docket No. 16-1846 (issued October 20, 2017).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
PEACE CORPS, OFFICE OF MEDICAL
SERVICES, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-1621
Issued: February 7, 2007

Case Submitted on the Record

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

JURISDICTION
On July 4, 2006 appellant filed a timely appeal of an April 27, 2006 decision of the
Office of Workers’ Compensation Programs with respect to an overpayment of compensation
and a finding that she abandoned her request for a prerecoupment hearing. Pursuant to 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 the Office properly found that appellant abandoned a hearing
scheduled for April 13, 2006; (2) whether the Office properly found that an overpayment of
$6,358.71 was created for the period May 7 through October 2, 2004; and (3) whether the Office
properly determined that appellant was at fault in creating the overpayment of compensation.
FACTUAL HISTORY
On July 1, 1999 appellant, then a 46-year-old Peace Corps volunteer, filed several
occupational disease claims alleging injury as a result of her duties in Ecuador. The Office
accepted the following conditions as work related: asthma, bilateral bunions with right

bunionectomy in June 1999 and left bunionectomy in November 2001; ganglion of right foot
with ganglionectomy in June 1999; headaches; benign thyroid nodule; and aggravation of
cervical degenerative disc disease. Appellant was medically separated from the employing
establishment on July 1, 1999.
In a February 16, 2000 letter, the Office advised appellant that she was being placed on
the periodic rolls and noted her responsibility to return to work. In the attached EN1049-1196
form, the Office advised appellant: “When you return to work or obtain new employment, notify
this Office right away. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of compensation
even if you already notified us of your return to work.” By signature dated February 19, 2000,
appellant certified that she understood the conditions outlined in the EN1049 form, which
entitled her to compensation. She further certified her understanding that failure on her part to
comply with such conditions could result in termination of benefits and liability for resulting
overpayments. Appellant began receiving compensation on the periodic rolls. She submitted
completed EN1032-0494 forms for entitlement to compensation. In 2004, appellant received
total disability compensation in the amount of $1,424.00 every 28 days through direct deposit.
On August 2, 2002 the Office authorized vocational rehabilitation services. Appellant
participated in and completed a training program for the positions of substance abuse counselor
and forensic addition corrections treatment specialist. On May 7, 2004 she obtained part-time
employment at Genesis Programs as a drug and alcohol counselor earning $15.00 per hour.
Appellant eventually obtained full-time employment at Genesis Programs.1
In a letter dated October 20, 2004, the Office advised appellant that her monetary
compensation would be reduced effective September 7, 2004 as her weekly actual earnings of
$600.00 exceeded the weekly earnings of her date-of-injury job, $573.48. The Office advised
appellant that an overpayment existed for the period from her return to work through October 2,
2004 as she was paid total disability compensation through October 2, 2004. It stated that
appellant would be advised of the fact and amount of the overpayment once the exact dates of
her return to part-time and full-time work were confirmed.
In a November 10, 2004 annual Form EN1032-0494, appellant certified that she did not
work for any employer during the prior 15 months. She advised the Office that her new address
was 2285 Cherry Avenue, San Jose, California. In a letter dated December 7, 2004, the Office
advised appellant that both she and her rehabilitation counselor had reported her return to work
at Genesis Program. It further advised her of the penalties, as stated on the Form EN1032, for
failure to report all work activities and requested additional factual information.2
In an undated letter received by the Office on December 27, 2004, appellant advised that
she started work at Genesis Program part time on May 7, 2004 and full time on July 16, 2004.
She indicated that she stopped work on October 29, 2004 and began work at Baker Places on
1

The record reflects that on July 6, 2004 the Office approved $5,000.00 for rehabilitation maintenance for the
period January 1 through December 31, 2004.
2

The Office’s letter was addressed to appellant at her San Jose, California address.

2

November 30, 2004. Appellant provided a list of the hours, dates and earnings received at each
place of employment. She additionally indicated that she had relocated on November 1, 2004
and her new address was 2185 O’Farrell Street, Apt. #6, San Francisco, CA.
By decision dated January 12, 2005, the Office reduced appellant’s entitlement to
monetary compensation, effective May 7, 2004, on the grounds that her actual wages as a drug
and alcohol counselor for Genesis Programs fairly and reasonably represented her wage-earning
capacity.3
In a letter dated January 25, 2005, the Office advised appellant of a preliminary
determination that an overpayment of compensation totaling $6,358.71 was created during the
period May 7 through October 2, 2004. The Office explained that appellant received $7,577.71
for total disability compensation for the period May 16 through October 2, 2004,4 which
encompassed five payment cycles of $1,424.00 for a total of $7,120.00 and $457.71 for the
period May 7 through 15, 2004 ($1,424.00 divided by 28 days times 9 days). The Office noted
that since appellant initially returned to part-time work, she was due $1,219.00 based on the
Shadrick formula and deducted that amount from the $7,577.71 total disability compensation
received to find a total overpayment amount of $6,358.71.5 The Office made the preliminary
finding that appellant was at fault in the creation of the overpayment as she accepted payments
she knew or should have known she was not entitled to.
On January 31, 2005 appellant submitted an overpayment recovery questionnaire and
requested a prerecoupment hearing before the Office’s Branch of Hearings and Review, which
the Office received February 7, 2005. In a letter dated March 8, 2006, the Office advised
appellant that the hearing was scheduled for April 13, 2006 at 8:45 a.m. in San Francisco,
California.6
By decision dated April 27, 2006, the Office found that appellant received written
notification of the hearing 30 days in advance, that she did not appear for the scheduled April 13,
2006 hearing and there was no record that appellant contacted the Office either prior to or
subsequent to the scheduled hearing to explain her failure to appear. The Office determined that
appellant had abandoned her request for a prerecoupment hearing. It finalized its determination
3

The decision was addressed to appellant’s new San Francisco address of record.

4

This was comprised of five compensation checks issued on May 15, June 12, July 10, August 7, September 4
and October 2, 2004 in the amount of $1,424.00.
5

The Shadrick formula (derived from Albert Shadrick, 5 ECAB 376 (1953)) is used to calculate a claimant’s
wage-earning capacity. The calculation involves obtaining figures for adjusted weekly pay rate (per 5 U.S.C.
§ 8101(4)); current rate of pay for the job held when injured and current actual earnings. The wage-earning capacity
percentage is obtained by dividing current actual earnings by the current rate of pay for the job held when injured.
The wage-earning capacity amount is calculated by multiplying the current rate of pay for the job held when injured
times the wage-earning capacity percentage. The loss of wage-earning capacity figure is then obtained by
subtracting the wage-earning capacity amount from the current rate of pay for the job held when injured. Finally,
the compensation rate is obtained by multiplying the loss of wage-earning capacity figure times either 2/3 (no
dependents) or 3/4 (one or more dependents) per 5 U.S.C. §§ 8105, 8110.
6

The notice was sent to appellant’s San Francisco, California address.

3

of a $6,358.71 overpayment for the period May 7 through October 2, 2004 and denied waiver on
the basis that appellant was at fault in creating the overpayment.7
LEGAL PRECEDENT -- ISSUE 1
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, H&R [Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO [district office]. In
cases involving prerecoupment hearings, H&R will also issue a final
decision on the overpayment, based on the available evidence, before
returning the case to the DO.”8
ANALYSIS -- ISSUE 1
In this case, appellant made a timely request for a prerecoupment hearing. In finding that
appellant abandoned her request for a prerecoupment hearing, the Office noted that appellant was
notified that the prerecoupment hearing was to be held on April 13, 2006 in San Francisco,
California, that she received a written notification of the hearing 30 days in advance, that she
failed to appear for the scheduled April 13, 2006 hearing and that the record contained no
evidence that appellant contacted at the Office to explain her failure to attend hear hearing. On
appeal, appellant contends that she did not receive prior notification that a hearing had been
scheduled for April 13, 2006 as her address had changed. The record shows that the Office
mailed appropriate notice to her at her last known address in San Francisco, California. It is
presumed, absent evidence to the contrary, that a notice mailed to an individual in the ordinary
course of business was received by the individual. This presumption arises when it appears from
the record that the notice was properly addressed and duly mailed.9 The record also establishes
that appellant did not request postponement of the hearing date, failed to appear at the scheduled
7

The Office referenced its letter of February 16, 2000 regarding a return to work and entitlement to compensation
and found that appellant should have been aware that once she returned to part-time work, she would not be entitled
to compensation for total disability.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also Claudia J. Whitten, 52 ECAB 483 (2001).
9

Newton D. Lashmett, 45 ECAB 181 (1993); Michelle R. Littlejohn, 42 ECAB 463 (1991).

4

hearing and failed to provide any notification of such failure within 10 days of the scheduled date
of the hearing. As this meets the criteria for abandonment specified in Chapter 2.1601.6(e) of
the Office’s procedure manual, the Board finds that the Office properly found that appellant
abandoned her request for a prerecoupment hearing before an Office hearing representative.10
LEGAL PRECEDENT -- ISSUE 2
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, she may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.11 When a claimant receives a duplicative
compensation payment for a period that she has already received compensation for wage loss, an
overpayment of compensation is created.12
ANALYSIS -- ISSUE 2
Appellant started working for Genesis Program part time on May 7, 2004 and full time on
July 16, 2004. She received compensation for temporary total disability from April 18 through
October 2, 2004 in the amount of $7,577.71, which included $1,424.00 for five payment cycles
from May 16 through October 2, 2004 and $457.71 for May 7 through 15, 2004. Appellant is
not entitled to receive compensation for temporary total disability during a period that she
worked and received wages.13 The record establishes that because appellant worked part time
when she first returned to work, she was due some compensation based on her actual earnings.
In appellant’s undated letter received by the Office on December 27, 2004, appellant advised that
she earned $10,777.50 from May 7 through October 1, 2004, approximately 21 weeks, which
amounted to $513.21 a week. Using the Shadrick formula, the amount due is $1,219.00.
Accordingly, the amount appellant received $7,577.71 minus the $1,219.00 amount due
represents a $6,358.71 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act provides that 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

10

See Claudia J. Whitten, 52 ECAB 483, 485 (2001).

11

5 U.S.C. § 8116(a).

12

See Lawrence J. Dubuque, 55 ECAB 667 (2004).

13

See Kenneth E. Rush, 51 ECAB 116 (1999).

5

when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.14 No waiver of an overpayment is possible if the claimant is at fault in creating
the overpayment.15
On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part:
“An individual is with fault in the creation of an overpayment who: (1) made an
incorrect statement as to a material fact which the individual knew or should have
known to be incorrect; or (2) failed to furnish information which the individual
knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have
been expected to know was incorrect.”16
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“(b) Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”17
ANALYSIS -- ISSUE 3
The Office determined that appellant was at fault because she accepted payments she
knew or should have known were incorrect. The record reflects that on February 16, 2000, the
Office advised appellant of her responsibility to return to work and that she could not keep any
compensation paid for any period that she worked and earned wages, even if she had notified the
Office of her return to work. Appellant agreed to the Office’s conditions and subsequently
notified the Office of her return to work. However, after she returned to work on May 7, 2004,
appellant accepted a compensation payment for 28 days of total disability on May 15, 2004 as
well as subsequent payments for temporary total disability through October 2, 2004 in set
amounts of $1,424.00.
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit, which involve a series of payments over several
months, with clear knowledge that the payments are incorrect.18 However, the Board notes that
it is not appropriate to make a finding that a claimant has accepted overpayment via direct
14

5 U.S.C. § 8129(b).

15

Gregg B. Manston, 45 ECAB 344 (1994).

16

See Kenneth E. Rush, supra note 13.

17

20 C.F.R. § 10.433(b).

18

See George A. Hirsch, 47 ECAB 520 (1996); Kveta M. Kleven, Docket No. 99-2472 (issued August 10, 2000);
William J. Loughrey, Docket No. 01-1861 (issued July 12, 2002).

6

deposit until such time as a reasonable person would have been aware that this overpayment had
occurred. This awareness could be established either through documentation such as a bank
statement or notification from the Office or where a reasonable period of time has passed during
which a claimant could have reviewed independent confirmation of the incorrect payment.
In the instant case, the first direct deposit payment on May 15, 2004 for the period
April 18 to May 15, 2004 after appellant’s return to work May 7, 2004 occurred without
appellant’s knowledge that the direct deposit had been made. However, after her receipt of the
May 15, 2004 deposit, for which fault cannot be imputed to her, it could be presumed that she
knew the amount of compensation contained in subsequent direct deposit checks exceeded the
amount to which she was entitled. By the time appellant accepted the June 12, 2004 check -- the
second direct deposit check containing an overpayment -- a sufficient amount of time had passed
for appellant to become aware of the fact that the June 12, 2004 check and all subsequent checks
issued in the amount $1,424.00 contained an overpayment. Even if the overpayment resulted
from negligence on the part of the Office, this does not excuse the employee from accepting
payment which she knew or should have known she was not entitled.19 Appellant was informed
by the Office in its February 16, 2000 letter that she was required to notify the Office as soon as
she returned to work and to return any payment of compensation to the Office even if she had
already advised the Office that she was already working in order to avoid an overpayment of
compensation. After her receipt of the first direct deposit, for which fault may not be imputed to
her, it could be presumed that she knew the amount of compensation contained in subsequent
direct deposit checks exceeded the amount to which she was entitled.20
On appeal, appellant’s explanation appears to be that she believed the monies were from
her $5,000.00 approved maintenance payment. The Board finds no probative evidence to
support that appellant could reasonably believe the total disability compensation payments were
made pursuant to her maintenance check. The record contains no evidence supporting that
appellant was owed monies for any other services beyond those for which the Office paid.
For these reasons, the Board finds that, under the circumstances of this case, the Office
properly found that appellant reasonably knew or should have known that the direct deposits
issued by the Office which covered the period commencing May 16, 2004 were in error. As
appellant was not without fault under the third standard outlined above, recovery of the
overpayment of compensation may not be waived for this time period. Thus, the Office decision
dated April 27, 2006 is affirmed in this respect. The evidence of record does not establish that
19

See Russell E. Wageneck, 46 ECAB 653 (1995).

20

As noted above, the Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several months, with clear
knowledge that the payments are incorrect. See supra note 18. The Board notes that it is not appropriate to make a
finding that a claimant has accepted overpayment via direct deposit until such time as a reasonable person would
have been aware that this overpayment had occurred. This awareness could be established either through
documentation such as a bank statement or notification from the Office or where a reasonable period of time has
passed during which a claimant could have reviewed independent confirmation of the incorrect payment. In the
instant case, by the time appellant accepted the June 12, 2004 check -- the second direct deposit check containing an
overpayment -- a sufficient amount of time had passed for appellant to become aware of the fact that the checks
contained an overpayment.

7

appellant was at fault for any of the overpayments made prior to May 16, 2004, the Office’s
finding of fault is, therefore, modified in this regard.
CONCLUSION
The Board finds that the Office properly determined that appellant abandoned her request
for a prerecoupment hearing and that an overpayment of $6,358.71 was created. Also the Board
finds that appellant is at fault for the overpayment for the period commencing May 16, 2004, but
is not at fault for the prior period of overpayment which occurred during the period April 18
through May 15, 2004. The case is remanded to the Office for determination of waiver for the
period May 7 to 15, 2004.21
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed in part, modified in part and remanded in part for
further adjudication in compliance with this decision of the Board.
Issued: February 7, 2007
Washington, DC

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

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

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

21

The Board notes that it does not have jurisdiction to review the Office’s recovery of the overpayment. The
Board’s jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation under the Act. Judith A. Cariddo, 55 ECAB 348 (2004).

8