United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, CITY OF INDUSTRY
PROCESSING & DISTRIBUTION CENTER,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 20-0867
Issued: October 13, 2021

Case Submitted on the Record

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

JURISDICTION
On March 10, 2020 appellant filed a timely appeal from January 29, February 11 and 13,
2020 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award;
(2) whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and
medical benefits, effective January 29, 2020; (3) whether appellant received an overpayment of
compensation in the amount of $1,492.17, for which she was without fault, because she
concurrently received Office of Personnel Management (OPM) retirement benefits and FECA

1

5 U.S.C. § 8101 et seq.

wage-loss compensation for the period December 18, 2019 through January 4, 2020; and
(4) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On July 7, 2011 appellant, then a 53-year-old mail processor, filed an occupational disease
claim (Form CA-2) alleging that she experienced pain in her shoulders, knees, hands, upper and
lower back, and left foot due to factors of her federal employment. OWCP accepted the claim for
sprains of the thoracic and lumbar areas of the spine, wrists, shoulders and upper arm, left hip and
thigh, knees, and left ankle. It later expanded the acceptance of the claim to include left medial
meniscus tear and authorized left knee arthroscopy, partial medial meniscectomy, partial lateral
meniscectomy, patelloplasty, lateral tibial plateau, and medial femora condyle chondroplasty
which occurred on December 8, 2011. OWCP paid appellant wage-loss compensation on the
supplemental rolls commencing August 9, 2011 and on the periodic rolls beginning
November 20, 2011.
In a September 24, 2014 report, Dr. Mark Greenspan, an orthopedic surgeon, related
extensive physical examination findings. He opined that appellant had reached maximum medical
improvement (MMI) and provided permanent impairment ratings using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2 Dr. Greenspan found that appellant had 7 percent permanent impairment of the right
shoulder, 1 percent permanent impairment of the wrists, 2 percent permanent impairment of the
left hip, 10 percent permanent impairment of the knees, and 1 percent permanent impairment of
the left foot. He rated appellant’s thoracic and lumbar spine impairments and concluded that
appellant had a total whole person impairment of 30 percent.
In a September 12, 2017 report, Dr. Greenspan detailed appellant’s physical examination
findings including range of motion findings. Diagnoses included bilateral shoulder overuse
syndrome, acromioclavicular arthrosis, right shoulder supraspinatus/ infraspinatus tendinosis,
bilateral upper extremities overuse syndrome, bilateral wrist sprain, thoracic musculoligamentous
sprain, thoracic spondylosis, L3-4 bilateral facet arthrosis, L4 grade 1 anterolisthesis, L4-5 right
foraminal disc protrusion with right neural foraminal narrowing and bilateral facet arthrosis, L5S1 central disc protrusion with mild central canal narrowing, bilateral face arthrosis, and bilateral
neural foraminal narrowing, left hip sprain, left knee medial meniscus posterior horn tear, left knee
medial tibiofemoral loss arthritis, left knee medial patellar facet chondromalacia, left knee Baker’s
cyst, left knee superior patella enthesopathy, severe left knee degenerative joint disease, right knee
medial meniscus tear, right knee medial femoral condyle osteochondral abnormality, right knee
lateral meniscus posterior horn degeneration, left foot Morton’s Neuroma, and small Baker’s cyst.
Dr. Greenspan referred to his September 24, 2014 report for details regarding appellant’s
permanent impairment rating.
On October 11, 2019 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a set of questions to Dr. Ghol Bahman Ha’Eri, a Board-certified

2

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

2

orthopedic surgeon, for a second opinion evaluation in order to determine the status of her accepted
conditions, along with treatment recommendations, if any, and appropriate work restrictions.
Dr. Ha’Eri, in a report dated November 13, 2019, detailed the history of appellant’s
accepted April 26, 2011 employment injury and medical treatment. He reported appellant’s
physical examination findings, noting that regional examination of the thoracic and lumbar spine
revealed no thoracic tenderness, mild diffuse lumbar tenderness, no paraspinal muscle spasm, and
negative bilateral straight leg raising. Appellant had limited lumbar range of motion (ROM).
Dr. Ha’Eri reported that physical examination of appellant’s shoulders revealed limited ROM on
the right and no abnormality on the left. An examination of the lower extremities revealed no
neurological deficit, full left hip ROM with no tenderness, full bilateral knee ROM, mild diffuse
bilateral knee tenderness and no joint effusion. Dr. Ha’Eri advised that appellant’s work-related
conditions had resolved due to the lack of any evidence supporting continuing residuals or
disability. He noted, however that there was objective evidence of lower back and bilateral knee
degenerative conditions, which might require future medical care on a nonindustrial basis.
Diagnoses included resolved work-related lumbar and thoracic sprains; nonwork-related L4-5 and
L5-S1 lumbar disc protrusion; work-related bilateral shoulder sprain with residual right shoulder
stiffness; work-related bilateral wrist sprain, resolved; work-related left hip sprain, resolved; workrelated left ankle sprain, resolved; bilateral work-related knee sprain; and bilateral knee
degenerative posterior horn meniscus tear. Dr. Ha’Eri opined that appellant was disabled from
performing her date-of-injury mail processor job due to degenerative lumbar disc disease and
bilateral knee degenerative changes. However, he related that appellant was capable of working a
40-hour work week with restrictions. In an attached work capacity evaluation (Form OWCP-5c),
Dr. Ha’Eri provided work restrictions, which included: no more than three hours of walking and
standing; no bending, stooping, squatting, kneeling, climbing, or operating a motor vehicle at
work; no more than three hours of pushing, pulling, and lifting no more than 10 pounds.
On December 18, 2019 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
On December 19, 2019 OWCP issued a notice proposing to terminate appellant’s wageloss compensation and medical benefits as she no longer had residuals or disability due to her
accepted employment conditions.
On January 6, 2020 appellant elected to receive OPM benefits in lieu of FECA benefits,
effective December 18, 2019.
In a January 6, 2020 letter, OPM advised OWCP that appellant elected to receive OPM
benefits, effective December 18, 2019, in lieu of compensation benefits under FECA. It also noted
that it appeared appellant’s last FECA payment occurred on January 4, 2020. OPM requested that
OWCP provide a letter affirming the termination of appellant’s FECA benefits, so that it could
begin payment of appellant’s retirement benefits.
In a January 7, 2020 development letter, OWCP requested that appellant submit a report
from her attending physician, which addressed whether she had reached MMI and, if so, to evaluate
permanent impairment in accordance with the standards of the sixth edition of the A.M.A., Guides.
It afforded her 30 days to submit the necessary evidence.

3

In a separate letter of even date to OPM, OWCP indicated that appellant elected to receive
OPM benefits effective December 18, 2019 in lieu of compensation benefits under FECA, and it
requested that OPM commence annuity payments effective that date. It also requested that OPM
reimburse OWCP in the amount of $1,492.17 for FECA benefits paid during the period
December 18, 2019 through January 4, 2020.
An OWCP compensation termination fiscal worksheet dated January 7, 2020 noted that the
effective date of the periodic rolls termination was December 18, 2019 due to appellant’s election
of December 18, 2019 as the effective date for the receipt of her OPM benefits. It also noted that
an overpayment in the amount of $1,492.17 had been created as she continued to receive FECA
compensation benefits for 18 additional days after her effective election date for the period
December 18, 2019 through January 4, 2020.
On January 9, 2020 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $1,492.17 for the period December 18, 2019
through January 4, 2020. It explained that the overpayment was the result of her receipt of FECA
compensation benefits through January 4, 2020 after having elected receipt of OPM benefits,
effective December 18, 2019. OWCP determined that appellant was without fault in the creation
of the overpayment. It provided a calculation of the overpayment and requested that she complete
an overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. OWCP advised that failure to submit the requested information within 30 days
would result in the denial of waiver of the overpayment. Additionally, it provided an overpayment
action request form and notified appellant that within 30 days of the date of the letter, she could
request a final decision based on the written evidence or a prerecoupment hearing.
By decision dated January 29, 2020, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective that day.
By decision dated February 11, 2020, OWCP finalized the overpayment and finding that
she was without fault in the creation of the overpayment. It further found waiver of the recovery
of the overpayment was not warranted and that it had contacted OPM to reimburse OWCP for
benefits paid for the period December 18, 2019 through January 4, 2020 in the amount of
$1,492.17.
By decision February 13, 2020, OWCP denied appellant’s claim for a schedule award as
the medical evidence was insufficient to establish a permanent impairment of a scheduled member
or function of the body and her entitlement to wage-loss compensation and medical benefits were
terminated effective January 29, 2020.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. 3 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
3

Supra note 1 at § 8107; 20 C.F.R. § 10.404.

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to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 4 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).5 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 6
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 7 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates that the date on which
this occurred MMI, describes the impairment in sufficient detail so that it can be visualized on
review, and computes the percentage of impairment in accordance with the A.M.A., Guides.8 Its
procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated. 9 If the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award. 10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision with regard to appellant’s
schedule award claim.
In support of her schedule award claim, appellant submitted medical reports from
Dr. Greenspan dated September 24, 2014 and September 17, 2017, in which he opined that
appellant had reached MMI and provided permanent impairment ratings using the sixth edition of
the A.M.A., Guides.
The record also reflects appellant’s left knee surgical procedures, which are ratable under
the A.M.A., Guides. OWCP, however, did not refer these reports to a district medical adviser
4

Id. at § 10.404. E.S., Docket No. 20-0559 (issued October 29, 2020); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(March 2017).
6

J.C., Docket No. 20-1071 (issued January 4, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
7

J.C., id.; Edward Spohr, 54 ECAB 806 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

8

Supra note 5 at Chapter 2.808.5 (March 2017).

9

Id. at Chapter 2.808.6(a) (March 2017).

10

Id.

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(DMA), but instead denied appellant’s schedule award claim finding that her entitlement to
medical benefits and wage-loss compensation had been terminated effective January 29, 2020, and
no report providing a permanent impairment rating had been received.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.11 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done. 12 Dr. Greenspan opined that appellant had reached MMI regarding her accepted
conditions. OWCP should have referred the case record to a DMA to confirm that MMI had been
reached for her accepted conditions and to address application of the A.M.A., Guides as to
permanent impairment, if any. 13
The Board, therefore, finds that the case must be remanded to OWCP for further
development. On remand OWCP shall forward the medical record to a DMA for an opinion
addressing whether appellant has reached MMI for her accepted conditions, whether she has
permanent impairment of a scheduled member or function of the body in accordance with the sixth
edition of the A.M.A., Guides and, if so, the extent of her permanent impairment.14 Following this
and other such further development deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claim.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s compensation benefits. 15 After it has determined
that, an employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment. 16 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background. 17

11

S.M., Docket No. 18-0837 (issued January 11, 2019); K.G., Docket No. 17-0821 (issued May 9, 2018); John J.
Carlone, 41 ECAB 354 (1989).
12

Id.

13

Supra note 5 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8(i)
(September 2010); see S.M., supra note 11; N.I., Docket No. 16-1027 (issued January 11, 2017) (finding that the
claimant’s physician provided an impairment rating under the sixth edition of the A.M.A., Guides and that, therefore,
the file should have been routed to OWCP’s medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides).
14

S.M., supra note 11; T.W., Docket No. 16-0176 (issued January 10, 2018).

15

J.D., Docket No. 20-1167 (issued January 26, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
16

See J.D., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
17

J.D., id.; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 29, 2020.
In his November 13, 2019 report, Dr. Ha’Eri related that appellant’s physical examination
revealed no thoracic tenderness, mild diffuse lumbar tenderness, no paraspinal muscle spasm,
negative bilateral straight leg raising, and limited lumbar ROM. Other examination findings
included limited right shoulder ROM, no left shoulder abnormality, no lower e xtremity
neurological deficit, full left hip and bilateral knee ROM, mild diffuse bilateral knee tenderness
and no joint effusion. Dr. Ha’Eri advised that her work-related conditions had resolved given the
lack of any objective finding on physical examination. However, he noted there was objective
evidence of lower back and bilateral knee degenerative conditions, which might require future
medical care on a nonindustrial basis. Dr. Ha’Eri found that appellant was not capable of returning
to her date-of-injury mail processor job due to degenerative lumbar disc disease and bilateral knee
degenerative changes, but was capable of working a 40-hour work week with restrictions.
Dr. Ha’Eri did not provide sufficient medical rationale in support of his opinion th at
appellant ceased to have residuals and disability causally related to her accepted A pril 26, 2011
employment injury. Appellant sustained employment injuries affecting multiple areas of her body,
including thoracic spine, lumbar spine, bilateral wrist, bilateral shoulder and upper arm sprain, left
hip and thigh, bilateral knee, left ankle, and left medial meniscus tear. OWCP had also authorized
left knee arthroscopy, partial medial meniscectomy, partial lateral meniscectomy, patelloplasty,
lateral tibial plateau, and medial femora condyle chondroplasty surgery. However, Dr. Ha’Eri did
not discuss the specific accepted employment-related conditions in any detail. He did not provide
any discussion of when appellant’s employment-related conditions had resolved, based upon the
medical evidence of record, or otherwise provide sufficient medical rationale in support of his
opinion that appellant ceased to have employment-related residuals and disability. Dr. Ha’Eri
related continuing diagnoses of some conditions, including bilateral shoulder and wrist sprains.
The Board has held that a medical opinion is of limited probative value if it contains a conclusion
regarding a given medical matter which is unsupported by medical rationale. 18 Dr. Ha’Eri’s report
is therefore of limited probative value and insufficient to carry the weight of the medical evidence.
As such the Board finds that OWCP erred in relying on his opinion as the basis to terminate wageloss compensation and medical benefits for the accepted employment injuries. Therefore, OWCP
failed to meet its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits.19
LEGAL PRECEDENT -- ISSUE 3
Section 8102 of FECA provides that the United States shall pay comp ensation for the
disability or death of an employee resulting from personal injury sustained while in the
18

See P.C., Docket No. 20-0371 (issued January 26, 2021); L.G., Docket No. 19-0142 (issued August 8, 2019);
E.R., Docket No. 15-1046 (issued November 12, 2015); C.M., Docket No. 14-0088 (issued April 18, 2014).
19

P.C., id.; J.H., Docket No. 18-0103 (issued October 15, 2018); J.S., Docket No. 17-0804 (issued
August 10, 2018).

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performance of duty. 20 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits.21 Section 8116(a) provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being compensated
for under FECA. 22 Section 10.421(a) of OWCP’s implementing regulations provides that a
beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.23 The beneficiary must elect the benefit that he or she wishes to receive. 24
OWCP’s procedures also explain that the employee must make an election between FECA
benefits and OPM benefits. The employee has the right to elect the monetary benefit which is the
more advantageous. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $1,492.17 for the period De cember 18, 2019
through January 4, 2020.
On January 6, 2020 appellant elected OPM retirement benefits, effective
December 18, 2019. OPM, however, continued to pay her wage-loss compensation for temporary
total disability for the period December 18, 2019 through January 4, 2020. OWCP calculated that
an overpayment of $1,492.17 was therefore created.
A FECA beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity. 26 The clear language of section 8116(a) of FECA, section
10.421(a) of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent
receipt of FECA wage-loss benefits and a federal annuity. 27

20

Supra note 1 at § 8102.

21

Id. at § 8116.

22

Id. at 8116(a).

23

20 C.F.R. § 10.421(a).

24

Id.

25

Supra note 5, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (January 1997); see also V.C., Docket No.
20-0852 (issued January 28, 2021); D.J., Docket No. 20-0004 (issued May 21, 2020); R.S., Docket No. 11-0428
(issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).
26

Supra note 22; B.C., Docket No. 20-1415 (issued April 14, 2021).

27

Supra note 25.

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However, there is no evidence of record establishing that appellant actually received OPM
retirement benefits for the period December 18, 2019 through January 4, 2020.28 The Board has
previously held that the mere fact that a claimant received FECA benefits after the date of an OPM
election will not establish receipt of a prohibited dual benefit. 29 The record must substantiate that
appellant actually received dual benefits. While the record reflects that appellant received FECA
benefits for this period, the Board finds that OWCP had not established that she concurrently
received OPM retirement benefits for the same period.30
Therefore, the Board finds that OWCP has not met its burden of proof to establish that the
overpayment occurred.31
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant has
established a permanent impairment of a scheduled member or function of the body, warranting a
schedule award. The Board also finds that OWCP failed to meet its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective January 29, 2020. The Board
further finds that OWCP improperly determined that appellant received an overpayment of
compensation in the amount of $1,492.17 for the period December 18, 2019 through
January 4, 2020.32

28

See V.C., supra note 25; V.B., Docket No. 19-1874 (issued June 4, 2020); C.P., Docket No. 19-0732 (issued
September 5, 2019); J.M., Docket No. 15-1604 (issued May 23, 2016).
29

B.H., Docket No. 13-1955 (issued January 29, 2014).

30

See R.R., Docket No. 18-0032 (issued May 3, 2018) (the election form signed by appellant on December 21, 2018
was insufficient to show that he actually began receiving OPM retirement benefits). See also E.R., Docket No.
18-0084 (issued July 27, 2018).
31

See J.A., Docket No. 18-0259 (issued August 5, 2019).

32

In light of the Board’s disposition of Issue 3, Issue 4 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the January 29 and February 11, 2020 decisions of
the Office of Workers’ Compensation Programs are reversed. The February 13, 2020 decision of
the Office of Workers’ Compensation Programs is set aside and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: October 13, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10


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

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

Docket No. 17-0547
Issued: November 13, 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 January 3, 2017 appellant filed a timely appeal from a July 28, 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 this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar injury in
the performance of duty on December 15, 2014.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument in this case. By order dated May 3, 2018, the Board exercised
its discretion and denied appellant’s request as oral argument would further delay issuance of a Board decision and
not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 17-0547 (issued May 3, 2018).

FACTUAL HISTORY
On February 25, 2015 appellant, then a 63-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on December 15, 2014, she sustained a left lower back injury as
a result of standing and lifting relay bundles during a 13-hour overtime shift. She stopped work
and first received medical care on December 16, 2014.3
In a December 22, 2014 note from Advantage Care Physicians, Renee Bloomfield, a nurse
practitioner, reported that appellant was seen for lower back and knee pain. She noted chronic
conditions, which started on September 1, 1993 after a lifting injury at work. Ms. Bloomfield
reported that the condition had recently flared up in August 2014 and appellant was diagnosed
with lumbar radiculopathy, herniated disc of the lumbar spine, and osteoarthritis of the knee. She
reported that these conditions limited appellant’s ability to stand, lift, push, and pull. Appellant
was advised to return to work on restricted duty on December 26, 2014.
In support of her claim, appellant submitted numerous statements describing the
December 15, 2014 incident, her employment duties, course of medical treatment, issues with her
supervisors regarding the filing of her claim, and problems obtaining medical appointments and
treatment for her injuries.
In a statement dated December 17, 2014, appellant explained that on December 15, 2014
the mail was delayed for her street assignment. A new employee was assigned to perform relays
because three drivers were absent. As he was given many relays to complete, this caused the entire
employing establishment to have to perform overtime. Appellant related that she was not informed
that she would have to work overtime prior to departing to her street assignment. She noted that,
because of her prior employment-related injuries, she would not voluntarily put her name on the
desired overtime list.4 Appellant reported that, on the date of the incident, the driver was five
hours late, which resulted in her standing that entire time while waiting for the relay bags. The
driver arrived after 7:00 p.m., while her regular tour schedule was from 7:30 a.m. to 4:00 p.m.,
normally receiving the relays between 12:00 p.m. and 1:00 p.m.
Appellant claimed that excessive standing and walking back and forth on December 15,
2014 caused her injury. She explained that she removed the first relay bag off the truck and
completed her delivery. Upon returning to retrieve the second and third bags, appellant began
walking with some discomfort and experienced acute pains in her lower left back and leg. She
tried to contact the employing establishment, but no one would pick up the telephone. Appellant’s
pain was excruciating so she walked back to the employing establishment and informed the night
carrier, L.C., about the excessive overtime and late driver. L.C. responded that some people like
3

The present claim was assigned OWCP File No. xxxxxx619. The record also reflects a March 7, 2015 Form CA-1
claiming a March 3, 2015 traumatic injury when appellant turned and felt a buckle in her left knee. OWCP assigned
that claim OWCP File No. xxxxxx491. On the reverse side of the claim form appellant reported that her supervisor
forced her to file three different Form CA-1’s for the same injury, which all derived from the December 15, 2014
incident. She reported that she did not want to file another Form CA-1, but that the employing establishment pressured
her to change her December 17, 2014 statement. Rather than changing her statement, appellant provided an addendum
describing the history of injury.
4

The record before the Board does not contain information pertaining to appellant’s prior work-related claims.

2

overtime. Appellant reported that her supervisor, W.P., was not on duty so she went to her desk
to leave her a message regarding her injury. She could only find a notice of absence form 3971,
which she left for W.P. stating that she had an injury and was seeking medical treatment. Appellant
reported that she had an appointment with her treating physician the following day, but he only
requested that she obtain a blood pressure reading. She attempted to get another appointment, but
could not be seen until December 22, 2014. On December 17, 2014 appellant reported to work to
file the required workers’ compensation forms. Her supervisor, W.P., informed her that the Form
3971 was insufficient and requested that she submit a statement along with the workers’
compensation forms provided. Appellant completed the workers’ compensation forms, but could
not find her supervisor to submit the paperwork. She explained that she attempted to give the
forms to D.H., another supervisor, who instructed her to submit them to J.H., the area manager.
Appellant reported that D.H. witnessed her slide the forms underneath J.H.’s locked office door.
She then saw W.P. moments later and informed her that the forms were in J.H.’s office.
Appellant submitted medical reports, diagnostic reports, physical therapy notes, and nurse
practitioner notes dated December 16, 2014 through September 10, 2015 documenting treatment
for her lumbar injury.
In a January 17, 2015 duty status report (Form CA-17), Dr. Raghava Polavarapu, a Boardcertified orthopedic surgeon, diagnosed lumbosacral strain and provided a history of lifting three
bags at work on December 15, 2014. In a February 2, 2015 Form CA-17, he diagnosed
lumbosacral sprain and noted a history of lifting bags of mail and excessive overtime.
Appellant also submitted medical reports dated March 12 through July 2, 2015 from
Dr. Dorina Drukman, an osteopathic physician. In a March 12, 2015 medical report, Dr. Drukman
reported that appellant presented with a history of recurrent lower back pain with progressive
weakness in the left leg from December 15, 2014 while at work. She discussed appellant’s history
of a back injury stemming back to 1993 and reported that, due to aggravation of the lower back
pain on December 15, 2014, she was unable to work until January 25, 2014. Dr. Drukman
diagnosed lumbar radiculitis, history of lumbar disc herniation, and numbness in the left leg. She
recommended a lumbar spine magnetic resonance imaging (MRI) scan and restricted appellant
from returning to work.
In an April 14, 2015 attending physician’s report (Form CA-17), Dr. Drukman reported
that on December 15, 2014 appellant worked for 13 hours, primarily standing. The last four hours
of the day were spent on her feet. While pulling a bag she experienced severe lower back pain
radiating into the left leg. Dr. Drukman checked a box marked “yes” to a question of whether the
diagnosed condition was caused or aggravated by the employment incident. She diagnosed lumbar
radiculitis, history of lumbar disc herniation, and numbness in the left leg.
By letter dated March 18, 2015, the employing establishment controverted the claim. It
reported that on December 13, 2014 appellant was overheard asking W.P. how to file a workers’
compensation claim after appellant had been informed that it was a possibility that she may be
required to work overtime in order to complete her assignment if no one else was available. The
employing establishment indicated that she alleged a December 15, 2014 back injury after waiting
for her relay duties for over an hour. However, appellant had indicated to W.P. that her inability
to work overtime was due to a back injury which occurred 12 years prior. The employing
3

establishment contended that, on the date in question, she failed to notify the supervisor who was
on duty, L.C., of the injury. The employing establishment noted that appellant was questioned and
provided a statement dated December 17, 2014 alleging an occupational injury. Appellant also
alleged to have informed her supervisor, D.H., of the incident. However, the employing
establishment reported that D.H. was not advised of the incident and was off duty.
By development letter dated February 12, 2016, OWCP notified appellant that the evidence
of record was insufficient to establish her claim. Appellant was advised of the medical and factual
evidence needed and was asked to respond to a questionnaire. OWCP provided her with a copy
of the employing establishment’s letter of controversion for comment. The questionnaire advised
appellant to describe in detail the employment-related activities which she believed contributed to
her condition and all activities and hobbies outside of her federal employment. OWCP also
requested that she specify whether she was claiming an occupational disease or traumatic injury
based on the definitions provided. Appellant was afforded 30 days to submit the requested
evidence. No response was received.
By decision dated March 16, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the December 15, 2014 employment incident
occurred as alleged, noting that she failed to respond to the February 12, 2016 development letter.
On April 13, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
On March 28, 2016 appellant responded to OWCP’s development questionnaire and
confirmed that she was claiming a traumatic injury. She reported that her lumbar injury occurred
on December 15, 2014 after the relay driver was 3 to 4 hours late, resulting in overtime and 13
hours of work that day. Appellant described the circumstances surrounding the employment
incident, reporting that she was on East 61st Street and Third Avenue waiting for relays from
approximately 3:00 p.m. to about 6:30 p.m. When the driver finally arrived, she placed the relays
in her car and was able to complete the building delivery. When appellant tried to pull the last
relay box and mailbags, appellant experienced lumbar pain and difficulty walking. She noted the
approximate time of injury as 7:00 p.m. to 7:30 p.m. Appellant reported that she wanted to put
her push cart in the relay box, but was unable to bend over to disassemble it. She reported that she
returned to the employing establishment and notified the clerk at the desk what had happened.
Appellant contested the allegations made by the employing establishment and described the
circumstances surrounding her claim, notification of injury to her superiors, and filing of paper
work. She reported that she came to work on December 17, 2014 to file an injury claim which
resulted in her absence through January 25, 2015. Following her return to work, appellant’s
supervisor made her file a new Form CA-1 even though she had submitted the required paperwork
on December 17, 2014.
Appellant stated that she never questioned how to file a workers’ compensation claim prior
to the date of the alleged employment incident “on December 13, 2014” as alleged by the
employing establishment. She denied having a conversation with W.P. on December 13, 2014
regarding how to file a claim because she would never ask that question as she had previously filed
Form CA-1’s and knew how to file a workers’ compensation claim. Appellant reported that on
that date W.P. had questioned appellant’s absence on December 3, 2014 and threatened to not pay
4

her because she believed that appellant took time off for her birthday. She reported no other
injuries, either on or off duty, between the date of injury and the date she first reported the
condition. Appellant further reported that she had a prior similar injury stemming back to 1993 as
demonstrated by her diagnostic reports and described her course of medical treatment following
the December 15, 2014 employment incident.
Appellant also submitted medical reports in support of her traumatic injury claim. In a
March 11, 2016 report, Dr. Drukman diagnosed left L5 radiculopathy and lumbar and lumbosacral
multilevel disc herniation with foraminal impingement and nerve root impingement. She reported
that appellant had a history of multiple recurrent episodes of lower back pain precipitated by
prolonged standing while at work from 1993, with flare ups in 1995, 1997, 1999, 2001, 2004,
2007, 2010, and 2013. Dr. Drukman explained that, during subsequent years, appellant’s condition
progressively worsened. In December 2014, appellant was asked to work overtime and after many
hours of constant standing, she lifted a bag with mail and experienced severe pain in her lower
back. She continued to work, but on December 15, 2014 while at work, her lower back pain
became more severe. Dr. Drukman opined that appellant’s preexisting condition of lumbar spine
disc herniation was aggravated by the December 2014 employment incident.
A hearing was held on June 23, 2016 where appellant described the circumstances
surrounding the alleged December 15, 2014 employment incident and the filing of her claim.
Appellant reported that she filed her Form CA-1 on December 17, 2014 and was subsequently out
of work because of her injury. When she returned to work in February 2015, the employing
establishment made her complete a new form despite her protests, explaining why her claim was
not filed within 30 days of the incident. Appellant reported a prior September 1, 1993 lumbar
injury for a disc herniation. She noted that she had been restricted from working overtime due to
that prior disc herniation and, although she had a prior disc herniation, her recent MRI scan
revealed multiple disc herniations. OWCP’s hearing representative held the case record open for
30 days for submission of additional evidence.
By decision dated July 28, 2016, OWCP’s hearing representative affirmed the March 16,
2016 decision, finding that the evidence of record was insufficient to establish that the
December 15, 2014 employment incident occurred, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Michael E. Smith, 50 ECAB 313 (1999).

5

In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
When an employee claims that he or she sustained an injury in the performance of duty,
the employee must submit sufficient evidence to establish that he or she experienced a specific
event, incident, or exposure occurring at the time, place, and in the manner alleged. He or she
must also establish that such event, incident, or exposure caused an injury.8 Once an employee
establishes that he or she sustained an injury in the performance of duty, the employee has the
burden of proof to establish that any subsequent medical condition or disability for work, for which
he or she claims compensation is causally related to the accepted injury.9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met her burden when there are such inconsistencies
in the evidence as to cast serious doubt on the validity of the claim.10
ANALYSIS
The Board finds that this case is not in posture for decision.11
On her Form CA-1 appellant reported that on December 15, 2014 she sustained acute pain
to the left lower back as a result of 13 hours of work that day, standing and lifting relay bundles.
She subsequently provided a December 17, 2014 statement describing the circumstances
surrounding the December 15, 2014 incident. On March 16, 2016 OWCP denied appellant’s
claim, noting that she failed to respond to OWCP’s February 12, 2016 development letter and
questionnaire.
The Board notes that, following OWCP’s March 16, 2016 decision, appellant responded to
OWCP’s questionnaire. In narrative statements received on March 28, 2016, she provided greater
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8
See generally, John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined).
9

Supra note 6.

10

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

11

M.H., Docket No. 16-0453 (issued April 21, 2016).

6

detail pertaining to the December 15, 2014 employment incident, the filing of her claim, and
medical course of treatment. Appellant responded to each question posed and explained that she
had a preexisting herniated disc from 1993 and did not sustain any other injury from the date of
the December 15, 2014 employment incident to the filing of her claim. The Board notes that her
Form CA-1, December 17, 2014 statement, and March 28, 2016 statement, as well as her June 23,
2016 testimony, provided a consistent account of the December 15, 2014 employment incident.12
In its March 18, 2015 challenge letter, the employing establishment controverted the claim
for failing to immediately notify appellant’s supervisor. The record reflects that her supervisor
W.P. was not on duty on the evening of December 15, 2014 when the injury occurred. The
employing establishment further acknowledged that appellant’s other supervisor, D.H., was also
not on duty at the time of the incident. Appellant explained that, following her injury on
December 15, 2014, she complained to the night carrier L.C. about the excessive overtime. As
W.P. was off duty, appellant left her a note stating that she was injured and seeking treatment.
While her claim was not filed immediately following the December 15, 2014 employment
incident, the employing establishment acknowledged that on December 17, 2014 she was
questioned regarding the matter, requested a Form CA-2 to file an occupational disease claim, and
submitted a statement claiming that she hurt her back on December 15, 2014. As appellant
provided the employing establishment a statement describing the December 15, 2014 injury just
two days following the employment incident, her delay in filing a Form CA-1 does not cast such
inconsistencies as to doubt that the incident occurred at the time, place, and in the manner alleged.13
Furthermore, while the employing establishment controverted the claim for failing to immediately
notify her supervisor, there is no requirement that a claim be filed on the date of injury.14 In cases
of injury on or after September 7, 1974, section 8122(a) of FECA provides that an original claim
for compensation for disability or death must be filed within three years after the injury or death.15
The employing establishment also asserted that on December 13, 2014 appellant was
overheard asking Supervisor W.P. how to file a workers’ compensation claim because her back
hurt and she could not work overtime. It alleged that this conversation occurred after W.P.
informed appellant that it was a possibility that she may be required to work overtime in order to
complete her assignment if no one else was available. In her March 18, 2016 narrative statement,
appellant denied ever making such a statement as she already knew how to file a workers’
compensation claim, having previously filed numerous Form CA-1’s. She acknowledged a
conversation with W.P. who questioned her regarding her absence on December 3, 2014 because
she believed that her time off work was for her birthday.

12

C.f. Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

13

A.J., Docket No. 12-0548 (issued November 16, 2012).

14

J.S., Docket No. 15-1618 (issued March 7, 2016).

15

5 U.S.C. § 8122(a); section 10.100(b) of OWCP regulations also provides that for injuries sustained on or after
September 7, 1974, a notice of injury must be filed within three years of the injury. 20 C.F.R. § 10.100(b). See also
A.D., Docket No. 15-0732 (issued September 29, 2015).

7

In N.H.,16 OWCP denied a June 3, 2009 traumatic injury claim for failing to establish fact
of injury due to conflicting factual evidence surrounding appellant’s left knee injury when he
allegedly slipped on wet grass while delivering mail. A supervisor reported that appellant
informed him that he injured himself in a baseball slide. A postmaster also declared that appellant
advised him that he injured himself playing baseball the night before. A different supervisor
reported that he spoke to appellant on June 3, 2009 following the injury who informed him that
everything was okay. The Board reversed OWCP’s decision, finding that the evidence of record
was sufficient to establish that the June 3, 2009 incident occurred at the time, place, and in the
manner alleged. The Board explained that appellant denied having made such statements or
injuring himself while playing baseball. N.H. sought medical treatment within three days of the
June 3, 2009 employment incident, the June 6, 2009 emergency room report provided a history of
injury generally consistent with his account of events: that appellant slipped on wet grass while
delivering mail three days prior, and the record contained no contemporaneous factual evidence to
establish that the claimed incident did not occur as alleged.17 The Board found that, under the
circumstances of the case, appellant’s allegations were not refuted by strong or persuasive
evidence.18
Similarly, in this instance, the Board finds that the allegations made by the employing
establishment does not render the claim factually deficient.19 Appellant denied making the
statement alleged by the employing establishment and provided further explanation as to the
conversation held with W.P. on December 13, 2014. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.20 Despite appellant’s delay in notifying her
supervisor on the date of injury, appellant sought medical treatment just one day following the
employment incident as evidenced by Ms. Bloomfield’s December 16, 2014 report. She submitted
a narrative statement to the employing establishment just two days following the incident on
December 17, 2014 describing the work-related injury. Furthermore, the medical evidence of
record also provides a history of injury generally consistent with appellant’s account of events.
Dr. Polavarapu’s CA-17 forms described the December 15, 2014 employment incident, noting
history of lifting three bags at work and excessive overtime requiring 13 hours of work that day.
Dr. Drukman’s reports also discussed the December 15, 2014 employment incident, noting that
appellant stood during 13 hours at work and sustained her injury while pulling a bag towards the
end of her shift. Given the above, the Board finds that her allegations were not refuted by strong

16

Docket No. 10-1434 (issued January 24, 2011).

17

See Thelma Rogers, 42 ECAB 866 (1991).

18

Supra note 16.

19

Id.

20

Caroline Thomas, 51 ECAB 451 (2000).

8

or persuasive evidence.21 Appellant has alleged with specificity that the incident occurred at the
time, place, and in the manner alleged.22
The Board notes that OWCP emphasized the medical reports documenting a preexisting
lumbar injury as support for failing to establish the factual portion of appellant’s claim. However,
whether appellant’s lumbar condition is work related is a medical question which must be
addressed, and does not negate the possible occurrence of the December 15, 2014 employment
incident. There is no requirement that the federal employment be the only cause of her injury. If
work-related exposures caused, aggravated, or accelerated appellant’s condition, she is entitled to
compensation.23
The Board finds that appellant adequately described the circumstances of the December 15,
2014 employment incident. As such, the Board finds that the first component of fact of injury, the
claimed incident, occurred as alleged.24
Given that appellant has established the December 15, 2014 employment incident, the
question becomes whether this incident caused an injury.25 Thus, the Board will set aside OWCP’s
July 28, 2016 decision and remand the case for further development of the medical evidence.26
Following this and other such development as deemed necessary, OWCP shall issue a de novo
final decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

21

Supra note 13.

22

Id.

23

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

24

James R. Flint, Docket No. 05-0587 (issued June 10, 2005).

25

See Willie J. Clements, 43 ECAB 244 (1991).

26

T.F., Docket No. 12-0439 (issued August 20, 2012).

9

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2016 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion.
Issued: November 13, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANPORTATION SECURITY
ADMINISTRATION, Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1753
Issued: August 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 29, 2009 appellant filed a timely appeal from an April 6, 2009 overpayment
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $17,316.10 from April 13, 2008 through January 17, 2009, because his compensation
was not adjusted to reflect his wage-earning capacity as plant protection superintendent;
(2) whether appellant is entitled to waiver of recovery of the overpayment; and (3) whether the
Office properly directed recovery at the rate of $400.00 every four weeks from his continuing
compensation.

FACTUAL HISTORY
On June 20, 2005 appellant, then a 33-year-old federal air marshal, injured his neck
during cardiopulmonary resuscitation (CPR) training. The Office accepted the claim for a
cervical strain and herniated disc. It authorized cervical fusion surgery, which was performed on
January 26, 2006. Appellant was placed on the periodic rolls in receipt of wage loss for total
disability.
In a September 29, 2006 report Dr. Thomas A. Sweasey, an attending Board-certified
neurosurgeon, reported that appellant had 10 percent impairment of his right upper extremity.
His reports noted sensory loss involving the C5 nerve root. Dr. Sweasey reported that appellant
experienced some neck pain with activity but was at a point where he could return to work, if it
was desk work. On January 17, 2007 appellant filed a claim for a schedule award.1
On July 20, 2007 appellant was referred to Sabrena Bagby for vocational rehabilitation
based on the determination of Dr. Sweasey that he was capable of performing sedentary work
with restrictions. In a January 23, 2008 report, Ms. Bagby identified the constructed position of
plant protection superintendent as within the sedentary strength category, consistent within his
work restriction and qualifications and reasonably available in his local labor market. She noted
that appellant chose to attend law school full time and declined rehabilitation services.
In a letter dated February 20, 2008, the Office proposed to reduce appellant’s wage-loss
compensation on the grounds that the medical and factual evidence established that he was no
longer totally disabled. Appellant was found partially disabled with the capacity to earn wages
in the constructed position as a plant protection superintendent. The Office determined that he
had a 37 percent wage-earning capacity of $576.87 and that it resulted in a weekly compensation
rate of $763.69. Appellant was advised to submit evidence if he disagreed with the proposed
reduction. He did not respond.
In a March 26, 2008 decision, the Office adjusted appellant’s compensation benefits to
reflect his wage-earning capacity as a plant protection superintendent effective April 13, 2008.
The record contains a log of compensation paid from April 13, 2008 through
January 17, 2009. Starting April 13, 2008, the Office did not reduce appellant’s compensation to
reflect the wage-earning capacity decision. Appellant received wage-loss benefits in the amount
of $46,783.60 but was only entitled to receive $29,467.50, the difference reflecting an
overpayment in the amount of $17,316.10.
In a February 5, 2009 notice, the Office advised appellant of its preliminary
determination that an overpayment of compensation of $17,316.10 was created as he was paid
compensation for total disability from April 13, 2008 through January 17, 2009. Appellant was
1

Appellant was referred to Dr. Surendrapal Singh Mac, a Board-certified orthopedic surgeon. On June 14, 2007
he found four percent sensory impairment and seven percent motor impairment of the right arm based on
radiculopathy involving the C7 and C8 nerve roots. Following review by an Office medical adviser on June 17,
2009 the Office issued a schedule award for eight percent impairment of the right arm. On appeal, appellant did not
seek review of the June 26, 2009 schedule award and it is not before the Board in this appeal.

2

only entitled to wage loss at the reduced rate set forth in the wage-earning capacity
determination. The Office found that he was at fault in the creation of the overpayment because
he accepted payments which he knew or should have known to be incorrect. It notified appellant
that he had the right to submit evidence or argument regarding the overpayment and the
preliminary finding of fault within 30 days.
On February 25, 2009 appellant submitted an overpayment recovery questionnaire (Form
OWCP-20). He listed total monthly income of $3,900.00, total assets of $61,660.00 and total
monthly expenses of $4,530.00. The monthly expenses included $1,500.00 for rent or mortgage,
$1,000.00 for food, $200.00 for clothing, $525.00 for utilities and $1,655.00 in miscellaneous
expenses. Appellant noted that the $3,800.00 monthly income from his spouse would cease
June 1, 2009 as she had been laid off from her job. He requested review of the written record.
In a March 25, 2009 memorandum, the Office noted that appellant had monthly income
of $3,800.00 from his wife’s salary, $2,926.35 in wage-loss compensation payments and $100.00
in other income or total monthly income of $6,826.35. At the conference he informed the Office
that his wife was being laid off from her job effective June 1, 2009. Monthly, expenses included
$1,1500.00 mortgage and insurance, $680.00 for food, $370.00 in utilities, $200.00 for clothing,
$380.00 for an automobile loan, $80.00 for automobile insurance and $250.00 for gas or total
monthly expenses of $3,352.50.2 Other assets included $100.00 cash on hand, $1,500.00 in a
checking account, $60.00 in a savings account and $60,000.00 in other savings, a total of
$61,660.00. The claims examiner noted that appellant borrowed approximately $11,000.00 in
student loans a semester to attend law school. She found that appellant had a total asset balance
of $52,700.00 ($61,660.00 less $8,960.00, the exemption for three people). The claims examiner
found that he had $3,373.85 left over after monthly expenses, including his wife’s salary and a
negative balance of $426.153 without his wife’s income. Appellant’s contention that he thought
the additional compensation was for a schedule award was not found credible. Therefore, he was
found at fault in the creation of the overpayment and waiver was not possible.
In an April 6, 2009 decision, the Office found that an overpayment of $17,316.10 was
created as appellant received compensation for total disability from April 13, 2008 through
January 17, 2009 when he was only entitled to wage loss at the reduced wage-earning capacity
rate. It found that appellant was at fault in the creation of the overpayment and it was not subject
to waiver. The Office directed recovery of the overpayment at the rate of $400.00 every 28 days
from his continuing compensation payments.

2

The claims examiner reduced appellant’s monthly claim for food and utility expenses. Appellant’s claim of
$1,000.00 for food exceeded the average monthly food expenditure required for a family of three and was reduced to
$680.00. The Office also reduced appellant’s claim of $525.00 in monthly utilities to $370.00. It disallowed
$150.00 for cable TV, but allowed $80.00 for telephone. The Office reduced appellant’s monthly expenditure of
$100.00 for internet access to $50.00 per month.
3

The Office made a mathematical error in its calculation of the available income when it subtracted appellant’s
monthly income minus his wife’s income when it deducted his monthly expenses. $3,026.35 (monthly income
including wife’s income) less $3,352.50 (monthly expenses) = -$326.15.

3

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act 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 duty.4 When an overpayment has been made to an individual
because of an error of fact or law, adjustments shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.5
ANALYSIS -- ISSUE 1
On March 26, 2008 the Office issued a loss of wage-earning capacity determination
based on appellant’s ability to perform the duties of a plant protection superintendent. It found
that he was no longer totally disabled based upon the opinion of his attending physician,
Dr. Sweasey. A vocational rehabilitation counselor identified the position of plant protection
superintendent, finding that it was within the sedentary strength category and appellant’s work
restrictions. Appellant qualified for the position based on his education and experience and it
was reasonably available in his local labor market. The Office determined that he had a
37 percent wage-earning capacity of $576.87 a week and adjusted his wage loss to reflect his
partial disability. Appellant was notified that his wage-loss benefits would be reduced effective
April 13, 2008 and the rate at which he would receive further compensation. The record reflects,
however, that the Office continued to issue payments for wage loss after that date at the rate of
total disability.
On February 5, 2009 the Office made a preliminary determination that appellant received
an overpayment of $17,316.10. The overpayment occurred because he received wage-loss
benefits for total disability from April 13, 2008 through January 17, 2009 rather than at the
reduced rate under the March 26, 2008 wage-earning capacity determination. Appellant received
compensation in the amount of $46,783.60 but was only entitled to compensation in the amount
$29,467.50, based on his 37 percent wage-earning capacity. This created an overpayment of
$17,316.10. The Board finds that the fact and amount of overpayment are established in this
case. Appellant received an overpayment of $17,316.10 due to his receipt of wage-loss benefits
for this period at total disability instead of at the rate reflecting his wage-earning capacity.
On appeal, appellant contends that he never agreed with the amount of salary as found by
the vocational counselor under the wage-earning capacity determination. The Board notes that
the March 26, 2008 decision is not presently on appeal.6 The Office set forth findings on how
the overpayment was created and provided this to appellant with the preliminary notice of
overpayment. It properly determined the amount of the overpayment from April 13, 2008
through January 17, 2009. Appellant also contends that he did not receive the Office’s
4

5 U.S.C. § 8102(a). See also J.O., 60 ECAB ___ (Docket No. 09-264, issued August 10, 2009).

5

Id. at § 8129(a). See also J.S., 58 ECAB 515 (2007); Joan Ross, 57 ECAB 694 (2006).

6

Appellant did not file for review of the March 26, 2008 wage-earning capacity determination within one year of
issuance. Therefore, it is not before the Board in the present appeal. See 20 C.F.R. §§ 501.2(c) and 501.3. The
Board’s determination in this case does not preclude him from seeking modification of the wage-earning capacity
determination before the Office.

4

March 26, 2008 loss of wage-earning capacity decision. The Office mailed the March 26, 2008
decision to his address of record. Appellant did not establish that his address changed or that the
address of record used by the Office was incorrect. In the absence of evidence to the contrary, a
letter properly addressed and mailed in the due course of business, such as in the course of the
Office’s daily activities, is presumed to have been received at the mailing address in due course.
This is known as the mailbox rule.7 As the decision was properly mailed to appellant’s address
of record, there is no evidence to substantiate his allegation of nonreceipt on appeal.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act9 provides: 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 the Act or would be against equity and
good conscience.10 Waiver of an overpayment is not permitted unless the claimant is without
fault in creating the overpayment.11
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.12
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $17,316.10 overpayment, the Office
relied on the third standard: that he knew or should have known that the payments made from
April 13, 2008 through January 17, 2009 were incorrect. Even though the Office may have been
negligent by making incorrect payments that did not reflect the March 26, 2008 wage-earning
capacity determination, this does not excuse a claimant from accepting payments he knew or
should know to be incorrect.13
The record clearly establishes that the Office originally notified appellant of its proposal
to reduce his wage-loss compensation on February 20, 2008. The reduction was made effective
7

C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009); Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

8

Id.

9

5 U.S.C. § 8101 et seq.

10

Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

11

L.J., 59 ECAB ___ (Docket No. 07-1844, issued December 11, 2007); Tammy Craven, 57 ECAB 689 (2006);
Norman F. Bligh, 41 ECAB 230 (1989).
12

20 C.F.R. § 10.433; see B.H., 60 ECAB ___ (Docket No. 09-292, issued September 1, 2009); Steven R.
Cofrancesco, 57 ECAB 662 (2006).
13

E.V., 59 ECAB ___ (Docket No. 07-1733, issued December 11, 2007); William E. McCarty, 54 ECAB
525 (2003).

5

on April 13, 2008 following issuance of the March 26, 2008 decision. As noted, the record
establishes that he continued to receive compensation for wage loss at the rate for total disability
for the following nine months. The wage-earning capacity determination clearly stated that
appellant’s compensation was reduced 37 percent effective April 13, 2008.
As noted, the Board has addressed his contention that he did not receive the March 26,
2008 decision. Appellant also contends that he believed that the benefits paid and received were
for a schedule award. The Board finds that his contention is not reasonable in light of the fact
that no schedule award was issued in this case until June 26, 2009, some five months after the
end of the overpayment. This is not a case of receipt of dual benefits for wage loss and under a
schedule award for impairment. There is no factual evidence of record on which appellant would
have a reasonable basis to continue to accept payment of an amount equal to total disability, as
was paid. The Board finds that he knew or should have known that the benefits he accepted
were incorrect as he was not entitled to wage-loss compensation for total disability as of
April 13, 2008, after notification that his benefits were being reduced.
LEGAL PRECEDENT -- ISSUE 3
Whenever an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to 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
resulting hardship upon such individual.14
ANALYSIS -- ISSUE 3
The Office determined that the overpayment would be recovered by withholding $400.00
from appellant’s continuing compensation checks until the payment was repaid in full.
The Board finds that the Office gave due regard to the relevant factors in setting the rate
of recovery of $400.00 every 28-day compensation period. Appellant argued that he relied on
the salary of his wife which would cease on or about June 1, 2009. The record reflects that the
Office considered his monthly income and expenses and found that he had total assets of
approximately $52,700.00. The Board finds that, by directing recovery of $400.00 every 28 days
from appellant’s continuing compensation, it set the rate of recovery at an amount so as to
minimize any hardship.15 On appeal, appellant cited the Office’s regulations at 10.436
contending that he needed all of his current income to meet current ordinary and necessary living
expenses. The Board notes that the section cited by him pertains to the consideration of waiver.
As appellant was found at fault in the creation of the overpayment, he is not eligible for waiver
14

20 C.F.R. § 10.321(a)

15

See Steven R. Cofrancesco, 57 ECAB 662 (2006). The Board is not unmindful as to appellant’s receipt of
future compensation payments. Under the June 29, 2009 schedule award, appellant’s benefits were adjusted and he
was paid $4,630.56 from June 7 to July 4, 2009 and would receive $4,677.36 every four weeks until the expiration
of the award on November 28, 2009. This was based on his effective pay rate as of April 28, 2007 and not on the
loss of wage-earning capacity determination, under which he received approximately $2,946.07.

6

and this section of the regulations is not applicable to his appeal. The Office collection of the
overpayment was determined under section 10.441.
CONCLUSION
The Board finds that appellant received an overpayment of $17,316.10 for which he was
at fault.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, RIVER DISTRICT
POST OFFICE, Portland, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0297
Issued: October 23, 2019

Case Submitted on the Record

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

JURISDICTION
On November 20, 2018 appellant filed a timely appeal from a September 4, 2018 merit
decision and an October 26, 2018 nonmerit 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
Appellant also filed a timely request for oral argument. After exercising its discretion, by order dated September 4,
2019, the Board denied his request finding that his arguments could be adequately addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 19-0297 (issued
September 4, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the October 26, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $771.36 for the period November 11, 2017 through April 28, 2018; (2) whether OWCP
properly denied waiver of recovery of the overpayment; (3) whether OWCP properly required
recovery of the overpayment by deducting $50.00 from appellant’s continuing compensation
benefits, every 28 days; and (4) whether OWCP’s Branch of Hearings and Review properly denied
appellant’s September 24, 2018 request for a prerecoupment hearing.
FACTUAL HISTORY
On December 21, 2010 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 14, 2010 he sustained right wrist, right leg, and
lower back injuries when he slipped and slid down steps while delivering mail. He stopped work
on December 14, 2010. OWCP accepted the claim for a right wrist sprain, right ulnar nerve lesion,
right pelvic region and thigh joint disorders, and closed lumbar vertebra dislocation.
By letter dated September 4, 2014, OWCP notified appellant that he was placed on the
periodic compensation rolls effective August 11, 2014 with regular payments beginning
August 24, 2014. The letter indicated that deductions from the regular payments were being made
for basic life insurance in the amount of $17.10 and $126.50 for optional life insurance. OWCP
advised appellant that, if he had optional life insurance or health insurance benefits coverage, and
no deduction was made that he should contact OWCP as he was responsible for those premiums.
In an April 18, 2018 letter, the Office of Personnel Management (OPM) advised OWCP
that appellant, as a compensationer, was eligible to continue coverage under the Federal
Employees’ Group Life Insurance (FEGLI) Program. It further notified OWCP that he had elected
postretirement basic life insurance (PRBLI) coverage effective November 11, 2017, with no
reduction.4
By notice dated June 29, 2018, OWCP advised appellant of its preliminary determination
that he had received an overpayment of compensation in the amount of $771.36 because PRBLI
premiums had not been properly deducted from his compensation payments for the period
November 11, 2017 through April 28, 2018. It provided a calculation of the overpayment, and
found that he was not at fault in its creation.5 OWCP advised appellant of his right to request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing,
if he objected to the decision or requested waiver of the recovery of the overpayment. It requested
that he complete an overpayment recovery questionnaire (Form OWCP-20) and submit supporting

4

OPM attached a Standard Form 2818, signed by appellant on January 23, 2018, in which he elected continuation
of PRBLI benefits.
5

OWCP provided a memorandum for the file explaining the overpayment calculation. It noted that, for the pe riod
November 11, 2017 through April 28, 2018, no PRBLI premiums were deducted from appellant’s compensation
benefits.

2

financial documentation. OWCP mailed the preliminary determination to appellant’s last known
address and afforded him 30 days to provide the requested information.
On August 9, 2018 OWCP received appellant’s overpayment action request form, dated
July 16, 2018, in which he requested a telephone conference. Appellant also indicated that he
disagreed with the fact and amount of the overpayment, believed the overpayment occurred
through no fault of his own, and requested waiver of recovery of the overpayment. He submitted
an overpayment recovery questionnaire form (Form OWCP-20), in which he noted monthly
income of $994.00 from his spouse 6 and $11,870.00 in funds. Monthly expenses were listed
totaling $3,384.00 which included $1,847.00 for rent or mortgage, $360.00 for food, $150.00 for
clothing, $264.00 for utilities, $663.00 for other expenses, and $100.00 monthly payment to NW
Priority Credit Union.7
A September 4, 2018 memorandum of conference, noted an increase in certain expenses
with current expenses listed as $1,997.00 for rent and property tax, $175.00 for food, and $364.00
for utilities. Appellant also indicated that he had $663.00 in miscellaneous expenses which
included home and automobile insurance. 8
By decision dated September 4, 2018, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $771.36 for the period
November 11, 2017 through April 28, 2018, because OPM PRBLI premiums were not properly
deducted from his compensation payments for that period. It found that he was not at fault in the
creation of the overpayment, but denied waiver of recovery because the evidence did not establish
that recovery of the overpayment would cause undue hardship or defeat the purpose of FECA.
OWCP directed recovery of the overpayment by deducting $50.00 every 28 days from appellant ’s
continuing compensation payments.
On October 2, 2018 OWCP received an overpayment action request form, dated
September 24, 2018, in which appellant requested a prerecoupment hearing. Appellant asserted
that he believed that PRBLI premium payments were the responsibility of OPM. He also attached
a competed overpayment recovery questionnaire form.
By decision dated October 26, 2018, OWCP’s Branch of Hearings and Review denied
appellant’s request, finding that he did not request a hearing on the preliminary overpayment
determination, and that the final overpayment determination was not subject to a hearing pursuant
to 5 U.S.C. § 8124(b).

6

Appellant noted that he received OWCP compensation, but did not list the amount. The record reveals he received
a net amount of $2,726.76 for the period April 29 through May 26, 2018.
7

Appellant listed an outstanding balance of $4,709.00

8
Appellant stated that the expenses had increased because his 31-year-old son had moved in with appellant and his
spouse.

3

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. 9
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. 10
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options. 11 The coverage for basic life
insurance is effective unless waived12 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.13
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his compensation, so that
his or her life insurance coverage could be continued without reduction. Regulations at 5 C.F.R.
§ 870.701 (December 5, 1980) provided that an eligible employee had the option of choosing no
life insurance; Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by two percent a month after
age 65 with a maximum reduction of 75 percent; Option B -- basic coverage (at an additional
premium) subject to continuous withholdings from compensation payments that would be reduced
by one percent a month after age 65 with a maximum reduction of 50 percent; or Option C -- basic
coverage subject to continuous withholdings from compensation payments with no reductions after
age 65 (at a greater premium).14
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. 15
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $771.36 for the period November 11, 2017 through
April 28, 2018.

9

5 U.S.C. § 8102(a).

10

Id. at 8129(a).

11

Id. at § 8702(a).

12

Id. at § 8702(b).

13

Id. at § 8707.

14

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

15
5 U.S.C. § 8707(d). See R.W., Docket No. 19-0451 (issued August 7, 2019); D.H., id.; Keith H. Mapes, 56 ECAB
130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

4

OPM notified OWCP on April 18, 2018 that appellant had elected PRBLI coverage with
no reduction effective November 11, 2017. OWCP began deducting the proper amount for PRBLI
coverage from appellant’s wage-loss compensation on April 29, 2018. It calculated the amount of
the resulting overpayment for the period November 11, 2017 through April 28, 2018 to be $771.36.
The record contains a memorandum for the file explaining the overpayment calculation and how
the overpayment occurred. As noted, when an underwithholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error. 16
The Board finds that OWCP properly calculated the amount of the overpayment and
provided a clear and detailed explanation of the fact and amount of the overpayment. As OWCP
failed to properly deduct PRBLI premiums from November 11, 2017 through April 28, 2018,
appellant received an overpayment of compensation of $771.36 during this period. 17
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA18 provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience.” Thus, a
finding that appellant was without fault does not automatically result in waiver of recovery of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience. 19
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 20 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds and
certificates of deposits. 21 Nonliquid assets include, but are not limited to, the fair market value of
an owner’s equity in property such as a camper, boat, second home, and furnishings and supplies. 22
16

Id.

17

J.C., Docket No. 17-1791 (issued February 28, 2018).

18

5 U.S.C. § 8129(1)-(b); A.C., Docket No. 18-1550 (issued February 21, 2019); see D.C., Docket No. 17-0559
(issued June 21, 2018).
19

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

20

20 C.F.R. § 10.436. OWCP’s procedures provide that assets must not exceed a resource base of $6,200.00 for
an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4(a) (September 2018).
21

Id.

22

Id.

5

Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse. 23 To establish that a valuable right has been relinquished, it must be
shown that the right was in fact valuable, that it cannot be regained and that the action was based
chiefly or solely in reliance on the payments or on the notice of payment. 24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
OWCP found that appellant was without fault in the creation of the overpayment of
compensation. The fact that a claimant is without fault in creating an overpayment does not
preclude OWCP from recovering the overpayment. 25 Waiver is only possible if recovery would
defeat the purpose of FECA or would be against equity and good conscience. 26 In order to establish
that repayment of the overpayment would defeat the purpose of FECA, appellant must show that
he requires substantially all of his income to meet current ordinary and necessary living expenses
and that his assets do not exceed the established limit as determined by OWCP procedures. 27
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. Based upon appellant’s July 16,
2018 overpayment recovery form and the record, OWCP found that he had monthly expenses of
$3,384.00 and monthly income of $3,720.76. While during the telephone conference appellant
indicated that his food bill had increased to $175.00, his rent and property tax had increased to
$1,997.00, utilities had increased to $364.00, and he had miscellaneous monthly expenses of
$663.00 as well as a $100.00 monthly payment to NW Priority Credit union, resulting in total
monthly expenses of $3,659.00, no corroborating financial evidence was submitted. As
appellant’s monthly income exceeded his ordinary and necessary living expenses by more than
$50.00, he did not need substantially all of his income for ordinary and necessary living expenses. 28
Appellant also listed net assets in the amount of $11,870.00, which exceeds his resource base.
Additionally, the evidence of record does not demonstrate that recovery of the overpayment
would be against equity and good conscience. Appellant did not submit any evidence that he had
relied upon the incorrect payments to his detriment or that he would experience severe financial

23

20 C.F.R. § 10.437.

24

Id. at § 10.437(b)(1).

25

D.H., supra note 14.

26

J.C., Docket No.19-0122 (issued June 11, 2019); A.C., supra note 18; see also E.K., Docket No. 18-0587 (issued
October 1, 2018).
27

Supra note 20.

28

See J.C., supra note 26; A.C., supra note 18; see also M.P., Docket No. 18-0902 (issued October 16, 2018).

6

hardship attempting to repay the debt. 29 Consequently, OWCP properly denied waiver of recovery
of the overpayment.
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. 30 Section
10.441(a) of the regulations31 provides:
“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. 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.”32
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$50.00 every 28 days from appellant’s continuing compensation payments.
The Board finds that OWCP gave due regard to the financial information appellant
submitted as well as the factors set forth in section 10.441. As his monthly income exceeded his
ordinary and necessary expenses by more than $50.00, OWCP did not abuse its discretion in
requiring recovery by deducting $50.00 every 28 days from each of his continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 4
OWCP’s regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment. 33 Failure to request the prerecoupment hearing within 30 days shall
constitute a waiver of the right to a hearing. 34 The only right to a review of a final overpayment

29

Supra note 23.

30

R.W., Docket No. 19-0451 (issued August 7, 2019); C.A., Docket No. 18-1284 (issued April 15, 2019); Albert
Pinero, 51 ECAB 310 (2000) Lorenzo Rodriguez, 51 ECAB 295 (2000).
31

20 C.F.R. § 10.441(a).

32

Id.

33

20 C.F.R. § 10.432. See D.H., supra note 14; E.M., Docket No. 17-1502 (issued February 22, 2019).

34

Id.

7

decision is with the Board. 35 The hearing provisions of section 8124(b) of FECA 24 do not apply
to final overpayment decisions. 36
ANALYSIS -- ISSUE 4
The Board finds that OWCP’s Branch of Hearings and Review properly denied appellant’s
September 26, 2018 request for a prerecoupment hearing.
OWCP’s June 29, 2018 preliminary determination of overpayment provided appellant with
a right to request a prerecoupment hearing within 30 days. The record shows that OWCP properly
mailed its June 29, 2018 preliminary determination to appellant’s last known address. Appellant
requested a telephone conference, which was held on September 4, 2018. By decision dated
September 4, 2018, OWCP finalized its preliminary overpayment determination. On October 2,
2018 OWCP received an overpayment action request form dated September 24, 2018 from
appellant contesting the overpayment and addressed to OWCP’s Branch of Hearings and Review.
The Board finds that as appellant’s request form was mailed to the Branch of Hearings and
Review, it was properly treated as a request for a hearing. OWCP’s regulations, however, provide
that when a final overpayment decision is issued, there is no right to a hearing or a review of the
written record, and OWCP does not have discretion to grant such a request. The only right to
appeal is with the Board. 37 Appellant’s September 24, 2018 request for a prerecoupment hearing
was made after the final overpayment determination. Therefore, the Board finds that OWCP
properly denied appellant’s request for a prerecoupment hearing.
CONCLUSION
The Board finds that an overpayment of compensation was created in the amount of
$771.36 for the period November 11, 2017 through April 28, 2018. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment, and properly required recovery by
deducting $50.00 every 28 days from appellant’s continuing compensation payments.
Additionally, OWCP’s Branch of Hearings and Review properly denied appellant’s September 24,
2018 request for a prerecoupment hearing.

35

20 C.F.R. § 10.440(b).

36

5 U.S.C. § 8124(b).

37

Supra note 35.

8

ORDER
IT IS HEREBY ORDERED THAT the October 26 and September 4, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9