United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO HEALTHCARE SYSTEM,
San Diego, CA, Employer
__________________________________________

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

Docket No. 19-1943
Issued: June 1, 2020

Case Submitted on the Record

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

JURISDICTION
On September 23, 2019 appellant filed a timely appeal from a May 17, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 14, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 4, 2018 appellant, then a 50-year-old health technician, filed a traumatic injury
claim (Form CA-1) alleging that on September 17, 2018 he reaggravated a left knee condition
when a patient he was helping stand up fell to the ground while in the performance of duty. He
did not stop work.
In an October 15, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In an October 29, 2018 letter, Dr. Michael Cecilio, a Board-certified family practitioner,
noted that appellant had been experiencing left knee pain after supporting a patient that collapsed
when unable to stand on his own on September 17, 2018. In an accompanying after-visit summary,
Dr. Cecilio diagnosed left knee joint pain and referred appellant to an orthopedics department.
An October 31, 2018 after-visit summary indicated that appellant saw Dr. Joseph Carney,
a Board-certified orthopedic surgeon, for left knee joint pain.
By decision dated November 26, 2018, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish a valid medical diagnosis causally related
to the accepted September 17, 2018 employment incident.
On December 18, 2018 appellant requested reconsideration.
April 28 and November 20, 2018 magnetic resonance imaging (MRI) scans of appellant’s
left knee were submitted to the record and demonstrated mild versus complex medical meniscus
tearing.
In a December 6, 2018 report, Dr. Carney noted that appellant’s left knee pain had not
improved since his last visit. He reviewed left knee MRI scans and diagnosed symptomatic left
knee complex meniscal tear with potential insufficiency injury to the overlying medial femoral
condyle. Dr. Carney opined that when comparing the November MRI scan findings to April MRI
scan findings, the acute worsening of appellant’s symptoms may have been due to the employment
incident in September.
By decision dated March 14, 2019, OWCP modified its November 26, 2018 decision
finding that the medical evidence of record provided a valid medical diagnosis, but was insufficient
to establish that the diagnosed condition was causally related to the accepted September 17, 2018
employment incident.
On April 22, 2019 appellant requested reconsideration.
In a March 21, 2019 letter, Dr. Carney indicated that appellant had a preexisting
degenerative meniscus tear and left knee osteoarthritis that was aggravated by the employment
incident. He opined that after reviewing MRI scans of appellant’s left knee, it was likely on a

2

more probable than not basis, that the employment incident was responsible for appellant’s
worsening left knee conditions.
By decision dated May 17, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that he had not submitted anything
in support of his request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, nor did he advance a new and relevant legal argument not
previously considered. Accordingly, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
However, with respect to the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3), appellant submitted a March 21, 2019 letter authored by Dr. Carney. The letter
2

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); W.C., 59 ECAB 372 (2008).

3
20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 19-1169 (issued February 7, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
4

Id. at § 10.607(a); see Y.H., Docket No. 18-1618 (issued January 21, 2020).

5

Id. at § 10.608(a); see S.B., Docket No. 19-1320 (issued January 17, 2020); M.S., 59 ECAB 231 (2007).

6
Id. at § 10.608(b); see N.C., Docket No. 19-1378 (issued February 13, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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indicated that appellant had a preexisting degenerative meniscus tear and left knee osteoarthritis
that was aggravated by the employment incident.
FECA provides that OWCP shall determine and make findings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.7 Since
the Board’s jurisdiction of a case is limited to reviewing that evidence which is before OWCP at
the time of its final decision,8 it is necessary that OWCP review all evidence submitted by a
claimant and received by OWCP prior to issuance of its final decision. As the Board’s decisions
are final as to the subject matter appealed,9 it is crucial that all evidence relevant to that subject
matter which was properly submitted to OWCP prior to the time of issuance of its final decision
be addressed by OWCP.10
The Board finds that OWCP improperly failed to consider all the relevant evidence
submitted by appellant in denying his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).11 Therefore, the case is remanded to OWCP for consideration of
the evidence he submitted in connection with his reconsideration request, to be followed by the
issuance of an appropriate decision regarding his reconsideration request.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

7

5 U.S.C. § 8124(a); 20 C.F.R. § 10.126; see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert
Jones, Jr., 57 ECAB 467 (2006).
8
R.P., Docket No. 19-0301 (issued August 21, 2019); K.L., Docket No. 16-1341 (issued December 20, 2016); E.Z.,
Docket No. 14-0274 (issued March 16, 2015); Linda Johnson, 45 ECAB 439 (1994).
9

Id.

10

I.L, Docket No. 17-0684 (issued July 18, 2017); see E.P., Docket No. 14-0278 (issued February 26, 2014); see
also William A. Couch, 41 ECAB 548, 553 (1990).
11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the May 17, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: June 1, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Memphis, AR, Employer
__________________________________________

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

Docket No. 09-187
Issued: July 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 27, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ April 11, 2008 decision denying his claim for compensation and a
September 22, 2008 decision denying his request for reconsideration.
Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a traumatic injury on August 25, 2007 in the performance of duty; and (2) whether the
Office properly denied his request for reconsideration without further merit review.
FACTUAL HISTORY
On February 29, 2008 appellant, then a 29-year-old carrier, filed a traumatic injury claim
alleging that on August 25, 2007 heat at work caused him to sustain heat exhaustion with muscle
cramps in his back and nausea. He did not stop work.

On March 6, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit additional evidence. In
particular, it requested a medical report with a physician’s opinion on how the reported work
incident caused or aggravated the claimed injury.
In an April 11, 2008 decision, the Office denied appellant’s claim for compensation
finding that, although the evidence supported that the claimed event occurred, there was no
medical evidence that provided a diagnosis which could be connected to the events.
Appellant requested reconsideration on September 4, 2008.
In a September 22, 2008 decision, the Office denied appellant’s reconsideration request
without a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act, 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 and/or specific condition for which compensation is claimed are
causally related to the employment injury. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007).

3

Id.

2

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS -- ISSUE 1
Appellant alleges that he sustained heat exhaustion, back muscle cramps and nausea at
work on August 25, 2007. The Office accepted that the claimed events occurred. However,
appellant has not submitted any medical evidence to establish that the August 25, 2007
employment incident caused or aggravated a diagnosed medical condition.
On March 6, 2008 the Office advised appellant of the medical evidence necessary to
establish his claim and allowed him 30 days to submit such evidence. However, appellant did
not submit any medical evidence that was received prior to the Office’s April 11, 2008 decision.
The record does not contain any medical reports from a physician explaining how a specific job
duty performed on August 25, 2007 caused or aggravated heat exhaustion, back muscle cramps
or nausea. As noted, part of a claimant’s burden of proof includes the submission of rationalized
medical evidence addressing whether there is a causal relationship between the employee’s
diagnosed condition and employment factors. Consequently, appellant did not provide the
medical evidence required to establish a prima facie claim for compensation.5
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.7
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration consists of an appeal request form with a
checkmark next to “reconsideration.” However, he did not satisfy any of the three criteria
required to reopen a case for merit review. Appellant’s request did not show that the Office
erroneously applied the law because he did not specify any point of law that was erroneously
applied or interpreted. His request form also did not advance any new relevant legal arguments
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

See A.C., 60 ECAB ___ (Docket No. 08-1453 issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390
(2005); Richard H. Weiss, 47 ECAB 182 (1995).
6

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

7

20 C.F.R. § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

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not previously considered by the Office. In addition, appellant did not submit any medical
evidence, which is necessary to determine the underlying issue of whether he has submitted
sufficient medical evidence establishing a causal relationship between his work duties and his
diagnosed condition. As a result, no relevant and pertinent new evidence supports his request for
reconsideration.
Consequently, the Office properly denied appellant’s request for reconsideration without
further merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty. The Board also finds that the Office
properly denied appellant’s request for reconsideration without a merit review.8
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated September 22 and April 11, 2008 are affirmed.
Issued: July 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Appellant submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time the Office issued its final decision. See 20 C.F.R. § 501.2(c).

4


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

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-771
Issued: October 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 17, 2014 appellant, through her attorney, filed a timely appeal from two
January 24, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
regarding overpayments of compensation. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited her right
to compensation for the period May 11, 2007 through August 23, 2009 as she failed to report her
work activity; (2) whether OWCP properly found an overpayment of compensation in the
amount of $66,119.04 was created for this period; (3) whether appellant received an
overpayment of $11,810.44 for the period August 24, 2009 through March 9, 2013 because she
received compensation at the augmented rate when she had no eligible dependents; and
(4) whether OWCP properly found that appellant was at fault in the creation of the overpayments
and they were not subject to waiver.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 26, 2007 appellant, then a 44-year-old regular carrier, sustained injury when
she fell off a loading dock that was 33 inches high onto her back and leg. OWCP accepted the
claim for a tear of the right knee medial meniscus, right knee contusion and contusion of the
back. It authorized a right knee replacement. Appellant received continuation of pay and was
placed on the periodic compensation rolls as of May 11, 2007. She was paid wage-loss
compensation at the augmented rate of 75 percent as she claimed her daughter and a grandson as
dependents.2
In a June 7, 2007 letter, OWCP requested that appellant provide additional information to
determine whether her daughter was eligible for compensation beyond her 18th birthday. It
advised that compensation could continue to be paid on behalf of an unmarried child age 18 or
older who was either a full-time student or incapable of self-support. OWCP notified appellant
that the law prohibited the acceptance of compensation when a dependent was no longer eligible
and to notify it immediately. From the information reported on the CA-7 forms, appellant listed
the date of birth of her daughter as April 23, 1985 but originally reported the date of birth as
April 23, 1995. It appeared that she also had a grandson and requested that she provide copies of
a legal adoption judgment from the courts, if she legally adopted him.
In response, appellant stated that her daughter was born April 23, 1995. She submitted a
copy of a State of New York certification of birth listing that her daughter was born on
April 23, 1995. A February 28, 2005 order directing custody advised that appellant was granted
sole legal and physical custody of her grandson, born December 23, 2004.
Appellant received wage-loss compensation and submitted signed Forms EN1032 on
July 28, 2008, August 22, 2009 and September 13, 2010.3 Other forms undated but received
October 19, 2011 and October 14, 2012, claimed dependent status for her daughter and grandson
and, later, a granddaughter. On each of the forms, which require a claimant to report earnings
for the previous 15 months, she stated that she was not employed, self-employed and had not
performed any volunteer work.
In a September 4, 2009 letter, OWCP advised appellant that there was a discrepancy in
the evidence of record regarding whether her daughter was born in 1985 or 1995. It requested
that she verify her daughter’s date of birth by submitting the daughter’s birth certificate.
Appellant resubmitted her daughter’s birth certificate, which noted that she was born on
April 23, 1995.
An investigation conducted by the employing establishment’s Office of the Inspector
General for the period June 11, 2010 to January 13, 2011, found, in relevant part, that appellant
was gainfully employed during 2008 and 2009 cleaning lakefront rental properties for an upstate
New York real estate business. In a January 11, 2011 statement, Joy Geidel, Broker/Owner of
Heaven Realty noted that she would contact appellant by telephone when work was available.
2

A May 27, 2007 CA-7 form completed by appellant listed her daughter’s birthdate as April 23, 1985. Other
records listed the date of birth as April 23, 1995.
3

Appellant also claimed dependent status for a custodial granddaughter born September 5, 2006.

2

She provided copies of checks paid to appellant for cleaning services. The checks were dated
July 12 and 19 and August 2, 9 and 16, 2008, July 25 and 31 and August 8, 2009.
In an August 21, 2008 letter, appellant stated that her ex-husband had physical custody of
their daughter for the entire 2008-09 school year.
In a September 28, 2012 letter, OWCP advised appellant that she needed to clarify when
her daughter was born, as she initially indicated that her daughter’s date of birth was April 23,
1985 but listed on the Form CA-1032 that it was April 23, 1995. It also noted that appellant
claimed during the time compensation had been paid that her daughter lived with her but signed
a letter, which indicated that her daughter lived with her father during the 2008-09 school year.
OWCP requested that appellant provide the periods her daughter lived with her and address
whether she paid support to her ex-husband for any periods her daughter did not live with her. It
requested such information be submitted within 30 days or it would reduce her compensation to
the statuary 2/3 rate on the basis that she did not have an eligible dependent for augmented
compensation. No additional information was received.
On April 24, 2013 OWCP made a preliminary determination that appellant received an
overpayment of compensation for the period May 11, 2007 through March 9, 2013 for which she
was at fault. For the period May 11, 2007 through August 23, 2009, it advised that she was paid
compensation in the amount of $65,448.95 that was forfeited, as she had knowingly failed to
report earnings received for the work she performed during that period. For the period
August 24, 2009 through March 9, 2013, OWCP made a preliminary determination that appellant
was not entitled to compensation at the augmented rate as she did not have an eligible dependent.
For that period, the difference between compensation paid at the augmented rate $106,294.00
and compensation at the basic 2/3 rate $94,464.67 was $11,829.33 which represented the
overpayment amount. OWCP made a preliminary finding that appellant was at fault as she knew
or should have reasonably known that she was not entitled to compensation at the augmented
rate as she did not make support payments for her daughter during the 2008-09 school year. It
noted that the first payment for the beginning of the 2008 school year began on August 31, 2008
and her compensation payments were reduced to the 2/3 compensation rate effective
March 10, 2013. OWCP further advised that appellant’s grandson, whom she claimed as a
dependent and had legal custody, was not a dependent unless he was legally adopted. Appellant
was provided an overpayment recovery questionnaire and advised of her appeal rights.
On April 30, 2013 appellant’s representative requested a telephonic hearing before the
Branch of Hearings and Review. By decision dated November 27, 2013, the hearing
representative affirmed the finding of forfeiture. The case was remanded for further findings as
to how the amount of overpayment was calculated, to be followed by separate new preliminary
findings.
An overpayment calculation record pertaining to the forfeiture, dated December 6, 2013,
noted that appellant received gross compensation in the amount of $1,071.67 on May 25, 2007;
$972.82 on May 25, 2007; $974.25 on June 8, 2007; and 28 gross payments of $2,192.07 from
July 7, 2007 to August 1, 2009. This record also indicates that she received $2,192.07 for the
period August 2 through 29, 2009, but should have received $1,722.34 at a daily rate of $78.29
for 22 days from August 2 through 23, 2009. OWCP’s case management compensation history
record notes that the May 25, 2007 payment of $1,071.67 was cancelled.
3

By separate preliminary decisions dated December 6, 2013, OWCP found that appellant
received an overpayment in the amount of $11,810.44 because she received augmented
compensation after August 31, 2008 when she had no eligible dependent. It also found that she
received an overpayment in the amount of $66,119.04 because compensation paid from May 11,
2007 through August 23, 2009 was forfeited based on appellant’s failure to report her
employment activities and earnings as required.
By separate decisions dated January 24, 2014, OWCP finalized the overpayment of
compensation for the period May 11, 2007 through March 9, 2013. From May 11, 2007 through
August 23, 2009, it found that appellant had forfeited compensation of $66,119.04 as she did not
report earnings from employment during that period. For the period August 24, 2009 through
March 9, 2013, OWCP found an overpayment of $11,810.44 as she did not have any eligible
dependents and was not entitled to augmented compensation. It denied waiver as appellant was
found with fault in both overpayments.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that the Secretary of Labor may require a partially
disabled employee to report his or her earnings from employment or self-employment, by
affidavit or otherwise, in the manner and at the times the Secretary specifies. It states that an
employee who:
“(1) fails to make an affidavit or report when required; or
“(2) Knowingly omits or understates any part of his or her earnings forfeits his or
her right to compensation with respect to any period for which the affidavit or
report was required.”4
Section 10.5(g) of OWCP’s regulations define earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”5
In order to establish that a compensationer should forfeit the compensation received for
the periods covered by completed CA-1032 forms, the evidence must establish that he or she
knowingly omitted or understated his or her employment and earnings.6 As forfeiture is a
4

5 U.S.C. § 8106(b); see F.C., 59 ECAB 666 (2007).

5

20 C.F.R. § 10.5(g) (2011).

6

Robert R. Holmes, 49 ECAB 161 (1997); 20 C.F.R. § 10.5(n) (2011).

4

penalty, it is not enough merely to establish that there were underreported earnings from
employment. The inquiry is whether appellant knowingly omitted or understated his or her
earnings from employment for the periods covered by the CA-1032 forms. The term knowingly
as defined in OWCP’s implementing regulations and the Board precedent means with
knowledge; consciously; intelligently; willfully; intentionally.7 The language on CA-1032 forms
is clear and unambiguous in requiring a claimant to report earnings for the previous 15 months
from any employer, self-employment or a business enterprise in which he or she worked. The
forms further emphasize that severe penalties may be applied for failure to report all work
activities thoroughly and completely.8
ANALYSIS -- ISSUE 1
OWCP determined that appellant forfeited her right to compensation for the period
May 11, 2007 through August 23, 2009 in the amount of $66,119.04. Appellant signed EN1032
forms on July 28, 2008, August 22, 2009 and September 13, 2010. She stated that she was not
employed, self-employed and had not performed volunteer work on the forms, each of which
covered the preceding 15 months. The investigative report from the employing establishment,
which covered the period June 11, 2010 to January 13, 2011, determined that appellant
performed work for cleaning services during July and August 2008 and July and August 2009.
The evidence contained canceled checks made out to her to support that she performed services
for which she received earnings in July and August 2008 and July and August 2009. The checks
were dated July 12 and 19 and August 2, 9 and 16, 2008, July 25 and 31 and August 8, 2009. It
is clear from the record that appellant had unreported earnings from her employment activities
for the period July 2008 through August 2009.9
Appellant can be subject to the forfeiture provision of section 8106(b) only if she
knowingly failed to report earnings or employment. OWCP has the burden of proof to establish
that a claimant did, either with knowledge, consciously, willfully or intentionally, fail to report
earnings from employment.10 Although the penalty of forfeiture is to be narrowly applied, it is
applicable in light of a false declaration on an EN1032 form. Appellant worked for two months
in 2008 and two months in 2009. She signed two EN1032 forms, in which she certified that she
had no work or earnings. These forms advised appellant that she must report all employment
and all earnings from employment, self-employment and involvement in a business enterprise.
The forms clearly notified her that she could be subject to criminal prosecution for false or
evasive answers or omissions. One EN1032 form was signed on July 28, 2008; the second
EN1032 form was signed on August 22, 2009. Appellant engaged in work activities and had
earnings in July 2008 through August 2009 that were within the 15-month span of each
declaration. She is properly subject to the two periods of forfeiture based on her false
declarations in both EN1032 forms. This increases appellant’s forfeiture period from 15 months
to 26-plus months. This result is consistent with a proper application of the penalty provision.
The Board notes that appellant signed the 2009 EN1032 form on August 22, 2009 however
7

Christine C. Burgess, 43 ECAB 449 (1992).

8

A.C., Docket No. 11-1760 (issued April 13, 2012).

9

See Harold F. Franklin, 57 ECAB 387 (2006).

10

20 C.F.R. § 10.5(g) (2011).

5

OWCP’s findings incorrectly noted the date as August 23, 2009. The correct period of forfeiture
was therefore from May 11, 2007 through August 22, 2009.
The evidence of record, consists of appellant signing a false response to a strongly
worded certification clause on the EN1032 forms. The Board finds that she knowingly failed to
report earnings that she received from Heaven Realty.11 If a claimant has any earnings during a
period covered by an EN1032 form, which he or she knowingly fails to report, he or she is not
entitled to any compensation for any portion of the period covered by the report, even though he
or she may not have had earnings during a portion of that period.12 The Board therefore finds
that appellant forfeited compensation for the period May 11, 2007 through August 22, 2009.
LEGAL PRECEDENT -- ISSUE 2
Section 8106(b) of FECA provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his or
her earnings from employment of self-employment by affidavit or otherwise, in
the manner and at times the Secretary specifies. An employee who-1. fails to make an affidavit or report when required; or
2. knowingly omits or understates any part of his or her earnings;
forfeits his or her right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”13
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statues.”14

11

See A.M., Docket No. 13-222 (issued September 25, 2013); see also Harold F. Franklin, supra note 9.

12

Id.

13

5 U.S.C. § 8106(b).

14

20 C.F.R. § 10.529 (2011).

6

ANALYSIS -- ISSUE 2
Regarding the overpayment of compensation in the amount of $66,119.04, OWCP
regulations provide that it may declare an overpayment of compensation for the period of a
forfeiture of compensation. If a claimant has any employment, including self-employment or
involvement in a business enterprise, during a period covered by a Form CA-1032 which he or
she fails to report, the claimant is not entitled to any compensation for any portion of the period
covered by the report, even though he or she may not have had earnings during a portion of that
period.15 The Board has affirmed that the amount of the overpayment is the gross amount of
compensation received during the period of forfeiture.16
While OWCP determined that the amount of compensation appellant forfeited during the
period May 11, 2007 through August 23, 2009 was $66,119.04, the Board finds that the proper
amount is $64,969.08. The Board notes that OWCP cancelled the initial payment for May 25,
2007 in the amount of $1,071.67; therefore this amount should not be included in the
overpayment calculation. Also, while the overpayment was calculated for 22 days for the period
August 2 through 23, 2009, appellant signed the EN1032 form on August 22, 2009; therefore the
overpayment should have been calculated for 21 days, at the daily rate of $78.29. During the
relevant period she received forfeited compensation in the amounts of $972.82, $974.25, 28
payments of $2,192.07 and the final payment through August 22, 2009 of $1,644.09, for a total
of $64,969.08.
LEGAL PRECEDENT -- ISSUE 3
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 duty.17 If
the disability is total, the United States shall pay the employee during the disability monthly
compensation equal to 66 2/3 percent of his or her monthly pay, which is known as his or her
basic compensation for total disability.18 Where the employee has one or more dependents as
defined in FECA, he or she is entitled to have his or her basic compensation augmented at the
rate of 8 1/3 percent, for a total of 75 percent of monthly pay.19
A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his or her support, is either 18 years of
age or over 18 years of age and incapable of self-support due to physical or mental disability.20
A child is also considered a dependent if he or she is an unmarried student under 23 years of age

15

Louis P. McKenna, Jr., 46 ECAB 428 (1994).

16

See J.D., Docket No. 13-86 (issued June 3, 2013).

17

5 U.S.C. § 8102(a).

18

Id. at § 8105(a).

19

Id. at § 8110(b).

20

Id. at § 8110(a).

7

who has not completed four years of education beyond the high school level and is currently
pursuing a full-time course of study at a qualifying college, university or training program.21
If a claimant receives augmented compensation during a period where he or she has no
eligible dependents, the difference between the compensation he or she was entitled to receive at
the two-thirds compensation rate and the augmented compensation received at the three-quarters
rate constitutes an overpayment of compensation.22
ANALYSIS -- ISSUE 3
The Board finds that OWCP erred in finding an overpayment of compensation for the
period August 24, 2009 through March 9, 2013.
For the period August 24, 2009 through March 9, 2013, appellant received wage-loss
compensation at the augmented rate. She claimed her daughter, born April 23, 1995; her
grandson, born December 23, 2004; and a granddaughter, born September 5, 2006; as
dependents for purposes of augmented wage-loss compensation. In order for her to receive
wage-loss compensation at the augmented rate, appellant must have had at least one eligible
dependent during that period. In relevant part, she may claim compensation for an unmarried
child, including an adopted child or stepchild, who lives with her and is under 18 years of age.
The record reflects appellant’s daughter was unmarried and under age 18 at the time
appellant’s compensation payments were reduced to the basic rate on March 10, 2013.23 For the
period August 24, 2009 through March 9, 2013, her daughter would be an eligible dependent so
long as she lived with appellant and appellant provided for her support. During the period in
question, appellant reported that her daughter lived with her except for the 2008-09 school year,
when she lived with her father. OWCP’s September 28, 2012 letter requested that she provide
proof that she made support payments to her daughter’s father during the 2008-09 school year;
but the record is devoid of any evidence of support. OWCP noted that the first payment for the
beginning of the 2008 school year was August 31, 2008. As discussed, appellant forfeited her
entitlement to wage-loss compensation for the period May 11, 2007 through August 23, 2009,
which would have included the 2008-09 school year. She is entitled to augmented compensation
on the basis of her daughter’s dependency status for the period August 24, 2009 through
March 9, 2013, as her daughter was unmarried, under age 18 and there is no evidence of record
that she did not reside with appellant after August 24, 2009. Accordingly, OWCP’s finding that
appellant received an overpayment of $11,810.44 for the period August 24, 2009 through
March 9, 2013 is reversed.
The Board notes that appellant also claimed dependent status on a grandson and a
granddaughter. Under certain circumstances, compensation will be augmented for an injured
employee’s unmarried child. However, child and grandchild are not synonymous and the latter
is not specifically recognized as an eligible dependent for purposes of augmented disability
21

E.G., 59 ECAB 599 (2008).

22

Diana L. Booth, 52 ECAB 370 (2001).

23

Appellant’s daughter would have turned 18 years old April 23, 2013.

8

compensation.24 Although appellant obtained legal custody of her minor grandson in 2005, there
is no evidence of record that she adopted him. A grandchild is not one of the specifically
enumerated dependents for purposes of receiving augmented compensation. Furthermore,
guardianship or legal custody by itself does not establish dependency. Accordingly, appellant’s
grandchildren are not eligible dependents under FECA.25 There is no evidence of any
information concerning appellant’s granddaughter.
OWCP paid appellant $106,294.00 at the augmented rate from August 24, 2009 through
March 9, 2013. While it found an overpayment of $11,829.33, this finding is reversed as she
properly received the augmented compensation due to the dependency status of her unmarried
daughter who was under 18 years of age during the period in question.
LEGAL PRECEDENT -- ISSUE 4
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in either accepting or creating the overpayment.26 Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she receives from OWCP are proper.27 Recipients must show good faith and exercise a
high degree of care in regard to receipt of their benefits.28 A recipient will be found to be at fault
with respect to creating an overpayment if he or she accepted a payment which he or she knew or
should have known to be incorrect.29
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly determined that appellant was at fault in creating
the $64,969.12 overpayment because she failed to provide information which she knew or should
have known to be material on CA-1032 forms covering the period May 11, 2007 through
August 22, 2009. The record establishes that she had unreported self-employment activity
during this period and knowingly failed to furnish this material information to OWCP.
Appellant signed certification clauses on the 1032 forms, which advised her in explicit language
that she might be subject to civil, administrative or criminal penalties if she knowingly made a
false statement or misrepresentation or concealed a fact to obtain compensation. By signing the
forms, she is deemed to have acknowledged her duty to fill out the forms properly, including the
duty to report any employment, self-employment or involvement in a business enterprise.
Appellant failed to furnish information that she knew or should have known to be material to
24

Jacqueline S. Harris, 56 ECAB 252, 255 (2005). The definition of a child includes stepchildren, adopted
children and posthumous children, but does not include married children. 5 U.S.C. § 8101(9). FECA separately
defines grandchild for purposes of identifying eligible beneficiaries to certain death benefits under 5 U.S.C. §§ 8109
and 8133. Id. at § 8101(10).
25

5 U.S.C. § 8101(9); Jacqueline S. Harris, id.

26

Id. at § 8129(b); 20 C.F.R. § 10.433(a) (2012).

27

Id. at § 10.433(a).

28

Id.

29

Id. at § 10.433(a)(3).

9

OWCP. As she is not without fault in creating the overpayment in the amount of $64,969.08,
she is not entitled to waiver.30
CONCLUSION
The Board finds that appellant forfeited $64,969.08 in wage-loss compensation for the
period May 11, 2007 through August 22, 2009 for which she was at fault. However, no
overpayment exists for the period August 24, 2009 through March 9, 2013 as she had an eligible
dependent and was entitled to augmented compensation.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2014 decisions of the Office of
Workers’ Compensation Programs are modified to reflect an overpayment of $64,969.08 and
reversed with regard to the $11,810.44 overpayment.
Issued: October 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

30

Harold F. Franklin, supra note 9.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Monroeville, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1586
Issued: March 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 17, 2015 appellant, through counsel, filed a timely appeal of a January 23, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision, dated October 23, 2013, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
On appeal counsel argues that appellant had filed a timely request for reconsideration
postmarked October 22, 2014 and the claim should therefore be provided a merit review. In
support of this argument, he asserts that the request form was sent by priority express, two-day
shipping through the U.S. Postal Service and was available for pick up at OWCP’s mail
processing center on October 23, 2014, which establishes receipt within one year of the
1

5 U.S.C. § 8101 et seq.

October 23, 2013 merit decision. Counsel further asserts that because the request for
reconsideration was available for OWCP to scan into appellant’s file on Thursday, October 23,
2014 and because appellant cannot be responsible for how quickly or slowly OWCP picked up
mail from the appropriate mailbox or concluded its scanning of a document into a file, the
request should be considered timely. He concludes that merely because the request form was not
scanned into OWCP system until October 27, 2014 does not establish that the request was
untimely filed. In support of his arguments, counsel submitted a product and tracking
information receipt from the U.S. Postal Service.
FACTUAL HISTORY
On December 5, 2011 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed stress on the job. In a letter dated
January 13, 2012, OWCP requested additional factual and medical evidence in support of his
claim.
Appellant alleged that on October 24, 2011 he had requested sick leave to attend a
doctor’s appointment on October 26, 2011 and he placed the request on the desk of his
supervisor, S.T. He did not receive a response to his request on October 24, 2011 and was not
scheduled to work on October 25, 2011. Appellant attended his scheduled medical appointment
on October 26, 2011 and then reported to work. Upon his return to the workplace, S.T.,
questioned the validity of his appointment, allegedly with a demeaning and disrespectful tone.
Appellant believed that S.T., intended to elevate the conversation into something physical and
that appellant felt that his personal space was being violated. He developed rapid heartbeat and
shallow breathing.
Dr. Richard K. Gongloff, a Board-certified internist, examined appellant on October 31,
2011 due to chest pain. He did not find that appellant had an acute coronary syndrome.
Dr. Gongloff reported that appellant claimed to have been at a union meeting and developed an
abnormal sensation in his chest, dizziness, and light-headedness. Appellant indicated that he had
been anxious about going back to work, that he was a union steward, that he had daily
confrontations with management, and that he was fearful that he would require further
hospitalization. Dr. Gongloff diagnosed atypical chest pain and anxiety state. He found that
appellant was totally disabled for three weeks. Appellant claimed that, on October 27, 2011 due
to staffing shortages, he was being forced to violate his work restriction of no overtime. That
evening he had dinner with a friend and recently retired coworker, Rick Lutz, and at dinner
became light headed, nauseated, and felt pressure in his chest. Appellant stated that he was
anxious, confused, and disoriented. Mr. Lutz drove appellant to the hospital.
On October 28, 2011 appellant received a suspension for 14 days no time-off due to
failure to follow instructions regarding his October 24, 2011 leave request. The employing
establishment noted that he had also previously been issued a seven-day no time off suspension
on October 4, 2011 for improper conduct and failure to follow instructions, but appellant had
been unaware of the earlier suspension.
Appellant stated that the employing establishment had experienced a reduction in staff
causing additional work hours and workload contributing to his stress. He noted that the Plum
office was recently consolidated with the Monroeville office which resulted in additional work
2

hours and workload. Appellant reported additional travel to and from work, route adjustments,
and an additional workload. He alleged that the added workload resulted in the majority of the
routes working well over a normal eight-hour day. Appellant stated, “This has caused me
additional stress because of the ongoing disagreements with management regarding whether or
not the routes are properly evaluated at eight hours.”
Appellant suffered an anxiety attack after hearing that, another of his supervisors, A.H.,
had died on November 9, 2011 due to a heart attack. He believed that he would be next to die.
On November 15, 2011 a coworker, M.G., informed appellant of her anxiety due to work issues
and was also transported by ambulance to a medical facility. This incident increase also
attributed to his anxiety.
On November 21, 2011 appellant notified his manager, R.S., of his additional period of
disability and provided medical documentation from Dr. Gongloff. The manager indicated that
the medical information provided was insufficient. Appellant discussed with R.S., the October 4,
2011 7-day suspension, which had been mentioned in the later October 28, 2011 14-day
suspension. In that discussion, he learned that A.H. had issued the seven-day suspension for
appellant just prior to his death. Appellant stated that he believed that the employing
establishment had killed A.H.
Appellant claimed that, after making that statement, his manager, R.S., walked toward
him, invading his personal space, and in an elevated voice informed appellant that he would
write and sign a resignation letter for him so that he would not have to return to the employing
establishment. He informed R.S. that he felt threatened and asked him not to use that tone to
address him. Appellant alleged that R.S. then began waving his arms and displaying
uncontrolled anger. R.S. asked appellant if he believed that he was being threatened. Appellant
left and experienced a panic attack.
Appellant generally alleged that the employing establishment had not timely processed
his occupational disease claim (Form CA-2). He further alleged that R.S. was irritable, sarcastic,
and hostile when discussing his claim via telephone on December 15, 2011. Appellant again
experienced an anxiety attack while at a party discussing working conditions on
December 17, 2011. He reported to work on January 19, 2012 and alleged that he had another
confrontation with R.S. regarding a notebook and regarding his request for assistance to
complete his route in eight hours. R.S. denied the assistance and claimed that he would
discipline appellant for failing to complete the route. Appellant responded that he needed
medical attention and R.S. threatened him with additional discipline if he abandoned his route.
On January 23, 2012 appellant was seen by Dr. Gongloff who found that appellant was
able to work a maximum of eight hours per shift to minimize his work-related stress from
January 20 through 31, 2012. In a February 6, 2012 note, Dr. Gongloff diagnosed anxiety with
panic attacks and high blood pressure. He attributed appellant’s anxiety to adverse working
conditions and interactions with management. On March 26 and April 16, 2012 Dr. Gongloff
again restricted appellant to working no more than eight hours a shift due to his diagnosed
anxiety and panic disorder which were exacerbated by work-related stress.
Appellant worked on January 24, 2012 and alleged that he was denied union time to
process grievances. He began his route, reported to D.M., a supervisor, that he would not be able
3

to complete it within his eight-hour work restrictions, and returned with mail after eight hours.
D.M. disputed the allegation and claimed that appellant only had six hours of mail to deliver and
there was no basis for failure to make the deliveries.
The employing establishment proposed to terminate appellant on February 9, 2012 due to
his failure to follow instructions and not completing his assigned tasks within eight hours on
January 24, 2012.
By decision dated August 6, 2012, OWCP accepted as factual that appellant was required
to exceed his eight-hour a day work restriction, but that the medical evidence was insufficient to
establish that the employment factor of exceeding work restrictions caused or contributed to his
diagnosed conditions.
Appellant timely requested reconsideration on July 19, 2013. Counsel argued that he was
providing new medical evidence requiring review of the merits. He further alleged that appellant
had substantiated additional compensable factors of employment, including verbal altercations
and a tense relationship with his supervisor, harassment, and an additional verbal abuse episode
on May 2, 2012 supported by witness statements.
In a report dated December 18, 2012, Dr. Louis K. Hauber, a Board-certified psychiatrist,
diagnosed major depression and panic disorder. He opined that appellant’s current work
environment was aggravating his underlying psychiatric disorder.
Dr. Joel I. Last, a Board-certified psychiatrist, completed a report on February 5, 2013
and attributed appellant’s anxiety to an overburdened route, forced mandatory overtime,
understaffing, and abusive management. He opined that appellant could not work more than
eight hours a day due to his diagnoses of anxiety and depression which are “a direct result of the
stress [appellant] is experiencing in his work environment.” Dr. Marnin E. Fischbach, a
psychiatrist, submitted a report dated May 20, 2013 noting that he had examined appellant on
December 31, 2012. He described appellant’s increased work hours due to the closure of the
Plum, PA employing establishment, which included working more than 10 hours a day.
Dr. Fischbach noted that the extra hours were a major stressor for appellant. He noted that
appellant alleged that he continued to be harassed by his supervisor about his eight-hour a day
work restriction and that his supervisor threatened him in May 2012 due to his poor work
performance. Dr. Fischbach diagnosed panic disorder without agoraphobia and opined that this
condition was precipitated by intensely stressful events.
Dr. Gongloff completed a report on May 28, 2013 and again diagnosed anxiety with
panic attacks in addition to high blood pressure. A coworker, T.R., submitted a witness
statement alleging on October 26, 2011 S.T. asked appellant, in an elevated hostile tone, why he
attended a doctor’s appointment.
T.R. asserted that S.T.’s actions were belligerent,
unprofessional, disrespectful, and hostile. He stated that S.T. interrupted appellant when he tried
to offer explanations.
Appellant submitted two letters from postal customers who wrote of their observations of
a man in a red vehicle following and verbally confronting their mail carrier, appellant, while he
was on his route.

4

By decision dated October 23, 2013, OWCP denied modification of its prior decision
dated August 6, 2012 and noted on May 6, 2013 that appellant had filed a separate traumatic
injury claim (Form CA-1) alleging that he experienced chest pains on May 4, 2012 as a result of
harassment by his supervisor. This traumatic injury claim was accepted for aggravation of panic
disorder. However, OWCP found that the medical evidence was insufficient to establish that
appellant’s panic disorder was caused or contributed to by his accepted employment factor of
work outside his eight-hour restriction. It determined that there was no rationalized medical
opinion evidence supporting a causal relationship between his diagnosed conditions and his
accepted employment factor.
Appellant requested reconsideration through an undated letter postmarked October 22,
2014 and received by OWCP on October 27, 2014. He alleged that his stress began in the spring
of 2011 with the consolidation of the Plum and Monroeville offices. Appellant repeated his
allegations that he was forced to work overtime, and that the employing establishment had not
properly staffed the office or maintained the length of the routes in proper adjustment. He
alleged that his anxiety and panic attacks were caused by mandatory overtime as well as the
abusive acts of his supervisors. Appellant submitted five statements from coworkers alleging
that when the Plum station was moved to Monroeville, this added additional travel time of 30
minutes for all the routes, that routes were over eight hours, and that carriers were forced to work
overtime resulting in stressful working conditions.
By decision dated January 23, 2015, OWCP declined to reopen appellant’s claim for
consideration of the merits as his request for reconsideration was untimely filed and did not
establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA2 does not entitle a claimant to a review of an OWCP decision
as a matter of right.3 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.4 OWCP, through regulations has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.
In order to be timely, a request for reconsideration must be received by OWCP within one year
of the date of OWCP’s merit decision for which review is sought. Timeliness is determined by
the document receipt date of the reconsideration request (the “received date”) in the Integrated
Federal Employee’s Compensation System (iFECS).5 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).6
2

Id. at § 8128(a).

3

Thankamma Mathews, 44 ECAB 765, 768 (1993).

4

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

5

20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(October 2011). G.F., Docket No. 15-1053 (issued September 11, 2015).
6

Supra note 3 at 769; Jesus D. Sanchez, supra note 4 at 967.

5

In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.7 OWCP procedures state that OWCP
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in OWCP regulations, if the claimant’s request for reconsideration shows “clear evidence
of error” on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise, and explicit and must be
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence establishes clear error on the part of OWCP.13 To establish clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.14 The Board must make an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.15
ANALYSIS
The Board finds that appellant’s October 2014 request for reconsideration was untimely
filed as it was not received into iFECS by OWCP within one year of the most recent merit
decision dated October 23, 2013 as required. OWCP procedures provide that the one-year time
limitation period for requesting reconsideration begins on the date of the original OWCP
decision.16 A right to reconsideration within one year also accompanies any subsequent merit
7

Supra note 3 at 770.

8

See supra note 5 at Chapter 2.1602.5 (October 2011).

9

Supra note 3.

10

Leona N. Travis, 43 ECAB 227, 241 (1991).

11

Jesus D. Sanchez, supra note 4 at 968.

12

Supra note 10.

13

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

15

Nancy Marcano, 50 ECAB 110 (1998).

16

20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Supra note 5 at Chapter 2.1602.4 (October 2011).

6

decision on the issues.17
As OWCP received appellant’s October 2014 request for
reconsideration into its iFECS system on October 27, 2014, more than one year after the last
merit decision of record dated October 23, 2013, it was untimely. Consequently, appellant must
establish clear evidence of error by OWCP in denying his claim for compensation.18
On appeal counsel argues that OWCP timely received his request for reconsideration on
October 23, 2014 as evidenced by the tracking receipt he submitted, on appeal, in support of this
contention. The Board, however, cannot review this evidence for the first time on appeal.19
Furthermore, according to OWCP procedures, the received date is determined solely by the
document received date in iFECS, October 27, 2014.20 This date of receipt makes the
reconsideration request untimely.21
The Board further finds that appellant’s untimely request for reconsideration did not
establish clear evidence of error on the part of OWCP.
OWCP denied appellant’s emotional condition claim finding that he had not submitted
the necessary medical opinion evidenced to establish that his anxiety and depression were
causally related to the requirement that he work more than eight hours per day, an accepted
factor of employment. In support of his request for reconsideration, appellant submitted no
additional medical evidence relating to the accepted employment factor. Instead, he repeated his
allegations that he was forced to work overtime and that the employing establishment did not
properly staff the office or maintain the routes in proper adjustment. Appellant alleged that his
anxiety and panic attacks were caused by mandatory overtime as well as the abusive acts of his
supervisors. He submitted additional witness statements that employees were required to work
more than eight hours to complete their assigned routes and that this was stressful. The
additional witness statements, however, do not raise a substantial question as to the correctness
of OWCP’s decision. While appellant’s coworkers generally spoke to the change in work hours
and increased stress, these statements do not establish error in OWCP’s decision.22 In order to
establish clear evidence of error, the evidence must be of sufficient probative value to shift the
weight of evidence in favor of the claimant and raise a substantial question as to the correctness
of the merits of OWCP’s decision. The Board finds that the evidence submitted on
reconsideration failed to meet this standard and, thus, OWCP properly denied merit review.23

17

Robert F. Stone, 57 ECAB 292 (2005).

18

20 C.F.R. § 10.607(b); G.F., Docket No. 15-1052 (issued September 11, 2015).

19

Id. at § 501.2(c).

20

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.4(b) (October 2011).

21

G.F., Docket No. 15-1052 (issued September 11, 2015) (finding that the timeliness of a request for
reconsideration is not determined by a tracking receipt, but by the date the reconsideration request is entered into
iFECS).
22

Robert G. Burns, 57 ECAB 657 (2006).

23

Id.

7

Appellant also submitted a copy of the obituary of A.H. and resubmitted his
October 2011 14-day suspension. He did not explain how these documents, on their face, could
establish clear evidence of error on the part of OWCP.24 The Board finds that this additional
factual evidence does not establish clear error on the part of OWCP and is therefore insufficient
to require OWCP to reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely and did not
establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT January 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

24

Z.T., Docket No. 15-0250 (issued July 16, 2015) (finding it is necessary to submit an explanation of how the
evidence creates clear evidence of error on its face).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
FORT SNELLING, Minneapolis, MN, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1141
Issued: February 18, 2010

Case Submitted on the Record

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

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated August 12, 2008 and February 20, 2009. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability due to his accepted
lower back condition as of May 12, 2008.
FACTUAL HISTORY
Appellant, a 38-year-old temporary cemetery caretaker, experienced pain in his lower
back on August 31, 2006 while setting and lifting headstones. He filed a claim for benefits on
September 5, 2006, which the Office accepted for displacement of the lumbar intervertebral disc
without myelopathy.
Appellant’s temporary position as a cemetery caretaker expired on October 1, 2006; the
Office commenced payment for temporary total disability compensation as of that date.

In a September 21, 2007 report, Dr. David M. Olson, Board-certified in family practice
and appellant’s treating physician, outlined updated work restrictions for appellant. These
included: continuous lifting not exceeding 10 pounds; frequent lifting not exceeding 11 to 20
pounds; occasional lifting not exceeding 21 to 35 pounds; no twisting/turning; no lifting
exceeding 35 pounds; continuous pulling/pushing not exceeding 25 pounds; frequent
pulling/pushing not exceeding 26 to 50 pounds; occasional pulling/pushing not exceeding 51 to
75 pounds; no pulling/pushing of exceeding 76 pounds; occasional kneeling and squatting; and
frequent sitting, standing, walking, overhead reaching, ladder/stair climbing with one third to
two-thirds effort. Dr. Olsen stated that appellant should be allowed to stand and stretch his low
back briefly, for one minute or less, every 15 to 30 minutes.
On February 29, 2008 appellant accepted a job within Dr. Olson’s restrictions as a clerk.
The position entailed working as a shelter monitor, overseeing committal services such as
insuring casketed and cremated remains are kept in attendance until remains were properly
transferred, remaining alert while in attendance of committal services, detecting and reporting
unusual or potential problems, assisting in folding and presenting the flag to next of kin if
required, escorting family members to assigned burial section, insuring that family members
remained a safe distance from gravesites and performing other administrative duties as assigned.
In addition, appellant was required to type maps and casket tags, answer telephones, provide
information to visitors and public regarding the location of gravesites, visiting hours, flower
containers, etc. The position required a valid driver’s license so that appellant could perform the
driving duties associated with the position.
The physical requirements of the job description were described as light in nature; work
was to be performed inside and outside but predominantly outside. The job required:
intermittent lifting for one to two hours per day; not exceeding 35 pounds; intermittent sitting for
one to two hours per day; frequent walking for four to six hours per day; frequent standing for
four to six hours per day; intermittent kneeling for two hours per day; intermittent
bending/stooping for one to two hours per day; intermittent pulling/pushing for one to two hours
per day, not exceeding 75 pounds; intermittent simple grasping for two to four hours per day;
intermittent fine manipulation for one to two hours per day; intermittent reaching above the
shoulder for one to two hours per day and no climbing.
Appellant accepted the employing establishment’s job offer on March 3, 2008 and
returned to work on March 16, 2008.
In a report dated May 8, 2008, Dr. Olson stated that appellant had a musculoskeletal
problem involving numbness radiating into his arms and hands. He diagnosed thoracic outlet
syndrome secondary to his low back injury. In a May 14, 2008 report, Dr. Olson stated that he
was treating appellant for a flare-up of low back pain and evaluating his problem with numbness
radiating into all of his fingers on both hands. He noted that appellant’s low back pain had
started suddenly on the previous Sunday. In another report dated May 14, 2008, Dr. Olsen
indicated that he was keeping appellant out of work for one week due to thoracic outlet
syndrome, low back pain and displacement of the lumbar intervertebral disc. In a May 15, 2008
report, he stated that he saw the claimant on May 14, 2008 for an exacerbation of his work injury
from August 31, 2006.

2

On May 23, 2008 appellant filed a Form CA-7 claiming compensation from May 12
to 30, 2008.
In a May 21, 2008 report, Dr. Olson reiterated that appellant had experienced an
exacerbation of low back pain which began the previous Sunday. He noted that he had been
treating appellant for a flare-up of low back pain and to evaluate numbness into his fingers; he
also reiterated the diagnoses of displacement of lumbar intervertebral lumbar disc and thoracic
outlet syndrome. Dr. Olson reported that appellant’s low back was tender with spasms on the
left paravertebral muscles from the mid-lumbosacral spine to the top of the neck. Appellant also
had complaints of tingling in the toes and reflexes symmetrically decreased throughout.
Dr. Olson advised that he discussed treatment options and future diagnostic testing with
appellant and kept him out of work for another two weeks. He submitted work restrictions dated
May 21, 2008 which remained unchanged from those he presented in September 2007.
By letter dated June 3, 2008, the Office requested additional information from appellant
in support of his recurrence claim. It requested a statement from appellant explaining that his
light-duty assignment had changed and indicating that they no longer met the restrictions set by
his physician. The Office also requested a medical opinion from appellant’s treating physician
supporting his claim that a worsening in the work-related condition had occurred.
In a June 10, 2008 report, Dr. Olson reiterated that he kept appellant off work as of
May 14, 2008 because of thoracic outlet syndrome, which he opined was causally related to the
accepted low back injury. He noted on examination that appellant had spasm of the trapezius
muscles with no tenderness and otherwise normal range of motion. Dr. Olson stated that, while
it was possible for thoracic outlet syndrome to occur independently, the simplest explanation for
its emergence in appellant was that the exacerbation of low back spasm triggered the onset of the
thoracic syndrome. He asserted that his testing for thoracic outlet syndrome and associated
muscle spasm radiating from the lower back supported his opinion that appellant’s thoracic
symptomatology was causally related to the 2006 low back injury.
By decision dated August 12, 2008, the Office denied appellant compensation for a
recurrence of his accepted low back condition. It stated that appellant failed to meet his burden
to establish the March 2006 job offer exceeded his work restrictions or that on May 12, 2008
appellant had an objective worsening of his work-related lower back condition.
By letter dated August 18, 2008, appellant’s attorney requested an oral hearing, which
was held on December 4, 2008.
In a report dated September 10, 2008, Dr. Olson stated that appellant continued to have
complaints of low back pain with numbness radiating into the fingers in both hands. He also
noted occasional right foot and bilateral hand numbness. Dr. Olson stated that, upon reviewing
his records from May 2008, it was clear to him that the numbness in appellant’s hands was the
primary reason for taking appellant off work and sending him to physical therapy. He advised
that numbness of the hands was clearly dangerous in the workplace where tools are being used.
Dr. Olson reiterated that appellant had thoracic outlet syndrome in addition to low back pain,
which he considered work related; however, he stated that the back pain was “a side issue.” He

3

advised that the main issue was the numbness of appellant’s hands due to thoracic outlet
syndrome, which was clearly tied to the amount and location of his back muscle spasms.
At the hearing, appellant asserted that the constant riding around the cemetery in his
official vehicle throughout six different locations, as required by his job as a shelter monitor,
resulted in the exacerbation of his back pain. He stated that he awakened on Sunday morning,
May 11, 2008, with back pain so severe that he was barely able to move or walk as of Monday,
May 12, 2008. Appellant’s attorney stated that the alternating sitting and standing entailed by
appellant’s light-duty position apparently aggravated his back condition.
By decision dated February 20, 2009, an Office hearing representative affirmed the
August 12, 2008 decision.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act1 has
the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.2 In this case, appellant has the burden of establishing that a
recurrence of a medical condition causally related to his employment injury.3 This burden
includes the necessity of furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports that conclusion with sound medical rationale.
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition, or a change in the nature and extent of the light-duty requirements.4
ANALYSIS
In the instant case, the record does not contain any medical opinion showing a change in
the nature and extent of appellant’s injury-related condition. Indeed, appellant has failed to
submit any medical opinion containing a rationalized, probative report which relates his
condition or disability as of May 12, 2008 to his employment injury. For this reason, he has not

1

5 U.S.C. §§ 8101-8193

2

Edward W. Spohr, 54 ECAB 806 (2003).

3

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a “need for further medical treatment after release from
treatment,” nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).
4

Terry Hedman, 38 ECAB 222 (1986).

4

discharged his burden of proof to establish his claim that he sustained a recurrence of disability
as a result of his accepted employment injury.
Appellant submitted reports from Dr. Olson, his treating physician, who provided
September 21, 2007 work restrictions due to the accepted August 31, 2006 low back injury. The
employing establishment offered appellant a light-duty job as a shelter monitor in March 2008 in
conformance with these restrictions, which he accepted. Appellant performed this job without
apparent difficulty until May 12, 2008, when he purportedly sustained an aggravation of his
accepted back condition. The medical evidence of record, however, does not support this
assertion. The weight of the medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.5 While Dr. Olson submitted several reports
from May 8 through 21, 2008 which noted that appellant had experienced a flare-up of his
accepted low back condition, he indicated that appellant became disabled as of May 12, 2008
primarily because of thoracic outlet syndrome, which he stated was a byproduct of the low back
injury. He advised that appellant had a musculoskeletal problem involving numbness radiating
into his arms, hands and fingers. In his May 14, 2008 report, Dr. Olson kept appellant out of
work for one week due to thoracic outlet syndrome, low back pain and displacement of the
lumbar intervertebral disc; he also advised in a May 15, 2008 report that appellant had sustained
an exacerbation of his August 31, 2006 work injury. He essentially reiterated these findings in
his May 21, 2008 report and kept him out of work for two more weeks. Dr. Olson did not,
however, provide any rationalized, probative medical opinion sufficient to establish that
appellant’s claimed total disability as of May 12, 2008 was causally related to his accepted lower
back condition. In his June and September 2008 reports, he attributed most of appellant’s
problems as of May 2008 to thoracic outlet syndrome, a condition not accepted by the Office.
Dr. Olson stated in his June 10, 2008 report that the exacerbation of low back spasm triggered
the onset of thoracic syndrome; however, his opinion on causal relationship is of limited
probative value in that he did not provide adequate medical rationale in support of his
conclusions. He did not describe appellant’s work duties in any detail or indicate how
appellant’s accepted lower back condition would cause or contribute to his alleged disability as
of May 12, 2008. In his September 10, 2008 report, Dr. Olson reiterated that appellant had
thoracic outlet syndrome in addition to low back pain, which he considered work related. He
stated, rather, that appellant’s back pain was “a side issue” and opined that the main issue was
the numbness of appellant’s hands due to thoracic outlet syndrome. Therefore, Dr. Olson’s
opinion is of limited probative value for the further reason that it is generalized in nature and
equivocal in that he only noted summarily that appellant’s disability as of May 12, 2008 was
causally related to the August 31, 2006 work injury. He therefore failed to explain how
appellant’s alleged recurrence of disability was caused or aggravated by his accepted condition.
Dr. Olson’s reports do not constitute sufficient medical evidence demonstrating a causal
connection between appellant’s employment injury and his alleged recurrence of disability.
Causal relationship must be established by rationalized medical opinion evidence. The reports
submitted by appellant failed to provide an explanation in support of his claim that he was totally
5

See Ann C. Leanza, 48 ECAB 115 (1996).

5

disabled as of May 12, 2008. These reports did not establish a worsening of appellant’s
condition, and therefore do not constitute probative, rationalized opinion evidence demonstrating
that a change occurred in the nature and extent of the injury-related condition.6
In addition, the Board finds that the evidence fails to establish that there was a change in
the nature and extent of appellant’s limited-duty assignment such that he no longer was
physically able to perform the requirements of his light-duty job. Appellant returned to work as
a shelter monitor, a job within his prescribed restrictions, on March 16, 2008. The evidence of
record indicates that he worked continuously at this job until May 12, 2008, when he asserted
that the requirements of driving a golf cart type of vehicle around the employing establishment
and exiting and entering this vehicle to perform his monitoring duties caused an exacerbation of
his accepted low back condition. Appellant asserted that, because of the physical strain and pain
caused by these duties, he had to be excused from doing his job until May 30, 2009. He has
presented no evidence, however, which indicates that this job exceeded his physical and work
limitations. The restrictions Dr. Olson outlined in September 2007 remained unchanged as of
May 14 and 21, 2007. In addition, appellant testified at the hearing that he was able to return to
this job as of June 9, 2009. The Office properly denied his claim for benefits based on a
recurrence of disability in its August 12, 2008 and February 20, 2009 decisions.
Accordingly, as appellant has not submitted any factual or medical evidence supporting
his claim that he was totally disabled from performing his light-duty assignment as of May 12,
2008 as a result of his accepted low back condition, he failed to meet his burden of proof. The
Office properly found in its August 12, 2008 and February 20, 2009 decisions that he was not
entitled to compensation based on a recurrence of his employment-related disability.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of May 12, 2008 causally related to his accepted
low back condition.

6

William C. Thomas, 45 ECAB 591 (1994).

6

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2009 and August 12, 2008
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: February 18, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Monroe, PA, Employer
__________________________________________

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Appearances:
Charles L. Kincade, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-133
Issued: April 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 31, 2007 merit decision concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$16,161.00 overpayment of compensation; (2) whether the Office properly determined that he
was at fault in creating the overpayment of compensation, thereby precluding waiver of recovery
of the overpayment; and (3) whether the Office properly required repayment of the overpayment
by deducting $750.00 from his compensation payments every month.
FACTUAL HISTORY
In late 2005 the Office accepted that appellant, then a 55-year-old letter carrier, sustained
an aggravation of a right bunion. The Office paid compensation for periods of disability. In a

July 14, 2006 decision, the Office granted appellant a schedule award for a three percent
permanent impairment of his right foot. The schedule award ran for 6.15 weeks from May 4 to
June 16, 2006. The award noted that appellant’s gross weekly pay rate was $673.40 ($897.87
multiplied by the rate for claimants with dependents) and the total of the award was $2,693.61.
The record contains a worksheet indicating that appellant was entitled to a $2,693.61 payment,
but the record does not show when and how the payment was actually made. Appellant called
the Office on July 24, 2006 and confirmed that the amount of the schedule award was $2,693.61.
In a December 20, 2006 notice, the Office advised appellant of its preliminary
determination that he received a $16,161.00 overpayment of compensation due to receiving
payments after the payment period for the July 14, 2006 schedule award had ceased. The Office
indicated that the schedule award ran from May 4 to June 16, 2006 and compensated appellant in
the amount of $2,693.61. It found that appellant received six additional payments (each in the
amount of $2,693.61) which covered the period July 9 to December 23, 2006.1 The record
contains worksheets which describe these payments, but there are no documents in the record
showing when and how the payments were actually made. The Office made a preliminary
determination that appellant was at fault in the creation of the overpayment. The Office
requested that appellant submit evidence or argument if he wished to contest any aspect of the
overpayment, including the fault determination, and requested that he submit certain financial
information.2
In a February 8, 2007 decision, an Office hearing representative affirmed the Office’s
July 14, 2006 schedule award.
Appellant requested a hearing before an Office hearing representative in connection with
preliminary notice of overpayment. At the May 7, 2007 hearing, he indicated that he had
contested the amount of the schedule award he had received and asserted that he had no reason to
believe that the payments he received between mid and late 2006 were incorrect.
In a July 31, 2006 decision, the Office hearing representative made a final determination
that appellant received a $16,161.00 overpayment of compensation due to receiving payments
after the payment period for the July 14, 2006 schedule award had ended. She also made a final
determination that appellant was at fault in the creation of the overpayment. The Office hearing
representative indicated that the financial information submitted by appellant showed that his
monthly income exceeded his monthly expenses by $1,543.00 and determined that the
overpayment should be recovered by deducting $750.00 from appellant’s compensation
payments every month.

1

The Office indicated that the payments were made at 28-day intervals but did not list the dates of the payments.
The Board notes that multiplying $2,693.61 times six actually equals $16,161.66 rather than $16,161.00.
2

Appellant later contested the fault finding and submitted financial information.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.4 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”5
Section 8116(a) of the Act provides that, while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.6
In determining whether a claimant has discharged his burden of proof and is entitled to
compensation benefits, the Office is required by statute and regulation to make findings of fact.7
Office procedure further specifies that a final decision of the Office must include findings of fact
and provide clear reasoning which allows the claimant to “understand the precise defect of the
claim and the kind of evidence which would tend to overcome it.”8 These requirements are
supported by Board precedent.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an aggravation of a right bunion. In a
July 14, 2006 decision, the Office granted appellant a schedule award for a three percent
permanent impairment of his right foot. The schedule award ran for 6.15 weeks from May 4 to
June 16, 2006. The award noted that appellant’s gross weekly pay rate was $673.40 ($897.87
multiplied by the rate for claimants with dependents) and the total of the award was $2,693.61.
The Office subsequently found that appellant received a $16,161.00 overpayment of
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8102(a).

5

5 U.S.C. § 8129(a).

6

5 U.S.C. § 8116(a).

7

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office “shall contain findings of fact and a statement of reasons.”
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

9

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

3

compensation due to receiving six duplicative schedule award payments after the payment period
for the July 14, 2006 schedule award had ended.
The Board finds that the Office has not provided sufficient explanation of how it
calculated the fact or amount of the overpayment. The case will be remanded to the Office for
further development. Although the record contains a worksheet indicating that appellant was
entitled to a $2,693.61 payment in connection with the July 14, 2006 schedule award, there are
no documents in the record showing when and how the payment was actually made. Moreover,
although the record contains worksheets indicating that appellant received $16,161.00 for the
period July 9 to December 23, 2006, the record does not contain documents showing when and
how the payments were actually made. The Office asserted that appellant received six
unwarranted payments (each in the amount of $2,693.61) but it did not indicate when the
individual payments were made (other than indicating they were made every 28 days) and the
documents of record do not provide any further clarification.
In the absence of these records, the Board is unable to determine whether the Office
accurately calculated the amount of the alleged overpayment. The Board is unable to determine
whether appellant actually received the compensation to which he is entitled or whether and in
what amounts he received compensation to which he is not entitled.10 For example, it remains
unclear whether the $16,161.00 appellant is alleged to have received actually contained any
monies to which he was entitled to in connection with the July 14, 2006 schedule award.
Obtaining information about the timing and amounts of the monies appellant might have
received would also be helpful in determining whether he would be at fault in the creation of any
overpayment.
At present, appellant would not be able to understand the precise defect of the claim and
the kind of evidence which would tend to overcome it.11 Given the Office’s failure to adequately
explain its findings regarding the fact and amount of the alleged overpayment, it is premature to
consider the issues of fault, waiver of recovery and method of recovery. The case should be
remanded to the Office so that it might provide sufficient explanation of the above-described
matters. After such development as it deems necessary, the Office should issue an appropriate
decision regarding all relevant overpayment issues.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received a $16,161.00 overpayment of compensation, whether he is at fault in the creation of the
overpayment such that he would not be entitled to waiver of recovery, and whether the
overpayment should be recovered by deducting $750.00 from his compensation payments every
month. The case is remanded to the Office for further development.

10

The Board notes that there appears to be an error in the Office’s determination that the July 14, 2006 schedule
award entitles appellant to only $2,693.61. Multiplying appellant’s gross weekly pay rate of $673.40 times the 6.15
weeks that the award ran would yield $4,141.41 rather than $2,693.61.
11

See supra note 8 and accompanying text.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 31, 2007 decision is set aside and the case remanded to the Office for further proceedings
consistent with this decision of the Board.
Issued: April 18, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5