United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 12-225
Issued: June 22, 2012

Case Submitted on the Record

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

JURISDICTION
On November 22, 2011 appellant filed a timely appeal of a November 7, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his emotional condition
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On May 13, 2011 appellant, then a 51-year-old clerk, filed an occupational disease claim
alleging occupational stress and anxiety due to work-related conditions. He first became aware
of his condition on August 2, 1991 and first related his stress condition to his employment on
1

5 U.S.C. § 8101 et seq.

May 12, 2011. On the reverse of the form, appellant’s supervisor stated that he refused to work
Tour I and was using sick leave.
In a report dated August 2, 1991, R.A. Cougher, Ph.D., a clinical psychologist, diagnosed
anxiety due to conflict on the job. He noted that appellant’s preferred shift was 5:00 a.m. to
1:30 p.m.
Appellant attributed his emotional condition to harassment and retaliation by his
supervisors due to Equal Employment Opportunity (EEO) complaints and grievances that he
filed. He stated that his employer refused to pay him for higher level work that he performed.
Appellant alleged that he was unjustly disciplined for wearing jeans to work, including a letter of
warning and a seven-day suspension. He alleged retaliation due to whistle-blowing. Appellant
stated that managers improperly denied vacation periods and ignored his restricted work hours.
He filed several EEO complaints because managers refused to help him and because his seniority
ranking was wrong. Appellant was improperly denied preferential days off and a change in his
work shift to 1:00 a.m. through 9:30 a.m., which he alleged was against his restrictions of no
work prior to 9:30 a.m.
On May 2, 2011 Dr. Dean Ross, a family practitioner, diagnosed insomnia, sleep apnea
and anxiety. He stated that appellant’s anxiety would be worsened if he tried to change from his
day shift working hours. Appellant could work for any eight-hour period between 4:30 a.m. and
5:00 p.m., with two consecutive days off. Dr. Ross found that appellant could not work after
5:00 p.m. or before 4:30 a.m. and could not work overtime. He stated that the restrictions were
necessary for appellant to maintain a normal sleep pattern in order to control his sleep apnea and
hypertension. Appellant submitted a note from a professional counselor and a sleep study
diagnosing severe obstructive sleep apnea.
In a June 2, 2011 letter, OWCP requested additional factual and medical evidence in
support of appellant’s claim. Appellant responded that he was medically restricted from working
overtime and to work hours between 4:30 a.m. and 5:00 p.m. with no overtime and two
consecutive days off. He reiterated that he was subjected to harassment and retaliation from his
supervisors and managers. Appellant was not paid for performing higher level duties and
disciplined for wearing jeans to work even though he was allowed to do so as a clerk. He alleged
that he was accused of shorting funds. Appellant noted that he bid on a job but the position was
awarded to another employee who was ranked higher on the seniority roster. He discovered that
his coworker did not have a Veteran’s preference and when he and the union reviewed the
seniority roster, errors were found. Appellant filed an EEO complaint to have this roster
corrected.
Appellant received settlements in 2010 for complaints filed in 2008 and 2009. He noted
that in June 2010 a supervisor had a discussion with him regarding a conversation he had with a
female coworker. Appellant alleged that the employing establishment deliberately allowed
Express Mail to fail and which caused him stress and anxiety. He stated that a manager harassed
him on May 13 and 14, 2011. Since 2006 appellant filed yearly complaints with the EEO
Commission or other outside agencies. All the managers at the employing establishment had
been named in his complaints and none would aid him.

2

Appellant attributed his condition to the proposal to change his work schedule from a
4:30 a.m. to 1:00 p.m. schedule to a 1:00 a.m. to 9:30 a.m. schedule. As this schedule did not
comply with his work restrictions, he used sick leave from 1:00 a.m. to 4:30 a.m. Appellant
alleged that a supervisor confronted him about his leave usage and dismissed his physician’s
recommendations. He alleged that his position was to be abolished. Appellant experienced daily
stress of not knowing what he was going to do.
Appellant submitted a grievance dated May 27, 2009 regarding a letter of warning he
received for wearing blue jeans at the employing establishment. The grievance also addressed
the second charge of his neglect to close a case. Appellant alleged that he was aiding a customer
and that his position was undermanned. On December 12, 2009 he filed an EEO investigation
report alleging discrimination based on race, color, age, retaliation and mental disability through
the employing establishment’s actions in not providing him with enough time to complete work
tasks, in singling him out regarding work dress and the May 14, 2009 letter of warning.2
On April 12, 2010 appellant alleged that he was performing higher level duties and not
being fairly compensated. He submitted a March 10, 2008 EEO dispute resolution specialist
inquiry report regarding the issue.
Appellant submitted a statement to the Merit Systems Protection Board (MSPB) alleging
that his employer violated his Veteran’s preference rights in September 2009 when a job that he
bid on was awarded to another employee with the same hire date, but no Veteran’s preference.
In a letter dated November 12, 2010, the union president alleged that the employing
establishment should have given appellant credit for his military service correcting his standing
on the seniority roster. On October 21, 2010 the EEO counselor provided appellant with a notice
of right to file a claim regarding this issue. On September 29, 2010 the employing establishment
informed appellant that an arbitration decision established his seniority as a clerk as of
December 24, 1983 and that his position on the seniority roster was correct.
Appellant submitted a National Labor Relations Board complaint alleging that the
employing establishment made unilateral changes in work schedules without notice to the union.
On April 30, 2011 he requested to change his vacation leave from period 30 to period 44,
Christmas. On April 29, 2011 appellant requested precomplaint counseling regarding his
employer’s failure to change his vacation leave periods from periods 13 and 30 to 15 and 44 as
requested on April 22, 24 and 28, 2011. On April 25, 2011 he criticized the handling of express
mail. Appellant submitted notes dated May 17 to June 2011 from Kelly Bender, a licensed
professional counselor.
In a letter dated June 24, 2011, the employing establishment responded to appellant’s
allegations. It noted that his hours were changed due to the needs of the service. The employing
establishment also noted that appellant’s medical condition requiring specific hours was due to
sleep apnea, not an accepted work-related condition. In a statement dated June 23, 2011,
appellant’s supervisor for Tour 2 stated that appellant submitted medical documentation with his
work hours’ restrictions, but she advised him that as the condition of sleep apnea was not work
2

This investigation was listed as agency case number 4G-730-0045-09.

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related, he should apply for light duty. This supervisor noted that she did not receive any lightduty request from appellant.
In a letter dated June 17, 2010, the employing establishment provided a settlement
agreement from two of appellant’s EEO claims. Appellant received $2,250.00 in nonwage
compensatory damages and the employing establishment removed the letter of warning of
May 14, 2009. The settlement agreement noted that it did not constitute any admission of
violation of any statute, rule, regulation or legal obligation.
OWCP referred appellant for a second opinion evaluation on August 25, 2011. The
statement of accepted facts includes an age discrimination EEO complaint. In a report dated
September 23, 2011, Dr. Amar Bhandary, a Board-certified psychiatrist, noted appellant’s
allegations of harassment and work difficulties at the employing establishment. He reviewed the
statement of accepted facts and medical records and diagnosed depression and generalized
anxiety disorder. Dr. Bhandary stated that appellant had significant interpersonal conflicts with
his supervisors and had a tendency to repeatedly file complaints. He concluded, “In my opinion,
this is not a cause of workplace harassment. The veteran has personality deficits that cause his
interpersonal relationship with his supervisor. They might respond to him negatively which he
then tends to misconstrue as harassment.” Dr. Bhandary attributed appellant’s depression and
anxiety to appellant’s personality disorder “that tends to cause interpersonal conflicts which may
result in negative response towards him about which he then feels emotionally stressed.” He also
stated that appellant’s emotional condition was not affecting his sleep, but rather that his sleep
problem was more related to obstructive sleep apnea syndrome and chronic pain syndrome.
Dr. Bhandary opined that appellant could return to work, but recommended that he work at a
different branch of the employing establishment with new managers.
By decision dated November 7, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish a causal relationship between his diagnosed condition
and accepted employment factors. It accepted that the employing establishment settled an age
discrimination EEO complaint. However, OWCP found that appellant had not established
compensable factors in regard to his desire to work a specific shift, that his lack of sleep affected
his service-connected disabilities.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.4 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 136 (1999).

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her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.11
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of incidents and
conditions at work. OWCP denied his emotional condition on the grounds that the medical
evidence did not establish a causal relationship between his diagnosed condition and the
accepted factor of employment. The Board must determine whether appellant has established an
employment factor under the terms of FECA. In conducting a de novo review of the evidence,
the Board finds that he has not substantiated a compensable factor of employment. Appellant did
not attribute his emotional condition to difficulties in performing the functions of his position.
6

Cutler, supra note 3.

7

Id.

8

Charles D. Edwards, 55 ECAB 258 (2004).

9

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
10

Roger Williams, 52 ECAB 468 (2001).

11

Alice M. Washington, 46 ECAB 382 (1994).

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He instead attributed his emotional condition to error or abuse in the administrative functions of
his employer including improper changes in his work schedules, a denial of a change in his
vacation schedules, disciplinary actions, seniority determination and pay rates. Appellant also
alleged harassment through these actions of the employing establishment.
Appellant alleged that he improperly received a letter of warning and seven-day
suspension for wearing blue jeans to work and for not completing a task in a timely manner. He
filed a grievance, EEO complaint and MSPB complaint and received a settlement from the
employing establishment including removal of the letter of warning and compensatory damages.
The settlement agreement stated that the agreement did not constitute an admission of violation
of any statute, rule, regulation or legal obligation. The Board has held that the mere fact that an
employing establishment lessens a disciplinary action taken towards the employee does not
substantiate that the employing establishment acted in an abusive manner.12 The record does not
contain any further evidence that the employing establishment erred in the disciplinary and other
actions covered by the settlement agreement. The Board finds that appellant has not established
a compensable factor of employment in regard to the actions implicated by this settlement
agreement.
Appellant alleged that the employing establishment improperly changed his work
schedule from a report time at 4:30 a.m. to a report time at 1:30 a.m. He has stated and his
supervisor confirmed that appellant did not report to work at 1:30 a.m. and instead used sick
leave until 4:30 a.m. The Board has held that a change in an employee’s duty shift can be a
factor of employment.13 However, a change in duty shift does not arise as a compensable factor
per se. The factual circumstances surrounding the employee’s claim must be carefully examined
to discern whether the alleged injury is being attributed to the inability to work his or her regular
or specially assigned job duties due to a change in the duty shift, i.e., a compensable factor
arising out of and in the course of employment or whether it is based on a claim which is
premised on the employee’s frustration over not being permitted to work a particular shift or to
hold a particular position.14 The employing establishment stated that appellant’s hours were
changed due to the needs of the service and also noted that appellant’s medical condition
requiring specific hours was due to sleep apnea, not an accepted work-related condition. In a
statement dated June 23, 2011, appellant’s supervisor for Tour 2 stated that appellant did submit
medical documentation with his work hours’ restrictions, but that she advised him that as the
medical condition of sleep apnea was not work related he should apply for light duty.
The Board finds the fact that appellant did not attempt to perform the reassigned duties is
distinguishable from situations where an employee actually attempts to perform the reassigned
duties and becomes upset over an inability to satisfactorily perform such duties. Appellant’s
apprehension that he would not be able to perform his new work duties, due to a

12

See Michael Thomas Plante, 44 ECAB 510, 516 (1993) (finding that even though appellant won grievances, the
record did not contain evidence which established error by the employing establishment).
13

Dodge Osborne, 44 ECAB 849 (1993).

14

Helen P. Allen, 47 ECAB 141 (1995).

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nonemployment-related condition, without any actual attempt to perform these duties, was selfgenerated and compensable.15
Appellant did not submit any additional evidence corroborating or substantiating the
additional employment events and incidents alleged. Without evidence of error or abuse he has
not established compensable factors of employment in regard to the allegations made.
Appellant also alleged a general pattern of harassment, discrimination and retaliation
against him by the supervisors at the employing establishment for the filing of EEO and merit
system complaints. The Board has held that a claimant must establish a factual basis for his
allegations with probative and reliable evidence.16 Appellant has submitted insufficient evidence
to establish his allegations. He submitted copies of several complaints and grievances filed.
Appellant also submitted a settlement agreement which did not establish any wrongdoing on the
part of the employing establishment. He did not provide any evidence to support his allegations.
As noted, in order to establish harassment there must be evidence that the acts alleged or
implicated by the employee did in fact occur.17 Appellant submitted numerous documents
relating to various EEO claims. The Board notes that the record does not contain a final decision
relating to any of his claims explaining the basis for a finding of fault. The evidence of record is
not sufficient to establish a compensable factor of employment regarding appellant’s allegations
of harassment and discrimination.
Where a claimant has not established any compensable employment factors, the Board
need not consider the medical evidence of record.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not substantiated a compensable factor of employment
and has not met his burden of proof to establish his emotional condition claim.

15

See Mary Margaret Grant, 48 ECAB 696 (1997).

16

T.G., 58 ECAB 189 (2006).

17

Paul Trotman-Hall¸ 45 ECAB 229 (1993).

18

A.K., 58 ECAB 119 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the November 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: June 22, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION
OUTPATIENT CLINIC, Orem, UT, Employer
__________________________________________

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Appearances:
David J. Holdsworth, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-153
Issued: April 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2006 appellant filed a timely appeal from the October 26, 2006 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative, finding that
she received an overpayment in the amount of $2,246.35, denying waiver of the overpayment
and ordering her to repay the overpayment in the amount of $100.00 per month. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,246.35; and (2) whether the Office properly denied waiver of the overpayment.
FACTUAL HISTORY
On January 17, 2003 appellant, then a 56-year-old licensed nurse practitioner, filed an
occupational disease claim. She alleged that, on December 16, 2002, she first realized that her
left wrist ligament strain was caused by her federal employment. Appellant stated that she

worked at a computer station for several weeks with a computer that was not aligned properly,
which caused a strain on her left outer wrist and hand. By letter dated April 22, 2003, the Office
accepted appellant’s claim for left wrist sprain. The Office paid her appropriate compensation.
On May 6, 2003 appellant filed a claim for compensation (Form CA-7) to buy back leave
for the period March 5 through April 10, 2003. She indicated that she used 6 hours of sick leave
and 2.75 hours of annual leave during the claimed period to attend medical appointments and
physical therapy.
By letter dated June 27, 2003, the Office approved appellant’s claim. It advised her that
the amount of compensation paid to her was originally $93.96 and subsequently changed to
$97.96. The Office further advised appellant that the full payment had been made to the
employing establishment and that, if she had not already done so, she should make arrangements
with the employing establishment to repay the balance for the repurchase of her leave.
On July 4, 2003 the Office issued a check in the amount of $2,246.35 to appellant for her
leave buyback claim and a check in the amount of $93.96 to the employing establishment.
In a June 28, 2004 letter, the employing establishment stated that on July 8, 20041 it
immediately informed the Office that a mistake had been made in issuing the $2,246.35 check to
appellant. It also contacted appellant to advise her about the mistake.
On May 20, 2005 the Office made a preliminary determination that appellant received an
overpayment in the amount of $2,246.35 because she received a check for leave buyback
compensation for the period March 5 through April 10, 2003 that should have been issued to the
employing establishment. The Office noted that the employing establishment received a check
in the amount of $93.96, which was owed to appellant. It determined that appellant was at fault
in the creation of the overpayment because she should have been aware that she was not entitled
to compensation for the stated period as the employing establishment had already paid her for
this period in the form of personal leave. Appellant was advised that she could request a
telephone conference, a final decision based on the written evidence only or a hearing within
30 days if she disagreed that the overpayment occurred, with the amount of the overpayment or
if she believed that recovery of the overpayment should be waived. The Office requested that
she complete an accompanying overpayment recovery questionnaire (Form OWCP-20) and
submit financial documents in support thereof within 30 days.
On June 16, 2005 appellant requested a hearing. She submitted an OWCP-20 form dated
June 16, 2005 with no further evidence. Appellant indicated that she had a monthly income in
the amount of $2,280.00. She alleged monthly expenses including $850.00 for rent; $120.00 for
food; $30.00 for clothing; $160.00 for utilities; $440.00 for other expenses; $120.85 and $308.00
for credit union loans; and $130.00, $45.00 and $20.00 for credit card bills, totaling $2,213.85.
Appellant stated that she had $10.00 cash in hand and $30.00 each in her checking and savings
accounts, totaling $70.00. She indicated that when she received the check in question, she was
1

It appears that the employing establishment inadvertently stated that on July 8, 2004, rather than on July 8,
2003, it immediately informed the Office of its mistake in issuing appellant a check in the amount of $2,246.35 on
July 4, 2003.

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not sure about its purpose. Appellant telephoned the Office and inquired about the amount and
purpose of the check. The Office informed her that it was her leave buyback compensation and
not to worry about it. Appellant stated that she again questioned whether the Office was sure she
was supposed to receive the check. The Office told her that it was fine and not to worry.
Appellant stated that she did not know the check was not hers and that she would not have kept
it. She noted that she was eligible for a schedule award and that if she were found to be at fault
in the creation of the overpayment, which she did not believe was so then, possibly some of the
money could be recovered from her schedule award.
At the hearing held on July 17, 2006, appellant testified that she called the Office after
receiving the $2,246.35 check and asked about its purpose and her entitlement to it. She was
advised that it was for her leave buyback request and that she could cash it. Appellant further
testified that she cashed the check and was later advised by the Office that it had been issued in
error. She stated that she did not recall receiving a telephone call from the employing
establishment about the Office’s mistake in issuing the check to her. The Office hearing
representative left the record open for 30 days so that appellant could submit copies of all
monthly bills and expenses for review.
By letter dated August 7, 2006, the employing establishment stated that neither it nor
appellant was entitled to the check in question. It noted that appellant’s CA-7 form and leave
buyback worksheet for the time period March 5 through April 10, 2003 requested 8.75 hours of
leave buyback. This leave was for medical appointments prior to appellant’s surgery on
June 24, 2003. The employing establishment further noted that appellant submitted a CA-7 form
on July 30, 2003 for compensation and received $1,154.92 for her leave without pay hours. The
employing establishment reiterated its previous statement that it had notified the Office and
appellant that her leave buyback request had been incorrectly processed before the check was
cashed.
By letter dated August 23, 2006, appellant reiterated that she did not recall the employing
establishment calling her about the Office’s incorrect payment and advising her not to cash the
check in question. She stated that although, she did not have a record of the call, she knew that
the employing establishment had a record of it and did not question the validity of its contention.
Appellant indicated that if she did receive this call, then she must have done so after she spoke to
the Office and was advised by it to cash the check.
By decision dated October 26, 2006, the hearing representative found that appellant was
without fault in the creation of the overpayment in the amount of $2,246.35 but denied waiver.
The hearing representative found that her monthly income in the amount of $2,300.002 exceeded
her monthly expenses of $1,554.853 and concluded that she did not need substantially all of her
current income to meet her ordinary and necessary living expenses. The hearing representative

2

Appellant testified at the July 17, 2006 hearing that her monthly income was approximately $2,300.00.

3

The hearing representative stated that, since appellant did not submit copies of any bills to verify her claimed
expenses, he credited the lower amount claimed for her expenses and disallowed other claimed expenses.

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ordered appellant to repay the overpayment in the amount of $100.00 per month because she
failed to submit adequate financial documents to determine her financial status.4
LEGAL PRECEDENT -- ISSUE 1
Section 10.425 of Title 20 of the Code of Federal Regulations, titled “May compensation
be claimed for periods of restorable leave?” provides:
“The employee may claim compensation for periods of annual and sick leave
which are restorable in accordance with the rules of the employing establishment.
Forms CA-7 and CA-7b are used for this purpose.”5
In a leave buyback case, an injured employee uses sick or annual leave to prevent wage
loss after an employment injury. If a claim is accepted and the work absences would otherwise
be compensable under the Federal Employees’ Compensation Act, the employee may wish to
buy back this leave from the employing establishment. An employee may decide to take sick
and/or annual leave in order to avoid possible interruption of income. If such employee does so
decide and his or her claim for compensation is subsequently approved, such employee may
arrange with his or her employing establishment to “buy back” the leave used and have it
reinstated to such employee’s account. The compensation, to which the employee is entitled,
may be used to pay a part of the “back” cost and the employee shall be obligated to pay the
balance. No compensation payments shall be paid, however, while the employee is still in leave
status. Arrangements to “buy back” leave, shall be made with the employing establishment.6
ANALYSIS -- ISSUE 1
The record shows that the Office incorrectly issued a check in the amount of $2,246.35
for leave buyback compensation covering the period March 5 through April 10, 2003 and that
appellant acknowledged receiving and cashing this check. During the stated time period
appellant had already received sick and annual leave pay from the employing establishment for
her medical appointments. The Board, therefore, finds that an overpayment occurred in the
amount of $2,246.35.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.7 The statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment recovery [of an
4

The Board notes that on February 5, 2007, the Office granted a schedule award to appellant for a seven percent
impairment of the left upper extremity.
5

20 C.F.R. § 10.425.

6

James R. Rowell, 39 ECAB 869 (1988); see also Louis H. Campbell, Docket No. 01-587 (issued
December 26, 2001).
7

See Robert Atchison, 41 ECAB 83, 87 (1989).

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overpayment] by the United States may not be made when [an] incorrect payment has been made
to an individual who is without fault and when adjustment or recovery would defeat the purpose
of [the Act] or would be against equity and good conscience.”8
Section 10.436 of the implementing regulation9 provides that recovery of an overpayment
would defeat the purpose of the Act if such recovery would cause hardship in a currently or
formerly entitled beneficiary because: the beneficiary from whom the Office seeks recovery
needs substantially all of his or her current income (including compensation benefits) to meet
current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed
a specified amount as determined by the Office from data furnished by the Bureau of Labor
Statistics.10 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.11
Section 10.437 provides that recovery of an overpayment is considered against equity and
good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.12
Section 10.438 of the regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of the waiver.13
ANALYSIS -- ISSUE 2
Appellant submitted her overpayment recovery questionnaire which listed her expenses
and income. However, she did not provide sufficient support for her expenses. No copies of
bills and expenses were submitted, information that had been specifically requested by the Office
hearing representative. As appellant failed to provide sufficient documentation supporting her

8

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

9

20 C.F.R. § 10.436.

10

An individual’s assets must exceed a resource based on $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent plus $960.00 for each additional dependent. This includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1)(b) (December 23, 2004).
11

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

12

20 C.F.R. § 10.437.

13

Id. at § 10.438.

5

finances, the Office did not have the necessary financial information to determine whether
recovery of the overpayment would defeat the purpose of the Act or if recovery would be against
equity and good conscience.14
Consequently, as appellant did not submit the financial information required by section
10.438 of the Office’s regulation, which was necessary to determine eligibility for waiver, the
Office properly denied waiver of recovery of the overpayment. Inasmuch as appellant has not
shown that recovery of overpayment would defeat the purpose of the Act or would be against
equity and good conscience, the Board finds that the Office properly denied waiver of the
overpayment of compensation.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $2,246.35. The Board further finds that the
Office properly denied waiver of the overpayment.15
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
14

See id. (in requesting waiver, the overpaid individual has the responsibility for providing financial information).

15

With respect to the recovery of the overpayment, the Board notes that its jurisdiction is limited to review of
those cases where the Office seeks recovery from continuing compensation benefits under the Act. Terry A. Keister,
56 ECAB ___ (Docket No. 04-1136, issued May 23, 2005); see also Albert Pineiro, 51 ECAB 310 (2000). As
appellant was no longer receiving compensation benefits at the time of the Office’s October 26, 2006 decision, the
Board lacks jurisdiction to review the recovery of the overpayment.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, BIRMINGHAM
PLANT, Birmingham, AL, Employer
__________________________________________

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

Docket No. 08-419
Issued: June 24, 2008

Case Submitted on the Record

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

JURISDICTION
On November 21, 2007 appellant filed a timely appeal from a September 17, 2007 merit
decision of the Office of Workers’ Compensation Programs finding that she received an
overpayment of compensation and that she was at fault in creating the overpayment.1 Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of $993.55 for the period
June 27 through July 7, 2007 because she received compensation for disability after she returned
to work; and (2) whether she was at fault in creating the overpayment.

1

The record also contains a March 26, 2007 schedule award decision. Appellant has not appealed this decision
and thus it is not before the Board. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On September 26, 2004 appellant, then a 36-year-old mail clerk, filed an occupational
disease claim alleging that she sustained asthma, chronic obstructive pulmonary disease and
chronic bronchitis due to factors of her federal employment. The Office accepted her claim for
an aggravation of chronic airway obstruction pulmonary disease, an aggravation of chronic
obstructive asthma and an aggravation of chronic bronchitis.2
Appellant stopped work in October 2006. The Office paid her compensation for
disability beginning October 16, 2006. On June 20, 2007 the employing establishment offered
appellant a position as a clerk/lobby assistant. The employing establishment instructed her to
report for work on June 27, 2007 if she accepted the position. On June 26, 2007 appellant
accepted the position but indicated that she was unable to begin work on June 27, 2007 because
of an upper respiratory infection. She noted that she would advise of her return to work date
after an appointment with her attending physician.
In a report of termination of disability and/or payment form dated July 16, 2007, (Form
CA-3), the employing establishment noted that appellant resumed work on June 27, 2007. It
requested that the Office remove her from the periodic rolls effective that date. In a letter dated
July 24, 2007, the Office informed appellant that she would receive a compensation check for the
period June 10 to July 7, 2007. It advised her that, as she had returned to work on June 27, 2007,
she should return the check to avoid an overpayment of compensation.
Appellant informed the Office by telephone on July 31, 2007 that she had returned to
work on July 23, 2007 and not June 27, 2007. A claims examiner requested that she submit
medical evidence showing that she could not work until July 23, 2007 because of her
employment injury.
On August 2, 2007 the Office notified appellant of its preliminary determination that she
received an overpayment of $993.55 for the period June 27 through July 7, 2007 because she
received compensation for total disability after she returned to work. The Office advised
appellant of its preliminary determination that she was at fault in the creation of the
overpayment. It requested that she complete the enclosed overpayment recovery questionnaire
and submit supporting financial documents. The Office notified appellant that, within 30 days of
the date of the letter, she could request a telephone conference, a final decision based on the
written evidence or a prerecoupment hearing.
On September 7, 2007 appellant telephoned the Office and explained that she had signed
the job offer on June 27, 2007 but did not return to work until July 23, 2007. She submitted a
July 20, 2007 letter from the employing establishment noting that her attending physician had
released her to return to work. The employing establishment instructed appellant to report for
work on July 23, 2007. On September 11, 2007 the employing establishment contacted the
2

By decision dated April 6, 2006, the Office granted appellant a schedule award for a 30 percent permanent
impairment of the lungs. She requested an oral hearing, which was held on January 9, 2007. By decision dated
March 26, 2007, the hearing representative affirmed the April 6, 2006 schedule award determination. As previously
noted, appellant has not appealed this decision and thus it is not before the Board.

2

Office and indicated that she had resumed work on July 23, 2007 but could not function in the
offered position due to dust. Appellant worked intermittently until August 20, 2007 when she
began working in a dust-free position.
By decision dated September 17, 2007, the Office finalized its finding that appellant
received an overpayment of compensation in the amount of $993.55. The Office determined that
the overpayment arose because she received compensation from June 27 through July 7, 2007
even though she had returned to work on June 27, 2007. The Office further finalized its
preliminary finding that appellant was at fault in creating the overpayment because she did not
return the check for the period after she resumed work as instructed. The Office instructed her to
submit a check for the entire amount as repayment of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.4
Section 8116 of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.5 The Office’s regulations state in pertinent part: “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”6
In determining whether a claimant 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 a discussion of the evidence 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

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8102.

5

5 U.S.C. § 8116(a).

6

20 C.F.R. § 10.500.

7

5 U.S.C. § 8124 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(e) (March 1997); see
also Paul M. Colosi, 56 ECAB 294 (2005).

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an employment-related aggravation of
chronic obstruction pulmonary disease, an aggravation of chronic obstructive asthma and an
aggravation of chronic bronchitis. The Office paid her compensation for disability beginning
October 16, 2006.
In its September 17, 2007 overpayment decision, the Office determined that appellant
received a $993.55 overpayment of compensation for the period June 27 through July 7, 2007
because she received wage-loss compensation after she returned to work. The Office, however,
has not adequately explained its finding that she returned to work on June 27, 2007 given the
conflicting evidence regarding the date she resumed work.
On June 20, 2007 the employing establishment offered appellant a job as a clerk/lobby
assistant with a report to work date of June 27, 2007. She accepted the position on June 26, 2007
but indicated that she could not return to work until after June 29, 2007 because of an upper
respiratory infection and pending physician’s appointment. On July 16, 2007 the employing
establishment submitted a Form CA-3 informing the Office that appellant had returned to work
on June 27, 2007 and that it should stop payment of compensation for disability effective that
date. In a July 20, 2007 letter, however, the employing establishment instructed her to return to
work on July 23, 2007. Appellant notified the Office on July 31 and September 7, 2007 that she
had returned to work on July 23, 2007 rather than June 27, 2007. On September 11, 2007 the
employing establishment noted that she had returned to work on July 23, 2007 but could not
work in the offered position due to dust. The employing establishment did not specifically
address whether July 23, 2007 was appellant’s first day back at work. The Office concluded that
appellant returned to work on June 27, 2007 and did not discuss the evidence supporting that she
did not resume work until July 23, 2007 nor make appropriate factual findings after analyzing the
evidence. The Office is required by statute and regulation to make findings of fact.9 The case
will be remanded to the Office to produce a decision containing adequate findings and reasoning
regarding whether appellant received an overpayment of compensation. After such development
as it deems necessary, the Office should issue an appropriate decision.10
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation.11 The case is remanded to the Office for the issuance
of an appropriate decision.

9

5 U.S.C. § 8124(a); 20 C.F.R. § 10.126; Paul M. Colosi, supra note 8.

10

The Board notes that as the Office was paying appellant compensation for disability due to her employment
injury, it has the burden of proof to terminate compensation as of the date it finds that she was no longer totally
disabled. Paul L. Steward, 54 ECAB 824 (2003).
11

In view of the Board’s disposition of whether an overpayment of compensation exists, it is premature to address
the issues of the amount of overpayment and the fault determination.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2007 is set aside and the case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: June 24, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, JAMES A. FARLEY
POST OFFICE, New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0908
Issued: October 25, 2019

Case Submitted on the Record

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

JURISDICTION
On March 26, 2019 appellant, through counsel, filed a timely appeal from a February 12,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral shoulder
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 27, 2016 appellant, then a 45-year-old modified general clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed left shoulder derangement
and impingement syndrome due to factors of her federal employment including reaching above
her neck to answer the telephone.3 She identified April 21, 2016 as the date she first became aware
of her condition, and May 2, 2016 as the date she first realized her condition was caused or
aggravated by her employment.
In an undated statement, appellant indicated that on April 21, 2016 she reached for the
telephone with her left arm and placed it next to her right ear and felt a sharp shooting pain from
her shoulder to her left arm.
Appellant was treated in the emergency room on April 21, 2016 by Dr. Rana Biary, an
emergency medical specialist, for chronic left shoulder pain. Dr. Biary noted that appellant’s
history was significant for left shoulder rotator cuff tear and pinched nerve. She indicated that
appellant’s left shoulder pain was similar to pain experienced in her prior injury. Dr. Biary
performed a trigger point injection.
In a report and corresponding letter dated May 23, 2016, Dr. Igor Cohen, a Board-certified
neurologist, examined appellant and noted that on April 21, 2016 she was repeatedly answering
the phone using her left arm, twisting her left shoulder. Dr. Cohen noted moderate tenderness in
the left rotator cuff, restricted range of motion with pain, positive impingement sign, and intact
muscle strength in upper and lower extremities except at 4/5 in the left deltoid, biceps, triceps. He
noted intact sensation to light touch and pinprick in all dermatomes except hypoesthesia in the left
from C5-C6 dermatomes. Dr. Cohen reported a history of work-related injuries and findings
consistent with left shoulder derangement and advised that appellant was totally disabled. He
opined that within a reasonable degree of medical certainty that these conditions were causally
related to the work duties performed since February 23, 2015 which included repetitive reaching
above her shoulder with the left arm to answer phones with an already “damaged left shoulder. ”
Dr. Cohen indicated that such duties would have exacerbated her left shoulder injury resulting in
left shoulder impingement and left shoulder derangement.

3

Appellant was working limited duty as a result of a previous employment-related left shoulder injury, accepted
for a shoulder strain. That claim was assigned OWCP File No. xxxxxx113. Appellant underwent authorized left
shoulder surgeries on April 22, 2005 and December 15, 2006. She returned to work in a part-time, limited-duty
capacity, and OWCP paid her compensation for intermittent wage loss from April 17, 2015 through April 29, 2016.
On May 25, 2017 OWCP administratively combined File No. xxxxxx113 with the present claim. File No. xxxxxx113
is designated as the master file.

2

On a corresponding form report dated June 13, 2016 Dr. Cohen checked a box marked
“yes” indicating that the employment incident that appellant described was the “competent medical
cause” of her diagnosed conditions.
In a development letter dated July 29, 2016, OWCP advised appellant that the evidence of
record was insufficient to establish that her diagnosed left shoulder conditions were causally
related to her employment activities. It notified her of the type of additional evidence needed,
including a detailed factual statement describing the activities that she believed contributed to her
condition and a report from her attending physician addressing causal relationship between any
diagnosed condition and factors of her federal employment. OWCP afforded appellant 30 days to
submit the requested evidence.
OWCP subsequently received a form report dated July 11, 2016, wherein Dr. Cohen
diagnosed other specific joint derangements of the left shoulder and noted that appellant remained
disabled from work.
A magnetic resonance imaging (MRI) scan of appellant’s left shoulder, dated August 17,
2016, revealed a mild partial thickness supraspinatus tendon tear affecting the articular greater
than bursal surfaces, minor subacromial spur formation, and minimal spurring of glenoid rim
anteriorly with mild diffuse labral degeneration.
By decision dated September 2, 2016, OWCP denied appellant’s claim, finding that the
medical evidence submitted did not establish that the claimed medical condition was causally
related to the established work-related events.
On September 13, 2016 appellant requested a telephonic hearing before an OWCP hearing
representative. Additional evidence was subsequently received.
Appellant underwent physical therapy treatments from January 6, 2015 to July 8, 2016.
OWCP received a January 12, 2016 report from Dr. Danya E. Reich, a Board-certified
family practitioner, noted in a handwritten report dated January 12, 2016 that she had treated
appellant for severe neck pain likely due to her head and neck positioning while using the phone
at work. Dr. Reich indicated that appellant needed a workplace evaluation for a new phone with
headset or an alternative solution to correct her head positioning.
In reports dated March 21 and April 20, 2016, Dr. Cohen noted findings on examination of
the left shoulder of moderate tenderness in the rotator cuff, restricted range of motion with pain,
positive impingement test, and intact muscle strength in upper and lower extremities except 4/5 in
the left deltoid, biceps, Dr. Cohen diagnosed history left shoulder derangement, left shoulder
impingement syndrome, and status post left shoulder arthroscopies. He advised that appellant
returned to a sedentary position on February 23, 2015 with occasional lifting up to five pounds, no
reaching at the shoulder level or overhead, and no pushing or pulling heavy objects or operating
heavy machinery. In a form report dated April 3, 2017, Dr. Cohen diagnosed other specific joint
derangements of the shoulder and opined that appellant remained totally disabled from work.

3

In a statement dated April 17, 2016, appellant’s coworker, B.C., indicated that on at least
three occasions she relieved appellant from phone duties prior to the scheduled time due to her
pain and stiffness in her shoulder.
A hearing was held on April 5, 2017. By decision dated May 18, 2017, OWCP’s hearing
representative affirmed the September 2, 2016 decision.
On September 1, 2017 appellant, through a representative, requested reconsideration and
submitted additional evidence. A left shoulder MRI scan dated July 10, 2017 revealed mild diffuse
rotator cuff tendinosis, low-to-moderate grade elongated articular-sided tear within the anterior
supraspinatus tendon without significant change, no full thickness rotator cuff tear, mild
acromioclavicular (AC) joint impingement, and a superior labrum from anterior to posterior
position (SLAP) tear which appeared to be new from the prior study. A right shoulder MRI scan
revealed mild diffuse rotator cuff tendinosis, low grade curvilinear articular sided tear within the
anterior supraspinatus tendon, mild degenerative changes at the AC joint, and moderate AC joint
impingement.
On July 14, 2017 appellant was treated by Dr. Marc Levinson, a Board-certified physiatrist,
for bilateral shoulder pain. She provided a history of injury consistent with using her shoulder to
answer telephones at work. Dr. Levinson opined that this activity resulted in a new SLAP tear to
the left shoulder. He further opined that as a result of favoring the left shoulder she developed
tendinosis and a low grade tear in the right shoulder rotator cuff from overuse. Findings on
examination of the left shoulder revealed well-healed arthroscopic scars, limited range of motion,
strength was 4/5, anterior joint line tenderness, and positive Neer, Hawkins, and O’Brien signs.
Examination of the right shoulder revealed strength of 4/5, and positive Neer and Hawkins signs.
Dr. Levinson diagnosed internal derangement of the left shoulder, right shoulder tendinitis, and
rotator cuff tear arthropathy of the right shoulder.
By decision dated November 30, 2017, OWCP denied modification of the May 18, 2017
decision.
On November 23, 2018 appellant through counsel requested reconsideration and submitt ed
additional evidence.
In a July 30, 2018 report, Dr. Cohen noted his treatment of appellant’s shoulders.
Appellant reported that her condition significantly worsened on April 21, 2016 when she
accidentally twisted her left shoulder while repeatedly reaching for and answering phones at work.
Dr. Cohen diagnosed left shoulder derangement, left shoulder SLAP tear, consequential right
shoulder derangement, bilateral shoulder impingement, bilateral shoulder rotator cuff tendinitis ,
and status post left shoulder arthroscopy twice. He continued to note that she was totally disabled.
On November 2, 2018 Dr. Levinson saw appellant in follow up for pain and limitation in
both shoulders. Appellant reported that on April 21, 2016 she was reaching for the telephone at
work and developed significant pain in the left shoulder radiating down her left arm. Her history
was significant for a prior injury to her left shoulder which required surgery. Dr. Levinson noted
findings on examination of the left shoulder revealed well-healed arthroscopic surgery scars,
limited range of motion, strength of 3/5, anterior joint line tenderness, positive Neer, Hawkins, and

4

O’Brien signs, and supraspinatus atrophy. He diagnosed internal derangement of the left shoulder
and midline rotator cuff tear of the right shoulder. Dr. Levinson noted that the left shoulder injury
was causally related to appellant’s injury of April 21, 2016 and the right shoulder was
consequential to the right shoulder injury. He opined that the continued overuse of the left shoulder
resulted in damage to the cells of the tissues of the shoulder tendons.
By decision dated February 12, 2019, OWCP denied modification of the November 30,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 6
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee. 7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence. 8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee. 9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship. 10

4

Supra note 2.

5

M.S., Docket No. 18-1280 (issued March 12, 2019).

6

S.C., Docket No. 18-1242 (issued March 13, 2019).

7

P.D., Docket No. 17-1885 (issued September 17, 2018).

8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral
shoulder conditions causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted an emergency room note by Dr. Biary,
following treatment on April 21, 2016 for chronic left shoulder pain, who diagnosed rotator cuff
tear and a pinched nerve. Dr. Biary explained that appellant had prior, similar shoulder pain due
to a previous employment injury. She did not, however, provide an opinion as to the cause of the
diagnosed conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.12 The report of Dr. Biary, therefore, is insufficient to establish appellant’s claim.
On May 23 and July 11, 2016 Dr. Cohen treated appellant for left shoulder pain. 13 He
noted appellant’s prior left shoulder surgeries as well the April 21, 2016 work incident in which
she repeatedly used her left arm to reach and answer the phones. Dr. Cohen diagnosed history of
work-related injuries and findings consistent with left shoulder derangement. Although he
diagnosed left shoulder derangement, he did not specifically address the cause of the diagnosed
condition. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.14
On May 23, 2016 Dr. Cohen indicated that appellant was injured in 2004 and remained
totally disabled until February 23, 2015 when she returned to a limited-duty position for six hours
a day. He diagnosed left shoulder derangement and left shoulder impingement syndrome and
opined within a reasonable degree of medical certainty that these conditions were caused by
repetitive reaching above the shoulder with the left arm to answer phones from February 23, 2015
to April 21, 2016. Although Dr. Cohen opined that the incident appellant described was the
competent cause of her injury he did not provide a well-reasoned medical explanation with
supporting objective findings as to how the claimed work-related activities directly caused or
aggravated a medical condition. The Board has held that a report is of limited probative value

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

In reports dated March 21 and April 20, 2016, Dr. Cohen diagnosed history left shoulder derangement, left
shoulder impingement syndrome, and status post left shoulder arthroscopy twice. These reports have no relevance to
the current issue of causal relationship as they predate the April 21, 2016 employment incident.
14

Supra note 12.

6

regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was related to employment factors. 15
On July 30, 2018 Dr. Cohen treated appellant and noted her history of injury and
preexisting left shoulder condition from her prior claim. He diagnosed left shoulder derangement,
left shoulder SLAP tear, consequential right shoulder derangement, bilateral shoulder
impingement, bilateral shoulder rotator cuff tendinitis, and status post left shoulder arthroscopy
twice. Dr. Cohen did not provide an opinion as to the cause of the diagnosed conditions, thus this
report is of no probative value and is insufficient to establish appellant’s claim.16
Appellant also submitted a series of form reports dated May 23 and July 11, 2016 and
April 3, 2017, in which Dr. Cohen noted a date of injury of April 21, 2016 and diagnosed other
specific joint derangements of the shoulder. Dr. Cohen advised that appellant was totally disabled
from work. He checked a box marked “yes” indicating that the diagnosed conditions were caused
by her workplace duties. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion has little probative value and is insufficient to establish a claim. 17
Appellant underwent MRI scans of the left and right shoulders. The Board has held that
reports of diagnostic tests lack probative value as they do not provide an opinion on causal
relationship between appellant’s employment duties and a diagnosed condition. 18
Appellant submitted various reports from a physical therapist19 dated from January 6, 2015
to July 8, 2016. These reports are insufficient to satisfy appellant’s burden of proof as physical
therapists are not considered physicians as defined under FECA and their reports are of no
probative value.20
In a handwritten note dated January 12, 2016, Dr. Reich opined that appellant’s neck pain
is “likely” due to her head/neck position of phone at work. However, this report is speculative.
The Board has held that medical opinions that are speculative or equivocal in character are of
diminished probative value.21 Therefore, this report is insufficient to meet appellant’s burden of
proof.

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

16

Supra note 12.

17

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 3234 (2003).

18

See J.M., Docket No. 17-1688 (issued December 13, 2018).

19

T.H., Docket No. 18-1736 (issued March 13, 2019).

20

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006).
21

D.D., 57 ECAB 734 (2006).

7

In July 14, 2017 and November 2, 2018 reports, Dr. Levinson noted appellant’s history of
injuries to her left shoulder and her current complaints due to employment duties from reaching
above her shoulder and twisting to answer a telephone. He initially diagnosed internal
derangement of the left shoulder, right shoulder tendinitis , and rotator cuff tear arthropathy of the
right shoulder and later diagnosed internal derangement of the left shoulder, midline rotator cuff
tear of the right shoulder and opined that left shoulder injury was causally related to appellant ’s
injury of April 21, 2016. Dr. Levinson concluded that the continued overuse of appellant’s left
shoulder resulted in damage to the cells of the tissues of the shoulder tendons. The Board finds
that, although Dr. Levinson supported causal relationship, he did not provide medical rationale
explaining his conclusory opinion regarding causal relationship between appellant’s left shoulder
tear, or a consequential right shoulder condition, and the accepted factors of employment. 22 Such
rationale is particularly necessary as appellant had preexisting shoulder conditions and he failed to
differentiate between the symptoms of the preexisting condition and the effects of the current
conditions. Therefore, this report is also insufficient to meet appellant’s burden of proof.
On appeal counsel asserts that appellant submitted sufficient evidence to establish that she
developed a left shoulder condition causally related to repetitively reaching for a telephone at
work. As discussed, however, the medical evidence of record is insufficient to establish causal
relationship between her diagnosed conditions and the accepted employment factors. As appellant
has not submitted rationalized medical evidence, the Board finds that she has not met her burden
of proof to establish her occupational disease claim. 23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral
shoulder conditions causally related to the accepted factors of her federal employment.

22

See T.M., Docket No. 08-0975 (issued February 6, 2009).

23

P.D., supra note 7.

8

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF DEFENSE, COMMISARY
AGENCY, Fort Lee, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kevin R. Stults, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-989
Issued: December 11, 2013

Oral Argument Held September 5, 2013

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 11, 2013 appellant, through his attorney, filed a timely appeal of the
September 11, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) which
found that appellant received an overpayment 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 the case.2

1
2

5 U.S.C. §§ 8101-8193.

Under the Board’s Rules of Procedure appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Board. One hundred and eighty days from
September 11, 2012, the date of OWCP’s decision, was March 10, 2013. Since using March 15, 2013, the date the
appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is
considered the date of filling. The date of the U.S. Postal Service postmark is March 11, 2013. As this was the first
business day following Sunday, March 10, 2013, the appeal was timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $5,151.08 was
created from August 31, 2008 to April 9, 2011 due to the failure to deduct health benefit
insurance premiums and optional life insurance premiums; (2) whether it properly denied waiver
of the overpayment; and (3) whether OWCP properly determined the overpayment would be
recovered by deducting $200.00 from continuing compensation payments.
FACTUAL HISTORY
On November 23, 1993 appellant, then a 33-year-old full time contract specialist,
sustained a neck injury after being involved in an automobile accident on October 31, 1993.
OWCP accepted his claim for acute cervical and lumbar strain, post-traumatic stress disorder,
major depression and postconcussion syndrome. Appellant stopped work on October 31, 1993
and retired in 1997. He elected to receive an annuity through the Civil Service Retirement
System under the Office of Personal Management (OPM).
On August 20, 2007 appellant contacted OWCP and advised that he sought to be placed
on FECA daily compensation rolls instead of OPM rolls. In an election benefits form dated
November 21, 2007, he elected to receive FECA benefits. In a letter dated April 3, 2008, OWCP
notified OPM of appellant’s election to receive FECA benefits.
On August 7, 2008 OPM confirmed that appellant received retirement annuity benefits
from November 22, 1997 to July 31, 2008. It advised that on November 21, 2007 he elected to
receive FECA benefits. OPM noted that appellant was enrolled in the Federal Employee’s
Health Benefit (FEHB) plan under enrollment code 104 and that FEHB enrollment was being
transferred to OWCP because he elected to receive its benefits. It noted that premiums should be
withheld beginning November 25, 2007. OPM noted that, with regards to the Federal
Employees’ Group Life Insurance Program (FEGLI), appellant was not covered.
On October 14, 2010 appellant contacted OWCP to inquire about his health benefits. He
received a letter from OPM informing him that he was not currently paying for health benefit
coverage. On March 30, 2011 OWCP confirmed that health benefits had not been deducted from
appellant’s compensation benefits since 2008 and that he would have an overpayment of
compensation.
In a notice of change in health benefits enrollment form dated March 30, 2011, OWCP
advised that appellant was transferred into OWCP effective August 2, 2008. In an OWCP
disability benefit payment worksheet dated April 4, 2011, it listed his optional life insurance
code as DO.
In disability benefit payment worksheets dated May 12, 2011, OWCP found an
overpayment of compensation for the period August 31, 2008 to April 9, 2011 because health
benefit premiums and optional life insurance premiums were not deducted from appellant’s
benefits. In supplemental roll payment worksheets dated May 12, 2011, it calculated that the
health benefit premium for the period August 31, 2008 to April 9, 2011 was $5,089.82 and that
optional insurance premiums for this period were $61.26.

2

In a preliminary overpayment determination dated January 26, 2012, OWCP advised
appellant that he received a $5,151.08 overpayment as premiums for his health benefits and
optional life insurance were not deducted from August 31, 2008 to April 9, 2011. From
August 31, 2008 to April 9, 2011, health insurance premiums that should have been deducted
was $5,089.82 and the amount of optional life insurance premiums that should have been
deducted was $61.26. For the period August 31, 2008 to April 9, 2011, appellant was paid
compensation of $126,528.76; however, he was entitled to $121,377.68 after health benefit and
optional life insurance premiums were deducted which resulted in an overpayment of
compensation of $5,151.08. OWCP made a preliminary finding that he was without fault in
creating the overpayment. It informed appellant that, if he believed the overpayment should be
waived, he should complete a financial recovery questionnaire form and submit documents such
as income tax returns, bank statements, bills, canceled checks, pay slips and other records to
support his claimed income and expenses.
On February 22 and 23, 2012 appellant requested waiver and a prerecoupment hearing.
He noted that the overpayment occurred through no fault of his own. Appellant through counsel
asserted that recovery of the overpayment would be against equity and good conscience.
Counsel advised OWCP that appellant’s only source of income was his FECA benefits of
$3,600.00 a month and that his monthly expenses included support of his sisters. This reduced
his net income from $800.00 to $900.00 a month. Requiring appellant to repay the overpayment
would cause severe financial hardship. He submitted a February 23, 2012 overpayment
questionnaire. Appellant listed his income as $3,600.00 and his expenses as $2,720.00. The
overpayment questionnaire noted a monthly payment of rent or mortgage of $1,020.00, food of
$250.00, clothing of $50.00, utilities of $750.00 and other expenses of $650.00. Appellant listed
cash on hand of zero, a checking account balance of $3,000.00 and a savings account balance of
$1,000.00 for a total of $4,000.00.
A prerecoupment hearing was held on June 26, 2012 and appellant appeared with counsel
and Narcisa Taguinod, his nursing assistant. Appellant testified that his income was $3,640.00 a
month. He provided support to each of his three sisters, noting that he gave them “between
$100.00 and $200.00 a month. I have direct deposit going to their accounts of $100.00 a
month….” Appellant also paid a nursing assistant for services provided to him during his
dialysis treatments three times a week of “around $200.00 a week sometimes; between $100.00
and $200.00 a week.” The hearing representative advised that appellant could submit additional
financial documentation within 30 days.
Appellant submitted a Suntrust bank statement dated June 1 to July 16, 2012, bills from
Dominion electric, water bills, a Wells Fargo mortgage statement indicating a payment of
$1,020.55 a month and checks to Ms. Taguinod dated June 8, 2012 in the amount of $60.00,
June 13, 2012 in the amount of $200.00 and June 26, 2012 in the amount of $800.00. The
June 26, 2012 check noted in the memo section that it was for nurse assistance.
In a September 11, 2012 decision, OWCP’s hearing representative found that appellant
received a $5,151.08 overpayment of compensation from August 31, 2008 to April 9, 2011
because health benefit and optional life insurance premiums were not deducted. She found that
he was without fault in creating the overpayment, but that waiver of recovery was not warranted.
The hearing representative noted that appellant testified that his income was $3,640.00 a month

3

and that, in addition to the expenses listed on the overpayment questionnaire, he provided each
of his three sisters $100.00 a month and paid a nursing assistant about “$100.00 to $200.00 a
week” for assistance with his dialysis treatments. She noted that, subsequent to the hearing, he
submitted bank statements, utility bills and copies of three checks to the nursing assistant totaling
$1,060.00. The hearing representative determined that appellant’s income was $3,640.00 and his
expenses were $2,720.00 or a balance of $920.00. She found that the expense of providing each
of his three sisters $100.00 a month and the nursing assistant $100.00 a week totaled $700.00,
which left a surplus income of $220.00 a month. The hearing representative noted that appellant
listed $3,000.00 in his checking account and $1,000.00 in his savings account. She found that it
was not against equity and good conscience nor would it defeat the purpose of FECA to recover
the overpayment. The hearing representative directed that $200.00 be withheld from his
continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.3 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.
An employee entitled to disability compensation may continue his or her health benefits
under FEHB program. The regulations of OPM, which administers FEHB program, provides
guidelines for registration, enrollment and continuation of enrollment for federal employees. In
this connection, 5 C.F.R. § 890.502(a)(1) provides that an employee or annuitant is responsible
for payment of the employee or annuitant share of the cost of enrollment for every pay period
during which the enrollment continues. An employee or annuitant incurs indebtedness due the
United States in the amount of the proper employee or annuitant withholding required for each
pay period that health benefit withholdings or direct premium payments are not made but during
which the enrollment continues.4
In addition, 5 C.F.R. § 890.502(c) provides that an agency that withholds less than or
none of the proper health benefits contributions from an individual’s pay, annuity or
compensation must submit an amount equal to the sum of the uncollected deductions and any
applicable agency contributions required under section 8906 of Title 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.5
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.6 An employing establishment that withholds
less than the proper health benefits contribution must submit an amount equal to the sum of the
3

5 C.F.R. § 8102(a).

4

Id. at § 890.502(a)(1).

5

Id. at § 890.502(c).

6

Id. at § 890.502(a)(1).

4

uncollected deductions.7 The Board has recognized that, when an underwithholding of health
insurance premiums is discovered, the entire amount is deemed an overpayment of compensation
because OWCP must pay the full premium to OPM when the error is discovered.8
Under FEGLI most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.9 The coverage for basic life
insurance is effective unless waived10 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.11 While the employee is receiving compensation under
FECA, deductions for insurance are withheld from the employee’s compensation.12 At
separation from the employing establishment, FEGLI insurance will either terminate or be
continued under compensationer status. If the compensationer chooses to continue basic and
optional life insurance coverage, the schedule of deductions made will be used to withhold
premiums from his or her compensation payments.13 When an underwithholding of life
insurance premiums occurs, the entire amount is deemed an overpayment of compensation
because OWCP must pay the full premium to OPM upon discovery of the error.14
ANALYSIS -- ISSUE 1
The record reflects that OWCP failed to deduct premiums for appellant’s health insurance
and optional life insurance from compensation payments for the period August 31, 2008 to
April 9, 2011. OWCP found that, from August 31, 2008 to April 9, 2011, the amount of health
insurance premiums that should have been deducted was $5,089.82 and the amount of optional
life insurance premiums that should have been deducted was $61.26. It noted that appellant was
paid compensation of $126,528.76 but was entitled to only $121,377.68 after health benefit and
optional life insurance premiums were deducted. This resulted in an overpayment of
compensation of $5,151.08. No health benefit or optional life insurance deductions were made
from appellant’s compensation during that time period and there is no evidence that he cancelled
his health benefits enrollment or optional life insurance. The Board finds that an overpayment
was created in the amount of $5,151.08 due to the underwithholding of health insurance and
optional life insurance premiums. OWCP explained how the overpayment occurred and
provided this to appellant and counsel with the preliminary notice of overpayment.15 Appellant
7

Id.

8

See James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39
ECAB 1377 (1988); 5 C.F.R. § 890.502.
9

Id. at § 8702(a).

10

Id. at § 8702(b).

11

Id. at § 8707.

12

Id. at § 8707(b)(1).

13

Id. at § 8706(b).

14

Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

15

See Sandra K. Neil, 40 ECAB 924 (1989).

5

does not dispute that he received the overpayment in question or the amount of the overpayment.
Thus, the failure to deduct health and optional life insurance premiums caused an overpayment
in compensation in the amount of $5,151.08.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.16 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”17 When a claimant is found to
be without fault in the matter of the overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.436 of the implementing regulations18 provide that recovery of an
overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined [by OWCP] from data furnished by the Bureau of
Labor Statistics.19 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.20
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.21
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery on an
16

See Robert Atchison, 41 ECAB 83, 87 (1989).

17

5 U.S.C. § 8129(b).

18

20 C.F.R. § 10.436.

19

An individual’s assets must exceed a resource base of $3,000.00 for an individual or $5,000.00 for an
individual with a spouse or one dependent plus $600.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Robert F. Kenney, 42 ECAB 297 (1991).
20

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

21

20 C.F.R. § 10.437.

6

overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.22
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in creating the overpayment.
Because he is without fault in the matter of the overpayment, it may adjust later payments only if
adjustment would not defeat the purpose of FECA or be against equity and good conscience.
The Board finds that the case is not in posture as to waiver of overpayment. With its
preliminary overpayment finding, OWCP sought financial information to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience. Appellant provided an overpayment recovery questionnaire and updated
financial information at the prerecoupment hearing. OWCP revealed that he had monthly
income of $3,640.00 and monthly expenses which included $1,020.00 for rent or mortgage,
$250.00 for food, $50.00 for clothing, $750.00 for utilities and $650.00 for other expenses.
Appellant testified that he provided each of his three sisters $100.00 a month and paid a nursing
assistant for services related to his dialysis treatments three times a week of “around $200.00 a
week sometimes; between $100.00 and $200.00 a week.” After the hearing, he submitted
financial information which OWCP found to be reliable and reasonable, specifically, three
checks to Ms. Taguinod, appellant’s nursing assistant, dated June 8, 2012 in the amount of
$60.00, June 13, 2012 in the amount of $200.00 and June 26, 2012 in the amount of $800.00, for
a total of $1,060.00. Appellant’s reported expenses exceeded income by over $400.00 and he
submitted supporting documents including copies of bank statements, checks to the nursing
assistant, mortgage statement and utility bills to support income and expenses as requested by
OWCP. The hearing representative calculated his expenses and allocated $100.00 a week for his
nursing assistant for a total of $400.00 a month. However, she failed to adequately address the
financial information submitted in support of the nursing expenses which included three checks
to Ms. Taguinod totaling $1,060.00 for June 2012. The hearing representative further did not
address appellant’s allegations that his nursing expenses are “around $200.00 a week sometimes;
between $100.00 and $200.00 a week.” The record contains financial records to support the
nursing assistant payments of $1,060.00 in June 2012. The Board finds the hearing
representative failed to adequately address the financial evidence submitted as to appellant’s
nursing assistant expense of $100.00 a week in light of the supporting evidence showing a
nursing expense of $1,060.00 in June 2012.
The case will be remanded to OWCP to consider relevant financial evidence and further
develop such evidence as it deems necessary, to be followed by a proper determination as to
waiver of the overpayment. In view of the Board’s disposition of the waiver issue, it is
premature to address repayment of the overpayment.

22

Id. at § 10.438.

7

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation during the period August 31, 2008 to April 9, 2011 in the amount of $5,151.08
for underwithholding of health insurance and optional life insurance premiums. The case is not
in posture for a decision regarding whether waiver of the overpayment is appropriate and
recovery of the overpayment from continuing compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part with regards to fact of overpayment and
remanded in part with regards to waiver of overpayment and recovery of overpayment.
Issued: December 11, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8