United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 19-1782
Issued: April 2, 2020

Case Submitted on the Record

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

JURISDICTION
On August 22, 2019 appellant filed a timely appeal from a March 27, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 27, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $13,688.05 for the period September 15, 2006 through January 5, 2019, for which he
was without fault; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On July 13, 2004 appellant, then a 46-year-old marine machinery mechanic, filed a
traumatic injury claim (Form CA-1) alleging that he tore his left knee quadratic tendon when he
fell when climbing off a boat while in the performance of duty. OWCP accepted the claim for left
quadriceps tendon rupture and repair. It paid appellant wage-loss compensation on the
supplemental rolls as of August 17, 2004 and on the periodic rolls as of October 1, 2006.
In a January 3, 2019 letter, the Office of Personnel Management (OPM) notified OWCP
that as a compensationer appellant was eligible to continue Federal Employee Life Insurance
(FEGLI) coverage. It requested that OWCP deduct for code E4 basic Option C times 4 no
reduction, and indicated that appellant’s postretirement election was “no reduction.” OPM related
that the commencing date for the postretirement deduction was September 15, 2006. It forwarded
a September 2, 2008 retirement operations center form which related that appellant’s annuity
commencing date was September 15, 2006 and that he carried basic life insurance, optional family
life insurance (option Cat no reduction with 4 multiples), and postretirement basic life at no
reduction.
In a letter addressed to appellant dated January 3, 2019, OPM related that, as long as
OWCP found that he was unable to return to work and he continued to receive compensation
benefits, his life insurance coverage would continue as follows: based on the base salary of
$40,633.89; deductions for basic life insurance and Option C (4 times, no reduction). It noted that
his postretirement election was no reduction and the commencing date for postretirement
deductions was September 15, 2006.
OWCP also received a FEGLI form entitled Continuation of Life Insurance Coverage as
an annuitant or compensationer, which was signed by appellant on May 14, 2007. This form
indicated that he selected basic life insurance, Option A standard optional life insurance, additional
Option B with 50 multiples ($50,000.00 maximum) with no reduction, and Option C family
optional insurance with times 4 times, no reduction.
In a letter dated January 29, 2019, OWCP notified appellant that his compensation was
being adjusted to reflect the correct life insurance deduction amounts reported by OPM, beginning
February 2, 2019. Appellant was advised that he would receive a letter addressing the
overpayment as the deductions were being made retroactively.
By letter dated February 13, 2019, OWCP notified appellant of his entitlement to
compensation benefits effective January 6, 2019. The letter indicated that deductions were being
made for basic life insurance in the amount of $12.90, postretirement basic life insurance in the
amount of $84.54, and optional life insurance, in the amount of $21.60.

2

By notice dated February 22, 2019, OWCP advised appellant of its preliminary
determination that an overpayment of compensation occurred in the amount of $13,688.05, for the
period September 15, 2006 through January 5, 2019, because no deductions were made for
postretirement basic life insurance. It found that he was without fault in the creation of the
overpayment because OWCP erred in calculating the benefits, and that it was not shown that he
had actual knowledge of the calculation error. OWCP advised appellant of his right to request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing,
if he objected to the decision or requested waiver of the recovery of the overpayment. It further
advised him to complete an overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. OWCP mailed the preliminary determination to appellant’s
address of record and afforded him 30 days to provide the requested information.
On March 19, 2019 OWCP received the first page of the overpayment action request form.
Appellant requested a waiver of recovery of the overpayment, noted that he “did not know” that
there was an overpayment, and indicated that he would suffer a financial hardship. No financial
information or documentation accompanied his waiver request.
By decision dated March 27, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $13,688.05, for the
period September 15, 2006 through January 5, 2019, because postretirement life insurance
premiums were not properly deducted from his compensation payments for that period. It found
that he was without fault in the creation of the overpayment; however, OWCP denied waiver of
recovery because he did not respond to the overpayment recovery questionnaire and provide
supporting financial documentation.
OWCP directed appellant to repay the $13,688.05
overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty. 3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.4
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the optional life insurance options.5 The

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8702(a).

3

coverage for basic life insurance is effective unless waived6 and the premiums for basic life
insurance and optional life insurance coverage are withheld from the employee’s pay.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provides that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. Regulations at 5
C.F.R. § 870.701 (December 5, 1980) provides that an eligible employee had the option of
choosing no life insurance; Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by two percent a month after
age 65 with a maximum reduction of 75 percent; Option B -- basic coverage (at an additional
premium) subject to continuous withholdings from compensation payments that would be reduced
by one percent a month after age 65 with a maximum reduction of 50 percent; or Option C -- basic
coverage subject to continuous withholdings from compensation payments with no reductions after
age 65 (at a greater premium). 8
When an underwithholding of life insurance premiums occurs, the entire amount is deemed
an overpayment because OWCP must pay the full premium to OPM upon discovery of the error. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not established that appellant received an overpayment of
compensation in the amount of $13,688.05 during the period September 15, 2006 through
January 5, 2019.
The record reflects that OPM notified OWCP on January 3, 2019 that, as a compensationer
appellant was eligible to continue FEGLI coverage, it requested that OWCP deduct under code E4
basic Option C times 4 no reduction and postretirement election no reduction commencing
September 15, 2006. OWCP calculated the amount of the underwithholding and resulting
overpayment to be $13,688.05, as it had not commenced deduction of premiums as of
September 15, 2006. However, the record does not reflect appellant’s life insurance election as of
September 15, 2006. A FEGLI form he signed on May 14, 2007 selected basic life insurance,
Option A standard life insurance, Option B additional life insurance x 50 ($50,000.00 maximum)
with no reduction, and Option C family optional life insurance times 4, with no reduction. This
form is the only document of record bearing appellant’s signature and it does not document his life
insurance elections as of September 15, 2006. Furthermore, the elections appellant made on
May 14, 2007 are not subsequently addressed on any OPM form or OWCP decision and differ
from the elections shown on OPM letters and forms dated September 2, 2008 and January 3, 2019.
OPM acknowledged in its letter to appellant dated January 3, 2019 that conflicting
information had been provided to OWCP regarding his life insurance elections. However, neither
6

Id. at § 8702(b).

7

Id. at § 8707.

8

See V.H., Docket No. 18-1124 (issued January 16, 2019).

9

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

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it nor OWCP clarified the evidence of record prior to finalizing the overpayment determination.
Appellant’s life insurance election choice was therefore not established. 10
Based upon the current record, the Board is therefore unable to verify fact and amount of
the overpayment due to under deduction of FEGLI premiums during the period September 15,
2006 through January 5, 2019. The Board thus finds that OWCP improperly determined that
appellant received an overpayment of compensation in the amount of $13,688.05. 11
CONCLUSION
The Board finds that OWCP has not established that appellant received an overpayment of
compensation in the amount of $13,688.05 for the period September 15, 2006 through
January 5, 2019.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 2, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

10

Supra note 8.

11
In light of the Board’s disposition of issue 1, the second issue regarding waiver of recovery of the overpayment
is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Pleasant, SC, Employer
__________________________________________

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Appearances:
Joanne M. Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1074
Issued: December 31, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 24, 2020 appellant, through her representative, filed a timely appeal from an
April 6, 2020 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 an expansion of the
acceptance of the claim to include additional conditions as causally related to the accepted
April 21, 2016 employment incident.
FACTUAL HISTORY
On April 25, 2016 appellant, then a 52-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 21, 2016 she stepped off a platform and her right leg gave out
causing her to fall and sustain injuries to her back, shoulder, neck, knee, hip, and right knee while
in the performance of duty. She did not immediately stop work.
In a separate statement, appellant indicated that on April 21, 2016 she began her day casing
flats and letters while standing on a platform that was five inches high and four feet long. As she
proceeded to prepare her route for delivery, she took a step and her right leg gave out, causing her
to fall face first on the concrete floor. Appellant noted that she did not have a history of upper
back sprain.
On May 4, 2016 appellant was treated by Dr. Howard L. Brilliant, a Board-certified
orthopedist, for thoracic pain. She reported an injury at work on April 21, 2016, when her leg gave
out and she fell face down on the floor. Dr. Brilliant noted findings on examination of pain and
tenderness in the upper and mid thoracic spine and paraspinal muscle. X-rays of the thoracic spine
revealed no acute fractures, dislocation, or other obvious abnormalities. Dr. Brilliant diagnosed
contusion, sprain of the paraspinal muscles of the thoracic spine. In a duty status report (Form
CA-17) dated May 4, 2016, he diagnosed sprain of the paraspinal muscles and noted that appellant
could work with restrictions.
By decision dated June 8, 2016, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence submitted was insufficient to establish causal relationship between her
diagnosed condition and the accepted April 21, 2016 employment incident.
OWCP subsequently received additional evidence. On June 21, 2016 Dr. Brilliant
indicated that appellant was injured at work when her right leg gave way causing her to fall. He
diagnosed a sprain and continued work restrictions. On July 25, 2016 Dr. Brilliant treated
appellant in follow up for upper arm and upper back pain, which flared up when she tried to lift
heavy objects. He instructed appellant to avoid strenuous activities. On August 10, 2016
Dr. Brilliant reevaluated appellant who reported that her shoulder was quite sore and
uncomfortable. Examination revealed tenderness in the upper spine paraspinal muscles and he
recommended limited activity and physical therapy.
On October 20, 2016 Dr. John W. Ellis, a Board-certified family practitioner, treated
appellant for injuries sustained to her shoulders and cervical and thoracic spine during a fall at
work on April 21, 2016. He diagnosed sprain of the right and left shoulder, sprain of the thoracic
and cervical spine, and contusion of the right wrist and left wrist, resolved. Dr. Ellis opined that,
based on his examination and review of the medical records, with reasonable medical certainty, it
is more probable than not, that the injuries, impairments, and disabilities set forth in his diagnoses

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arose out of and in the course of the employees employment and that employment factors and work
duties contributed to, aggravated, or caused said injuries, disabilities, and impairment. He noted
that appellant’s right leg gave way, causing her to fall forward. Appellant was very tight and
bracing herself when she landed, straining the muscles at the base of her neck, thoracic spine, and
shoulder girdle areas. Dr. Ellis further noted that appellant had asymmetrical tightness in the right
levator scapulae, rhomboid, and shoulder girdle area, which was consistent with an acute strain on
April 21, 2016.
On November 23, 2016 appellant requested reconsideration.
By decision dated December 5, 2016, OWCP vacated its June 8, 2016 decision, finding
that the medical evidence of record was sufficiently rationalized to establish causal relationship
between a diagnosed thoracic back sprain and the accepted April 21, 2016 employment incident.
However, it denied the acceptance of the additional conditions diagnosed by Dr. Ellis including
sprain of right and left shoulder, sprain of the cervical spine, and contusion of the right and left
wrist, resolved.3
OWCP subsequently received duty status reports (Form CA-17) from Dr. Brilliant dated
January 23 through June 12, 2017, diagnosing thoracic and cervical spine sprain, right and left
shoulder sprain, and contusion of the bilateral wrists. Dr. Brilliant noted that appellant could work
with restrictions. In other reports from Dr. Brilliant dated March 20 through April 17, 2017,
appellant reported improvement in the upper back and shoulder muscles. Dr. Brilliant continued
limited duty, no heavy lifting or bending. On May 25, 2017 he saw appellant in follow up after an
electromyogram and nerve conduction studies (EMG/NCV), which confirmed that there was no
nerve root involvement. Dr. Brilliant continued the current restrictions. On June 12, 2017
appellant reported continued tenderness to the right upper shoulder blade. On August 10, 2017
Dr. Brilliant noted that appellant appeared to be stable and released her from treatment. On
October 16, 2017 he treated appellant for disc and lower back injuries resulting from a separate
work injury dated June 4, 2015.
On November 21, 2017 appellant requested reconsideration of the denial of expansion of
the claim to include the additional conditions diagnosed by Dr. Ellis.
By decision dated February 12, 2018, OWCP denied modification of the December 5, 2016
decision.
On December 15, 2018 appellant requested reconsideration. In support of her request, she
submitted an undated note from Dr. Brilliant who described her April 21, 2016 injury, noting that
she was stepping down from a platform at work when her right leg gave out resulting in her falling
down on the hard concrete floor. Dr. Brilliant explained that the force of her body striking the
concrete flooring caused the injury to the musculature tissue of her upper back and shoulder region.
He diagnosed sprain of the ligaments of her thoracic spine and chronic sprain and strain to the right
shoulder girdle muscles. Dr. Brilliant opined “within a degree of medical certainty that the injury
to her thoracic spine and right shoulder were caused when she fell while stepping down from a
3
By separate decision dated December 5, 2016, OWCP formally accepted sprain of the ligaments of the thoracic
spine.

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platform at work on April 21, 2016.” On April 19, 2018 he treated appellant for right shoulder
pain and thoracic pain secondary to injuries at work. Dr. Brilliant diagnosed subacromial bursitis,
tendinitis, and old sprain of spine muscles and continued work with restrictions.
By decision dated February 28, 2019, OWCP denied modification of the February 12, 2018
decision.
On February 12, 2020 appellant requested reconsideration. In support thereof, she
submitted a January 30, 2020 report wherein Dr. Brilliant noted treating her in follow up for a
three-year-old injury to her back and hips. Dr. Brilliant diagnosed lumbosacral disc disease,
sprain, contusion, and arthritis. He continued with work restrictions.
By decision dated April 6, 2020, OWCP denied modification of the February 28, 2019
decision.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4
To establish causal relationship between the condition as well as any additional conditions
claimed and the employment injury, an employee must submit rationalized medical evidence.5
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 claimant.6
ANALYSIS
The Board finds that this case is not in posture for decision.
In an October 20, 2016 report, Dr. Ellis noted the history of injury and diagnosed sprain of
the right and left shoulder, sprain of the thoracic and cervical spine, and contusion of the right
wrist and left wrist, resolved. He explained that when the fall occurred she was very tight and
bracing herself when she landed, straining the muscles at the base of her neck, thoracic spine, and
shoulder girdle areas. Dr. Ellis further noted that appellant had asymmetrical tightness in the right
levator scapulae, rhomboid, and shoulder girdle area, which was consistent with an acute strain on
April 21, 2016.

4

M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
6

T.K., id.; I.J., 59 ECAB 408 (2008).

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Dr. Brilliant, in undated report received on December 15, 2018, described appellant’s
April 21, 2016 injury, noting that she was stepping down from a platform at work when her right
leg gave out resulting in her falling down on the hard concrete floor. He explained that the force
of her body striking the concrete flooring caused the injury to the musculature tissue of her upper
back and shoulder region. Dr. Brilliant diagnosed sprain of the ligaments of her thoracic spine,
and chronic sprain and strain to the right shoulder girdle muscles. In conclusion, he opined that,
within a degree of medical certainty, the injury to her thoracic spine and right shoulder were caused
when she fell while stepping down from a platform at work on April 21, 2016.
The Board finds that these reports taken together are sufficient to require further
development of the medical evidence. Drs. Ellis and Brilliant rendered rationalized opinions on
the issue of causal relationship and provided a comprehensive understanding of the medical record
and case history. Their reports provide a pathophysiological explanation as to how appellant’s fall
from a platform at work resulted in her diagnosed right shoulder conditions. The Board has long
held that it is unnecessary that the evidence of record in a case be so conclusive as to suggest causal
connection beyond all possible doubt. Rather, the evidence required is only that necessary to
convince the adjudicator that the conclusion drawn is rational, sound, and logical.7 Accordingly,
Drs. Ellis and Brilliant’s medical opinions are rationalized and logical, and is therefore are
sufficient to require further development of appellant’s claim.8
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.9 OWCP has an obligation to see that justice is
done.10
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to an appropriate specialist. The chosen physician shall provide a rationalized opinion as
to whether the diagnosed conditions are causally related to the accepted factors of appellant’s
federal employment. If the physician opines that the additional diagnosed conditions are not
causally related, he or she must explain, with rationale, how or why the opinion differs from that
of Drs. Ellis and Brilliant. Following this and such other further development as deemed
necessary, OWCP shall issue a de novo decision regarding the expansion of appellant’s claim.

7

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
8

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
9

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
10
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charleston, SC, Employer
__________________________________________

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

Docket No. 15-0459
Issued: June 23, 2016

Case Submitted on the Record

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

JURISDICTION
On December 22, 2014 appellant filed a timely appeal from two December 4, 2014 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 6, 2014; (2) whether appellant has
met her burden of proof to establish continuing residuals or disability after the April 6, 2014
termination of her compensation benefits; (3) whether appellant forfeited her compensation for
the period June 16, 2012 through September 16, 2013 on the grounds that she knowingly failed
to report her income pursuant to 5 U.S.C. § 8106(b); (4) whether OWCP properly found that
appellant received an overpayment of compensation in the amount of $26,738.64 from June 16,
2012 through September 16, 2013; and (5) whether OWCP properly found that appellant was at
fault in the creation of such an overpayment, thereby precluding waiver of recovery.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a June 21, 2010 decision, the Board
determined that OWCP did not meet its burden of proof in reducing appellant’s compensation
effective February 15, 2009 and reversed the January 28, 2009 decision. OWCP did not
establish that the selected sales clerk position represented her wage-earning capacity due to
insufficient medical evidence. The facts and circumstances set forth in the prior appeal are
incorporated herein by reference. The facts relevant to the present appeal are set forth below.
Appellant, a 28-year-old transportation security screener, filed a claim for a traumatic
injury (Form CA-1) alleging that she suffered back pain on April 11, 2006 while pulling a cart of
boxes. On September 29, 2006 OWCP accepted the claim for subluxation of the lumbar spine.
On November 30, 2006 it added lumbar dislocation as an accepted condition. Appellant stopped
work on the date of injury and received wage-loss compensation.
Facts regarding the issues of whether OWCP met its burden of proof to terminate appellant’s
wage-loss and medical benefits effective April 6, 2014 and whether appellant has met her
burden of proof to establish continuing residuals or disability after the April 6, 2014
termination of her compensation:
An October 8, 2010 report from, Dr. Timothy M. Zgleszewski, a Board-certified internist,
noted appellant’s history. His findings included that appellant was in minimal amount of pain;
body habitus was normal for her age; she did not appear to be in acute distress; gait and station
were nonantalgic; and she was able to raise up on her heels and toes. Inspection of the upper and
lower extremities demonstrated intact radial and pedal pulses and no edema. The low back had
normal lumbar lordosis. Pain was increased with palpation and he found tenderness in lumbar
paraspinals. There was no generalized tenderness over the greater trochanters and no trigger
points in the lumbosacral spine. Appellant had negative neural tension signs in both legs in the
seated slumped position and a negative straight leg test bilaterally. Dr. Zgleszewski advised that
her bilateral leg examination was stable and unchanged from his previous examination. He
diagnosed lumbar facet syndrome, low back pain, and lumbago.
In a letter dated July 1, 2013, OWCP requested that appellant provide an update from her
physician regarding her accepted work conditions. Appellant was advised that, if her physician
did not provide an update, OWCP would refer her for a second opinion examination.
On November 14, 2013 OWCP referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Raju Vanapalli a
Board-certified orthopedic surgeon to assess residuals of the work injury and her capacity to
work.
In a December 4, 2013 report, Dr. Vanapalli described appellant’s history of injury and
treatment and noted that he had reviewed the statement of accepted facts. He reported that she
stopped work on October 31, 2009 and had not returned to her duties. Appellant since relocated
to Atlanta, GA and pursued a different career. Dr. Vanapalli examined appellant and provided
findings. For the lumbosacral spine, he found no deformity, no tenderness, no spasm, no trigger
2

Docket No. 09-1800 (issued June 21, 2010).

2

points, range of movement forward flexion to 90 degrees, side to side tilt of 20 degrees, rotation
of 30 degrees, and extension to 20 degrees with no pain. Dr. Vanapalli advised that in the supine
position, straight leg raising was to 70 degrees on both sides. Lasegue’s and Patrick’s tests were
negative. Neurological examination was normal with intact sensation normal motor power.
Dr. Vanapalli diagnosed status post lumbosacral strain, radiculitis L5-S1, bilateral, and facet
joint degenerative arthropathy based on her records. He indicated that there were no objective
findings related to work-related lumbosacral disc displacements. Dr. Vanapalli opined that the
work-related lumbar strain had resolved. He further explained that the accepted lumbar
subluxations had resolved. Dr. Vanapalli opined that appellant’s current complaint of
lumbosacral pain was secondary to degenerative facet arthropathy, which was documented on
July 24, 2006 shortly after the reported injury. His examination revealed normal range of motion
and no neurological deficits. Dr. Vanapalli found that appellant was not disabled from work due
to the April 11, 2006 work injury, as his examination did not reveal any objective findings of
neuromuscular deficit and no objective musculoskeletal residuals. He advised that she could
return to her date-of-injury position as a transportation security screener. Dr. Vanapalli noted
that, “she does not wish to go back to date-of-injury job and that she is pursuing alternative
career.” He indicated that no further treatment was necessary. In an accompanying December 4,
2013 work capacity evaluation, Dr. Vanapalli noted no restrictions.
Appellant, in a January 17, 2014 letter, disagreed with Dr. Vanapalli. She indicated that
he only spent three minutes with her and only asked her how she injured herself. Appellant
noted that Dr. Vanapalli did not want to know about her continued pain and did not want to
discuss anything other than how she was doing on that date. She asserted that she had
debilitating pain and her life changed due to her injury.
On January 28, 2014 OWCP proposed to terminate appellant’s medical benefits and
wage-loss compensation on the grounds that the medical evidence of file established that she no
longer had any residuals or continuing disability from work. It accorded the weight of the
evidence to Dr. Vanapalli, who found that she no longer had any residuals or continuing
disability from work stemming from her work-related injury of April 11, 2006.3
On February 3, 2014 OWCP received a January 28, 2014 letter from Maury T. Walker, a
special agent with the employing establishment’s Office of Inspection -- Investigations Division
General, advising that starting in September 2012, appellant posted comments on social media
about “working out, running and trying to get fit and losing weight.” Mr. Walker noted that
these comments indicated that appellant was conducting activities in excess of her physical
limitations. He indicated that she regularly exercised and ran to her gym. Mr. Walker noted
that, once she learned she was being investigated, she stopped posting her exercise activities on
social media.
In a February 5, 2014 letter, appellant responded to Mr. Walker’s allegations. She noted,
she was informed in October 2013 that she was being investigated. Appellant also indicated that
the investigator had followed her to her appointment with Dr. Vanapalli and videotaped her
without her permission. She indicated that she continued to have difficulty with her back and
disagreed with the proposed termination.
3

OWCP noted that the latest report from appellant’s treating physician, Dr. Zgleszewski, was dated
October 8, 2010.

3

In a February 28, 2014 memorandum, OWCP noted that a surveillance video provided by
the employing establishment’s Office of Inspector General revealed that appellant engaged in
activities to include exercising and moving freely at the gym without signs of pain.
On March 11, 2014 OWCP terminated appellant’s compensation, effective April 6, 2014
as she no longer had any employment-related residuals or disability. It found that the weight of
the medical evidence rested with Dr. Vanapalli, who determined that appellant could return to
her date-of-injury job and that the residuals of the accepted conditions had ceased.
On March 8 and 21, 2014 appellant requested a hearing before an OWCP hearing
representative, which was held on September 9, 2014.4
In a letter dated April 4, 2014, Mr. Walker provided further details of the investigation of
appellant. He noted that a review of her social media blog revealed that as far back as 2007, she
engaged in regular exercise, which included running a half marathon in 2011. Mr. Walker also
found that appellant stopped seeking alternative employment back in April 2011. He provided
excerpts from her blog posts and a detailed description of the dates and times of her runs which
were almost a daily occurrence. Appellant indicated that she ran two miles five days a week.
Mr. Walker also included surveillance video files to confirm the findings.
OWCP received an August 2, 2010 report from Dr. Zgleszeweski who diagnosed lumbar
facet syndrome and lumbago.
In a December 4, 2014 decision, OWCP’s hearing representative affirmed the March 11,
2014 decision terminating appellant’s wage-loss compensation and medical benefits as she no
longer had any employment-related disability.
The facts related to the issues of Forfeiture, Overpayment and Fault:
On July 11 and September 16, 2013 appellant completed CA-1032 forms. In response to
whether she worked for an employer for the past 15 months, she stated “No” on each form.
Appellant also responded “no” when asked if she was self-employed or involved in any business
enterprise in the past 15 months. The forms contained a notation that “SEVERE PENALITES
MAY BE APPLIED FOR FAILURE TO REPORT ALL WORK ACTIVITIES THOROUGHLY
AND COMPLETELY.” Additionally, the forms contained an advisement that appellant must
report “ALL employment for which she received as salary, wages, income, sales commissions,
piecework, or payment of any kind.…”
On December 1, 2013 OWCP received a letter from Mr. Walker advising that the
employing establishment’s Office of Inspector General was conducting an ongoing criminal
affairs investigation into alleged illegal and fraudulent activity by appellant. Mr. Walker noted

4

At the hearing, appellant testified that her work injury had not resolved and she was still disabled from work.
She described pain and stiffness in the back when she did things around the house, like vacuuming, washing dishes,
or anything that required prolonged standing. Appellant denied such problems before the injury. She confirmed that
she was not currently receiving active medical treatment and indicated that she last saw a physician for her injury in
2010 or 2011. Appellant indicated that she worked at home as a writer and used heating pads. She asserted that
Dr. Vanapalli formed his opinion before he examined her.

4

that his office had surveillance video recordings of appellant exercising at her health club and
social media postings concerning her fitness regime.
On February 3, 2014 OWCP received a January 28, 2014 letter from Mr. Walker advising
that, beginning in September 2012, appellant posted comments on social media which suggested
that she had pursued a career as an author under a pen name. Appellant posted comments that
she was blessed to pursue her “life’s work” as a successful author. Her first novel was published
in June 2013 although she indicated that she was unemployed for the past 15 months on her
CA-1032 Form. Mr. Walker noted that this was not accurate as she indicated that she “can now
pay her bills” because she has been receiving an undetermined amount of money from the
release of her first novel. Appellant was awaiting the release of her second novel in June 2014.
An interview with appellant about her book, from an online publication, accompanied
Mr. Walker’s report.5
By decision dated February 13, 2014, which was reissued on March 3, 2014, OWCP
found that appellant forfeited wage-loss compensation for the period June 16, 2012 through
September 16, 2013 for failure to report that she worked during this period and had earnings that
she failed to report.6 The forfeiture period was for the 15 months prior to the CA-1032 that she
signed on September 16, 2013. OWCP found that appellant knowingly provided false
information about earnings and self-employment on the CA-1032 form. It found that all
compensation paid during the period would be considered an overpayment.
Also on February 13, 2014, OWCP made a preliminary determination that appellant
received a $26,738.64 overpayment of compensation during the period June 16, 2012 through
September 16, 2013 as a result of the forfeiture. It found that she was at fault in creating in the
overpayment because she failed to report earnings for her book writing, publishing, and sales.
An overpayment worksheet was provided.
OWCP revealed that appellant received
compensation payments totaling $26,738.64 during the period June 16, 2012 through
September 16, 2013.
Worksheets for the period revealed that appellant received the
compensation. For the period: June 16 to 30, 2012 appellant received $869.46; for the period
July 1, 2012 to January 12, 2013, appellant received $10,482.78; for the period January 13 to
February 9, 2013, appellant received $1,491.90; for the period February 10 to March 9, 2013,
appellant received $1,500.90 for the period March 10 to August 24, 2013, appellant received
$9,119.40 for the period August 25 to September 16, 2016 appellant received $1,356.18. The
total compensation paid to appellant for this period was equal to $24,820.62.
On February 25, 2014 appellant requested a prerecoupment hearing before an OWCP
hearing representative. She completed the overpayment recovery questionnaire and argued that
in August 2012 she signed a two-book deal in the amount of $6,000.00, minus agency fees, to be
paid in five installments over a two-year period. Appellant explained that upon signing, she
5

In the interview, given under her pen name, appellant indicated that she was working on another novel. She
could write for five minutes or five hours and preferred to write at night. Appellant noted hobbies that included
running, working out in the gym, shopping; organizing her house, and interior decorating. She also indicated that
she had an exercise regimen she went through every morning. Furthermore, appellant related that she grew up
traveling and made a point of traveling somewhere different every month. She noted that she had just driven from
South Carolina to Texas and back to South Carolina.
6

The February 13, 2014 decision was reissued on March 3, 2014 as appellant had a new address.

5

notified her certified public accountant (CPA), who informed her that she did not have to report
income under $5,000.00 for the year. She explained that she did not earn enough income to file
taxes in 2012 and 2013. It was a misunderstanding on appellant’s part and not willful or
intentional. She advised that she did not receive any royalties for either book and no other
income. Appellant’s tax returns were provided, which indicated that in 2013 she received
miscellaneous income of $2,200.00, and $3,300.00 in 2012. She provided statements dated
January 12 and 15, 2014 from Sara Camilli, her agent, who explained that advance royalties must
be reported on the IRS Form 1099-MISC by her and the amount paid to include her commissions
and expenses for a net income of $2,483.06 for 2012 and $1,698.62 for 2013. Ms. Camilli
advised appellant to report gross royalties and advances and that she should deduct commissions
and expenses withheld. A copy of a September 14, 2012 check, payable to appellant in the
amount of $1,695.80 was included as a signing payment.
In an April 4, 2014 letter, Mr. Walker provided further details of the investigation. He
noted that a review of appellant’s social media blog revealed that, as far back as 2007, she
pursued a writing career and engaged in regular exercise that included running a half marathon in
2011.
In a letter dated September 26, 2014, appellant reiterated that she did not willingly
withhold information from OWCP. It was due to a misunderstanding on her part. Appellant
noted that she had since reported income from all sources for all periods.
In a separate September 26, 2014 letter, Peter A. Kent, appellant’s accountant, indicated
that appellant requested that he provide a letter regarding her income tax for the years 2012 to
2013. He indicated that her sole source of income during this period was the royalty payments.
Mr. Kent noted that appellant’s net income after commissions was $2,843.00 and $1,699.00.
However, because her income in these years did not exceed her standard deductions and
exemption that all taxpayers receive, he advised her that she did not have to file an income tax
return.
By decision dated December 4, 2014, an OWCP hearing representative affirmed the
forfeiture decision and finalized the preliminary overpayment finding.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.7 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.9

7

V.C., 59 ECAB 490 (2008); Charles E. Minniss, 40 ECAB 708, 716 (1989).

8

Id.

9

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

6

ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for subluxation of the lumbar spine and closed lumbar
dislocation.
In a December 4, 2013 report, Dr. Vanapalli, a second opinion physician, determined that
appellant was status post lumbosacral strain, radiculitis L5-S1, bilateral, facet joint degenerative
arthropathy. He indicated that there were no objective findings related to her work-related injury
of lumbosacral disc displacements. Dr. Vanapalli opined that the work-related lumbar strain had
resolved. He explained that her current complaint of lumbosacral pain was secondary to
degenerative facet arthropathy, which was documented on July 24, 2008 shortly after the injury.
Dr. Vanapalli indicated that his examination revealed normal range of motion and no
neurological objective findings or deficits and that appellant was not disabled from work due to
the work-related injury of April 11, 2006. He noted that his physical examination did not reveal
any objective findings of neuromuscular deficit and no objective residuals of musculoskeletal
system. Dr. Vanapalli reiterated that appellant could return to her date-of-injury position as a
transportation security screener and noted that appellant stated that “she does not wish to go back
to date-of-injury job and that she is pursuing alternative career.” He indicated that no further
treatment was necessary or recommended.
Although OWCP requested that appellant provide an update from her treating physician,
none was received. The Board further notes the treating physician’s most recent report was
dated October 2, 2010 and he did not offer any current opinion regarding her physical status.
Furthermore, he diagnosed lumbar facet syndrome and lumbago, which were not accepted
conditions. Additionally, appellant confirmed that she had not been actively treated since 2010
or 2011.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 6, 2014, as she was no longer disabled.
LEGAL PRECEDENT -- ISSUE 2
It is well established that after termination or modification of compensation benefits,
clearly warranted on the basis of the evidence, the burden for reinstating compensation shifts to
appellant. In order to prevail, appellant must establish by the weight of the reliable, probative
and substantial evidence that she had an employment-related disability, which continued after
termination of compensation benefits.10
ANALYSIS -- ISSUE 2
Subsequent to the March 11, 2014 decision, which terminated appellant’s compensation
benefits effective April 6, 2014, the burden shifted to appellant to demonstrate that she continued
to have disability for work on and after April 6, 2014 due to the accepted injury.11

10

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

11

See id.; Virginia Davis-Banks, 44 ECAB 389 (1993).

7

After the termination of appellant’s compensation benefits, OWCP received an August 2,
2010 report in which Dr. Zgleszeweski diagnosed lumbar facet and lumbago. The Board notes
that this report is irrelevant as it predates the termination and does not otherwise support
continuing injury-related residuals or disability after April 6, 2014. Appellant argued at the
hearing that she continued to have pain but conceded that she had not seen a physician since
2010. She therefore has not met her burden of proof to establish continuing employment-related
residuals or disability after April 6, 2014.
LEGAL PRECEDENT -- ISSUE 3
Section 8106(b) provides in pertinent part:
“The Secretary of Labor may require a disabled employee to report his earnings
from employment or self-employment, by affidavit or otherwise, in the manner
and at times the Secretary specifies. An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered under section 8129 of this title, unless recovery is
waived under that section.”12
The Board has held that it is not enough merely to establish that there were unreported
earnings or employment. Appellant can be subjected to the forfeiture provision of section
8106(b) only if she “knowingly” failed to report earnings from employment. 13 The term
“knowingly” as defined in OWCP’s implementing regulations, means “with knowledge,
consciously, willfully, or intentionally.”14 The Board has held that forfeiture, being a penalty
provision, must be narrowly construed.15
Section 10.5(g) of OWCP’s regulations define earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses, and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else performs the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
12

5 U.S.C. § 8106(b).

13

Barbara L. Kanter, 46 ECAB 165 (1994).

14

20 C.F.R. § 10.5(n).

15

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

8

characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”16
ANALYSIS -- ISSUE 3
The Board finds that appellant forfeited her right to compensation for the period June 16,
2012 to September 16, 2013 pursuant to section 8106(b)(2)17 on the basis that she knowingly
failed to report her income related to her book on her CA-1032 forms.
The record reflects that appellant completed the Form CA-1032 on July 11 and
September 16, 2013. In response to whether she worked for an employer for the past 15 months,
appellant filled in “No.” Appellant also responded “no” when asked if she was self-employed or
involved in any business enterprise in the past 15 months. The form contains a notation that
“SEVERE PENALITES MAY BE APPLIED FOR FAILURE TO REPORT ALL WORK
ACTIVITIES THOROUGHLY AND COMPLETELY.” Additionally, the form advises that
claimants must report “ALL employment for which she received as salary, wages, income, sales
commissions, piecework, or payment of any kind…”
Appellant argued that she believed she did not have to report her income, as her
accountant indicated that she did not have to report book earnings that were under $5,000.00.
The Board finds that this argument is unavailing. The language on the Form CA-1032 clearly
directs appellant to report all employment or self-employment including “income, sales
commissions, piecework, or payment of any kind.” The Board also notes that the statement from
appellant’s accountant advised appellant regarding reporting for tax purposes. The Board finds
that professional advice regarding the payment of taxes is separate from the reporting
requirements of the Form CA-1032. Appellant’s failure to report earnings from her book
constituted false information regarding her earnings during the subject period, and that she
provided false information regarding her earnings and self-employment. Although she argued
that she misunderstood the reporting requirement, her argument is not supported by the evidence.
The Form CA-1032 instructions clearly indicate all income and earnings must be reported.
Appellant’s signing of strongly-worded certification clauses on the CA-1032 forms show that she
was aware of materiality of her failure to report her employment. The Board finds that the
evidence establishes that appellant knowingly omitted her earnings from the reports that she
provided to OWCP. Thus, appellant forfeited her right to all compensation she received for the
period June 16, 2012 to September 16, 2013.
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.

16

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

17

5. U.S.C. § 8106(b)(2).

9

LEGAL PRECEDENT -- ISSUE 4
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty. 18 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”19
ANALYSIS -- ISSUE 4
As noted, appellant forfeited her compensation for the period June 16, 2012 through
September 16, 2013 on the grounds that she knowingly failed to report her earnings. The Board
finds that this forfeiture resulted in an overpayment of compensation. While OWCP calculated
an overpayment in the amount of $26,738.64 for the period June 16, 2012 through
September 16, 2013, the Board notes that the overpayment worksheets show that she only
received a total amount of $24,820.62 for this period. As she failed to report her income, she
forfeited her right to compensation with respect to any period for which the affidavit or report
was required. The Board will modify the overpayment amount to $24,820.62. As appellant
received this amount during the forfeiture period, it is properly an overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 5
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled.20 The only exception to this requirement is a situation which
meets the tests set forth as follows in section 8129(b): Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.21 No waiver of payment is possible if the claimant is not
without fault in helping to create the overpayment.22
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of Title 20 of the Code of Federal Regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
18

5 U.S.C. § 8102(a).

19

Id. at § 8129(a).

20

Id.

21

Id. at § 8129(b).

22

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

10

(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.”23
Section 10.433(c) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”24
ANALYSIS -- ISSUE 5
The Board finds that appellant was at fault in the creation of the overpayment of
compensation because she failed to provide information which she knew or should have known
to be material on CA-1032 forms covering period June 16, 2012 to September 16, 2013. As
discussed above, appellant received income during the periods covered by the relevant CA-1032
forms from royalties for a book that she had authorized. However she did not report such selfemployment activities on the CA-1032 forms she submitted to OWCP. The explicit language of
the CA-1032 forms clearly shows that appellant knew or should have known that her earnings
from her book deal would require her to report such employment activities on the forms.
Appellant’s signing of strongly-worded certification clauses on the CA-1032 forms, which
indicate that she must report “ALL INCOME” and would face severe penalties for failure to do
so further shows that she was aware of the materiality of her failure to report this income.
Because appellant was at fault in the creation of the overpayment, OWCP properly determined
that she was not entitled to waiver of recovery of the overpayment.25
On appeal, appellant argues that she was being held responsible for $26,738.64 for the
period June 16, 2012 through September 16, 2013 due to her failure to report self-employment
income. She argued that she was not self-employed, but only received payments due to a book
advance for her book deal she was under at the time. Appellant explained that her accountant
advised her that she did not have to report income if it was under $5,000.00 for the year, and she
misunderstood his advice. She argued that at no time did she intentionally withhold reporting of
her income. Rather, it was just a misunderstanding. However, as found above, the Board finds
that appellant knowingly failed to report her income. As such, her income was forfeited and she
is at fault in creating the overpayment and, thus, not entitled to waiver of recovery.

23

20 C.F.R. § 10.433(a).

24

Id. at § 10.433(c).

25

See supra note 21.

11

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 6, 2014. The Board also finds that appellant
has not met her burden of proof to establish continuing residuals or disability following the
April 6, 2014 termination of her benefits. The Board further finds that appellant forfeited her
compensation for the period June 16, 2012 through September 16, 2013, as she knowingly failed
to report her income pursuant to 5 U.S.C. § 8106(b). Additionally, OWCP properly found that
she received an overpayment of compensation, which the Board has modified to reflect the
amount of $24,820.62 during this period, and that she was at fault in the creation of such an
overpayment, thereby precluding waiver of recovery.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2014 decision of the Office of
Workers’ Compensation Programs concerning OWCP’s termination of appellant’s benefits is
affirmed. The December 4, 2014 decision concerning the forfeiture and overpayment is
affirmed, as modified.
Issued: June 23, 2016
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
PACIFIC, FORT SHAFTER, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-777
Issued: June 26, 2013

Case Submitted on the Record

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

JURISDICTION
On February 22, 2013 appellant filed a timely appeal from the September 12, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and October 30 and
December 14, 2012 nonmerit decisions. 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.
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation
effective September 12, 2012 for refusing to submit to an examination; and (2) whether it
properly denied his request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In September 1989, OWCP accepted that appellant, then a 28-year-old tools and parts
attendant, sustained a temporary aggravation of bilateral pes planus and bilateral plantar fasciitis.
Appellant received compensation for total disability on the periodic rolls.
In May 2012, appellant requested that OWCP authorize a full year of physical therapy
from Dr. Gary Goodman, an attending podiatrist. OWCP requested additional information from
Dr. Goodman regarding appellant’s foot condition and the need for therapy. It did not receive an
adequate response and it determined that a second opinion evaluation was appropriate.
In a July 24, 2012 letter, OWCP directed appellant to report at 11:30 a.m. on August 3,
2012 for a second opinion examination by Dr. William Dinenberg, a Board-certified orthopedic
surgeon.2 It advised him that, if he could not keep the scheduled appointment, he must
immediately notify his claims examiner in writing of the reason. Appellant was informed that
only legitimate, documented emergencies were adequate grounds for not keeping the
appointment and, if he did not provide an acceptable reason for missing the appointment or if he
obstructed the evaluation, his benefits would be suspended in accordance with section 8123(d) of
FECA.
In an August 9, 2012 letter, Dr. Dinenberg’s office advised OWCP that appellant did not
appear for the appointment scheduled for August 3, 2012.
In an August 9, 2012 letter, appellant stated that he was unavailable to attend an OWCPdirected medical appointment scheduled for August 3, 2012 because he was out of town on
“urgent” family business. He discussed his medical treatment and questioned whether a second
opinion examination was necessary. Appellant also expressed his opinion that, if he was referred
to a physician in the future, he should be referred to a podiatrist rather an orthopedic surgeon.
In an August 14, 2012 letter, OWCP advised appellant that it proposed to suspend his
compensation under section 8123(d) of FECA due to his failure to appear for the examination
scheduled for August 3, 2012.3 It allowed him 14 days from the date of the letter to provide
good cause for his failure to appear at the scheduled examination.
In letters dated August 17, 18 and 20, 2012, appellant asserted that he was not given
notice of the scheduled examination far enough in advance as he was out of town from around
the time the letter advising him of the appointment was sent through the time that the
examination was scheduled. He also claimed that Dr. Dinenberg’s office was too far from his
home and he again questioned the appropriateness of the second opinion examination.
In a September 12, 2012 decision, OWCP suspended appellant’s compensation effective
that date for refusing to submit to an examination. It found that he failed to establish good cause
2

OWCP listed Dr. Dinenberg’s address on North West Shore Boulevard in Tampa, Florida. It sent the July 24,
2012 letter to appellant’s address of record in Seminole, Florida.
3

OWCP sent the letter to appellant’s address of record.

2

for his failure to appear at the examination scheduled for August 3, 2012. Appellant did not
establish that an emergency prevented him from attending the examination, that it would have
been unduly burdensome for him to attend the examination or that the referral was inappropriate.
In a September 15, 2012 letter, appellant requested reconsideration of OWCP’s
September 12, 2012 decision suspending his compensation. He expressed disagreement with
OWCP’s development of his claim.
Appellant submitted copies of OWCP decisions, a referral letter for Dr. Dinenberg, a
September 18, 2012 notarized affidavit discussing the traffic between his house and
Dr. Dinenberg’s office, a September 18, 2012 notarized affidavit from his cousin discussing the
same subject and a September 24, 2012 letter from his mother-in-law indicating that in early
August 2012 he was at her home in Alabama from July 25 to August 6, 2012 helping her with a
personal problem. He also submitted a document from the Executive Director of the Southeast
Regional Arthritis Center, a copy of his bank account dated August 7, 2012, a copy of an
August 18, 2012 letter to the Secretary of Labor, copies of several medical reports and
administrative documents and a September 17, 2012 letter from the practice manager at Foot and
Ankle Physicians stating that he had notified the practice that he would be out of town for two
weeks in July 2012.
By decision dated October 30, 2012, OWCP denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the documents submitted
by him were not relevant to the suspension of his compensation.
In a November 17, 2012 letter, appellant requested reconsideration of OWCP’s
September 12, 2012 decision. He made reference to medical evidence which he deemed to be
relevant. Appellant discussed the notice standards for termination or reduction of compensation
and opined that OWCP should have contacted his treating physician to provide the missing
information rather than scheduling a second opinion examination.
Appellant submitted old medical records dated between January 1989 and
December 2008, a May 2, 2008 affidavit of Dr. Michael K. Lee, an attending podiatrist, a
May 24, 2010 narrative letter of Dr. Lee, an undated morphological data chart, office visit notes
dated between January and October 2012 of Dr. Goodman, a Form CA-17 signed on
November 1, 2012, and an October 29, 2012 statement in which Dr. Goodman described his
medical history and disability status. He also submitted documents regarding the receipt of
schedule awards, the Energy Employees Occupational Illness Compensation Program, several
Notification of Personnel Action forms, an October 2012 request for treatment and an
October 22, 2012 letter in which he discussed the sufficiency of medical evidence from his
podiatrists.
In a December 14, 2012 decision, OWCP denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

3

LEGAL PRECEDENT -- ISSUE 1
Section 8123(a) of FECA provides that an employee shall submit to examination by a
medical officer of the United States or by a physician designated or approved by the Secretary of
Labor, after the injury and as frequently and at the times and places as may be reasonably
required.4 The regulations governing the administration of FECA also provide that the employee
must submit to an examination by a qualified physician “as often and at such times and places as
OWCP considers reasonably necessary.”5 Section 8123(d) of FECA provides that, if an
employee refuses to submit to or obstructs an examination, his or her right to compensation
under this subchapter is suspended until the refusal or obstruction stops.6
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.7
ANALYSIS -- ISSUE 1
Appellant did not appear for a second opinion evaluation scheduled with Dr. Dinenberg,
a Board-certified orthopedic surgeon, on August 3, 2012. OWCP suspended his compensation
effective September 12, 2012 for failure to appear at an OWCP-directed examination.
Regarding his failure to appear for the examination, appellant stated that he was out of
town on family business around the date of the second opinion appointment. Prior to the
September 12, 2012 suspension of his compensation, he did not state the nature of the family
business or provide evidence to support that he was out of town during the period. Appellant did
not notify OWCP prior to the examination scheduled for August 3, 2012 that he would not be
available. Nor did he seek to reschedule the examination. Therefore, appellant’s argument that
family business precluded his attendance is not substantiated as good cause.
Appellant also argued that he was not adequately notified in time to keep the
appointment. The letter notifying him of the date, time and location of the appointment was
mailed to his address of record on July 24, 2012, some 10 days prior to the date of the scheduled
examination. It is presumed that appellant received this letter in a timely manner and that he
would have had sufficient time to respond to the letter.8 Appellant did not submit any evidence
to rebut this presumption.
Appellant argued that a podiatrist would have been better suited to examine his condition
than an orthopedic surgeon. The Board notes that podiatrists are qualified to render an opinion
4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.320.

6

5 U.S.C. § 8123(d).

7

Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

8

See Kenneth E. Harris, 54 ECAB 502 (2003).

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on foot/ankle injuries. Orthopedic surgeons, as specialists in the musculoskeletal structure of the
body, are also qualified to render such an opinion. It is further noted that the determination of
the need for an examination, the type of examination, the choice of locale and the selection of
medical examiners are matters within the province and discretion of OWCP.9
Appellant argued that the location of the examination scheduled for August 3, 2012 was,
at best, an inconvenience and was overly burdensome. The Board notes that the location of the
appointment was determined to be 22 miles from his residence, requiring a driving time of about
30 minutes. Appellant has not established good cause that getting to the examination would have
been unduly burdensome.10
For these reasons, appellant failed to attend an examination directed by OWCP without
good cause. Therefore, under 5 U.S.C. § 8123(d), his compensation was properly suspended
effective September 12, 2012.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) establish that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.12 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.13 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.14 The Board has held that the submission of evidence

9

See Dana D. Hudson, 57 ECAB 298 (2006).

10

On appeal, appellant submitted argument concerning the manner in which his claim has been developed.
However, he did not show that OWCP improperly suspended his compensation effective September 12, 2012.
11

5 U.S.C. § 8128(a). Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

5

or argument which repeats or duplicates evidence or argument already in the case record15 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.16 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.17
ANALYSIS -- ISSUE 2
OWCP issued a decision on September 12, 2012. Appellant requested reconsideration of
this decision on October 10 and November 17, 2012. OWCP denied merit review in decisions
dated October 30 and December 14, 2012.
The Board finds that appellant met the requirements of 20 C.F.R. § 10.606(b)(2),
requiring OWCP to reopen the case for review of the merits of the claim. In connection with his
October 2012 application for reconsideration, appellant submitted a September 24, 2012 letter
from his mother-in-law indicating that in early August 2012 he was at her home in Alabama
from July 25 to August 6, 2012 helping her with a personal problem. He also submitted a
September 17, 2012 letter from the practice manager at Foot and Ankle Physicians stating that he
had notified the practice that he would be out of town for two weeks in July 2012. These newly
submitted documents are relevant to the issue of the suspension of appellant’s compensation for
failure to appear at an OWCP-directed examination on August 3, 2012. They pertain to his claim
that he was out of town at the time of OWCP’s July 24, 2012 notice of the appointment and the
scheduled date for the appointment of August 3, 2012.
Given that appellant submitted new and relevant evidence, OWCP improperly denied
merit review pursuant to 20 C.F.R. § 10.608.18 Therefore, the case shall be remanded to OWCP
in order to conduct a merit review on the matter of the suspension of appellant’s compensation
effective September 12, 2012. After such proceedings as it deems necessary, OWCP shall issue
an appropriate decision on the merits.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation effective
September 12, 2012 for refusing to submit to an examination. The Board further finds that it
improperly denied appellant’s request for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

15

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

16

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

17

John F. Critz, 44 ECAB 788, 794 (1993).

18

See supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the September 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed. The December 14 and October 30, 2012
decisions of OWCP are set aside and the case remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: June 26, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MANN-GRANDSTAFF VETERANS AFFAIRS
MEDICAL CENTER, Spokane, WA, Employer
__________________________________________

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

Docket No. 20-0776
Issued: March 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 19, 2020 appellant filed a timely appeal from a December 12, 2019 merit
decision and a January 22, 2020 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,094.07 for the period July 9 through 20, 2019 because she received wage-loss
compensation for total disability after she had returned to part-time work; (2) whether OWCP
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 22, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

properly determined that appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment; and (3) whether it properly denied appellant’s
request for a prerecoupment hearing as untimely filed.
FACTUAL HISTORY
On May 1, 2018 appellant, then a 55-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on April 30, 2018 she sustained bilateral knee, head, and back
injuries when she fell forward while attempting to unjam a Xerox photocopy machine. OWCP
accepted the claim for right knee contusion and neck muscle, fascia, and tendon strain, and
subsequently expanded acceptance of the claim to include thoracic ligaments sprain, and
permanent cervical disc aggravation. It paid appellant intermittent wage-loss compensation on the
supplemental rolls for the period June 15, 2018 through March 30, 2019 and on the periodic rolls
for the period March 31 through July 20, 2019.
In a letter dated April 9, 2019, OWCP advised appellant that she would be paid on the
periodic rolls, outlined her entitlement to compensation benefits, and advised her of her
responsibility to return to work in connection with the accepted injury. In an attached EN-1049
form, it related:
“OVERPAYMENTS: To minimize the possibility of an overpayment of
compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. If you receive your compensation payments via paper check,
the payment shows the period for which payment is made. If you have worked for
any portion of this period, return the payment to this office, even if you have already
advised OWCP that you are working. For payments sent by electronic funds
transfer (EFT), a notification of the date and amount of payment appears on the
statement from your financial institution. You are expected to monitor your EFT
deposits carefully, at least every two weeks. If you have worked for any portion of
the period for which a deposit was made, advise OWCP immediately so that the
overpayment can be collected.” (Emphasis in the original.)
In a report dated July 8, 2019, Ann Mikel, a registered nurse, the field nurse assigned to
appellant’s claim noted that appellant returned to light-duty work for four hours per day for two
weeks on June 27, 2019, which would increase to six hours per day for two weeks, and then
increase to eight hours per day.
The record reflects that on July 20, 2019 appellant was paid wage-loss compensation on
the periodic rolls for the period June 23 through July 20, 2019.
Appellant filed a claim for intermittent wage-loss compensation (Form CA-7) for the
period July 7 through 20, 2019. On the reverse side of the claim form the employing establishment
noted that she was working reduced hours and performing limited duties. In an attached time
analysis form (Form CA-7a), appellant noted that on July 8, 2019 she had used eight hours of leave
without pay (LWOP) because she had not been released to return to duty work, and that she had
worked four hours per day and taken four hours of LWOP for the period July 9 through 19, 2019.

2

In an amended August 7, 2019 fiscal form, OWCP noted that appellant had returned to
part-time work on July 9, 2019, but that it continued to pay her compensation for temporary total
disability through July 20, 2019. On August 7, 2019 it calculated that she had been overpaid in
the amount of $1,094.07 for the days she received compensation following her return to part-time
work on July 9, 2019. OWCP noted that, during this period, appellant had been paid a net payment
of $2,605.98, but she was only entitled to receive a net payment of $1,511.91 resulting in an
overpayment of compensation in the amount of $1,094.07.
On August 29, 2019 OWCP advised appellant of its preliminary determination that she had
received an overpayment of compensation in the amount of $1,094.07 for the period July 9 through
20, 2019 because she returned to part-time employment on July 9, 2019, but received wage-loss
compensation for total disability through July 20, 2019. It further notified her of its preliminary
finding that she was at fault in the creation of the overpayment because she accepted a payment
that she knew or reasonably should have known, was incorrect. Additionally, OWCP informed
appellant that, within 30 days, she could request a telephonic conference, a final decision based on
the written evidence, or a prerecoupment hearing. It requested that she complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. There was no response from appellant.
By decision dated December 12, 2019, OWCP finalized its preliminary determination that
appellant received an overpayment of compensation in the amount of $1,094.07 for the period
July 9 through 20, 2019.3 It determined that she was at fault in the creation of the overpayment
and was therefore precluded from waiver of recovery of the overpayment. OWCP required
repayment in full within 30 days.
On December 31, 2019 OWCP received appellant’s September 5, 2019 request for a
prerecoupment telephonic hearing before an OWCP hearing representative, postmarked
December 20, 2019.
By decision dated January 22, 2020, OWCP denied appellant’s request for a
prerecoupment hearing as she did not request a prerecoupment telephonic hearing within 30 days
of the preliminary overpayment finding. It also noted that a final overpayment decision was not
subject to the hearing provisions of 5 U.S.C. § 8124(b).
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA4 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.5
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
3
OWCP noted the period as June 23 through July 20, 2019, but calculated the overpayment based on appellant’s
July 9, 2019 return to work.
4

Supra note 1 at § 8102.

5

Id. at § 8116.

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not receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.6 OWCP’s procedures provide that an overpayment in compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period July 9 through 20, 2019.
The evidence of record establishes that appellant returned to work in a modified position
at the employing establishment for four hours a day on July 9, 2019, but she continued to receive
wage-loss compensation for temporary total disability through July 20, 2019. As noted above, a
claimant is not entitled to receive compensation for total disability during a period in which he or
she had actual earnings. Therefore, an overpayment of compensation was created in this case.8
In determining the amount of overpayment, OWCP calculated the net amount of disability
compensation that appellant had received from July 9 through 20, 2019. It properly determined
that she had been paid a net payment of $2,605.98, but was only entitled to receive a net payment
of $1,511.91 resulting in an overpayment of $1,094.07. Thus, the Board finds that she received
an overpayment of compensation in the amount of $1,094.07 during the above-noted period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides as follows that adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.9 No waiver of recovery of an overpayment is possible if the
claimant is at fault in the creation of the overpayment.10
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; (2) failed to furnish information which the
individual knew or should have known to be material; or (3) with respect to the overpaid individual
only, accepted a payment which the individual knew or should have been expected to know was
incorrect.11

6

Id. at § 8116(a).

7

C.A., Docket No. 18-0092 (issued April 2, 2018); Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Action, Chapter 6.200.2(a) (September 2018).
8

Id.

9

5 U.S.C. § 8129(b).

10

B.W., Docket No. 19-0239 (issued September 18, 2020); C.L., Docket No. 19-0242 (issued August 5, 2019).

11

20 C.F.R. § 10.433(a).

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With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provides that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment from July 9 through 20, 2020.
In cases where a claimant receives compensation through direct deposit, the Board has held
that OWCP must establish that at the time the claimant received the direct deposit in question that
he or she knew or should have known that the payment was incorrect.13 The Board has held that
a claimant who receives payments from OWCP in the form of a direct deposit may not be at fault
for the first incorrect deposit into his or her account since the acceptance of the overpayment, at
the time of receipt of the direct deposit, lacks the requisite knowledge.14 Because fault is defined
by what the claimant knew or should have known at the time of acceptance, one of the
consequences of EFT deposits is that the claimant lacks the requisite knowledge at the time of the
first incorrect payment.15
Appellant returned to work on July 9, 2019. OWCP paid her compensation for the period
July 9 through 20, 2019 in a direct deposit payment on July 20, 2019. There is no documentation
to demonstrate that appellant had clear knowledge at the time the bank received the July 20, 2019
direct deposit that the payment was incorrect.16 The Board thus finds that she was without fault in
accepting the initial direct deposit covering the period July 9 through 20, 2019.
The Board therefore finds that this case is not in posture for decision regarding the issue
of waiver of recovery of the overpayment for the period July 9 through 20, 2019. The Board will
set aside the December 12, 2019 decision regarding the issue of fault for that period and remand
the case to OWCP to determine whether appellant is entitled to waiver of recovery of the
overpayment covering the period July 9 through 20, 2019.17
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$1,094.07 for the period July 9 through 20, 2019, because she continued to receive wage-loss
compensation after she returned to part-time work. The Board further finds that she was without
12

Id. at § 10.433(b).

13

See C.H., Docket No. 19-1470 (issued January 24, 2020); see also Claude T. Green, 42 ECAB 174, 278 (1990).

14

C.H., id.; see Tammy Craven, 57 ECAB 589 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

15

Id.

16

See B.W., supra note 10; K.E., Docket No. 19-0978 (issued October 25, 2018).

17

M.P., Docket No. 20-1035 (issued December 1, 2020).

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fault in the creation of the overpayment and the case will be remanded to OWCP to consider waiver
of recovery of the overpayment.18
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The December 12,
2019 decision of the Office of Workers’ Compensation Programs is set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: March 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

In light of the Board’s disposition of issue 2, issue 3 is rendered moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1080
Issued: January 2, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On April 16, 2019 appellant filed a timely appeal from an April 3, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned this case Docket No. 19-1080.
The Board has duly considered the matter and notes that in the case of William A. Couch1
it held that when adjudicating a claim OWCP is obligated to consider all evidence properly
submitted by a claimant and received by OWCP before the final decision is issued.
On February 12, 2019 appellant, then a 48-year-old customer care agent, filed an
occupational disease claim (Form CA-2) alleging that he experienced lower back pain due to
factors of his federal employment, which included sitting for 8 to 10 hours a day. Appellant
submitted a narrative statement and a February 11, 2019 doctor’s note as evidence.
In a February 28, 2019 development letter, OWCP advised appellant that additional
evidence was required in support of his claim for compensation benefits. It noted that no diagnosis
of a condition resulting from his employment had been received. OWCP requested that appellant
submit a comprehensive narrative medical report from a qualified physician that included a
1

41 ECAB 548 (1990).

diagnosis and an opinion, supported by medical rationale, addressing how the claimed employment
incident caused or aggravated a medical condition. It afforded him 30 days to submit the requested
medical evidence.
In response, on April 2, 2019 appellant submitted November 21, 2018 medical records,
November 22, 2018 blood test results, and December 20, 2018 and February 11, 2019 progress
notes.
By decision dated April 3, 2019, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish that a medical condition
was diagnosed in connection to the accepted employment factors. It found that, “[y]ou were
provided 30 days to submit the requested information. No further evidence was received.” OWCP
did not note receipt or consideration of the November 21, 2018 medical records, November 22,
2018 blood test results, the December 20, 2018 progress notes or the February 11, 2019 progress
notes.
The Board finds that OWCP, in its April 3, 2018, decision, did not review the
November 21, 2018 medical records, the November 22, 2018 blood test results, the December 20,
2018 progress notes, or the February 11, 2019 progress notes. Whether OWCP receives relevant
evidence on the date of the decision or days before, such evidence must be considered.2 As the
Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant
to the subject matter of the claim properly submitted to OWCP be reviewed and addressed.3 For
this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence
submitted at the time of the April 3, 2019 decision. Following such further development as OWCP
deems necessary, it shall issue a de novo decision on the claim. Accordingly,

2

T.J., Docket No. 14-1854 (issued February 3, 2015); J.J., Docket No. 12-1062 (issued December 12, 2012);
William McKennon, 51 ECAB 145 (1999).
3

T.J., id.; see Yvette N. Davis, 55 ECAB 475 (2004).

2

IT IS HEREBY ORDERED THAT the April 3, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: January 2, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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