United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
RESERVES, Sparta, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1583
Issued: November 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 25, 2013 appellant filed a timely appeal from the February 5, 2013 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.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation effective February 10, 2013 on the grounds that he refused an offer of suitable
work.
FACTUAL HISTORY
OWCP accepted that on August 11, 1980 appellant, then a 32-year-old aircraft repair
inspector, sustained a lifting injury which caused an acute lumbosacral strain, chronic
1

5 U.S.C. §§ 8101-8193.

lumbosacral strain and herniated L5-S1 disc with radiculopathy. It also accepted that he
sustained a sacroiliac strain due to a lifting incident on June 9, 1981. Appellant received
disability compensation on the periodic rolls. He stopped work for the employing establishment
in 1996 but continued to receive disability compensation.
In a September 20, 2010 report, Dr. Kenneth H. Yuska, a Board-certified orthopedic
surgeon serving as an OWCP referral physician, determined that appellant could work on a fulltime basis with restrictions. He listed occasionally lifting up to 30 pounds, frequently lifting up
to 15 pounds and avoiding repetitive spine flexion, squatting and kneeling.
On October 21, 2011 Dr. Daniel E. Sajdak, an attending osteopath and Board-certified
family practitioner, provided an opinion that appellant’s work-related back injury disabled him
from all work.
OWCP determined that there was a conflict in the medical opinion regarding appellant’s
ability to work. It referred appellant to Dr. Peter A. Cederberg, a Board-certified orthopedic
surgeon, for an impartial medical examination and opinion on this matter. In an April 6, 2012
report, Dr. Cederberg found that appellant could return to sedentary work on a full-time basis
with restrictions of no lifting more than 20 pounds.
On December 4, 2012 the employing establishment offered appellant a full-time job as a
military pay technician in Fort McCoy, WI. The position involved reviewing military pay
account transactions for reservists and required some physical effort, including standing,
walking, sitting and bending.2
In letters dated December 11 and 15, 2012, appellant asserted that he was unable to work
due to debilitating back pain. He argued that it was improper for the employing establishment to
offer him a job outside of his commuting area. On December 15, 2012 appellant checked a box
on a form declining the military pay technician job. He added a notation, “I am not declining the
job but I have to decline relocating.”
In a December 21, 2012 letter, OWCP advised appellant of its preliminary determination
that the military pay technician position offered by the employing establishment on December 4,
2012 was suitable. It asserted that the duties of the position were in accordance with the work
restrictions provided on April 6, 2012 by Dr. Cederberg and that the weight of the medical
evidence regarding his ability to work rested with the medical referee’s opinion. OWCP stated:
“Upon acceptance of this position, you will be paid compensation based on the
difference (if any) between the pay of the offered position and the current pay of
your position on the date of injury. You are expected to accept the position and
report to duty, or arrange for a report date, within 30 days of the date of this letter.
If you fail to accept this position, you must provide a written explanation of your
reasons within 30 days.

2

At the time, appellant’s residence was in Campbellsport, WI, about 150 miles from Fort McCoy.

2

“5 U.S.C. § 8106(c)(2) states that ‘A partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for him
is not entitled to compensation.’ Therefore, any claimant who refuses an offer of
suitable employment (or fails to report for work when scheduled) is not entitled to
any further compensation for wage loss or schedule award.
“If you fail to report to the offered position, and fail to demonstrate that the failure
is justified, your right to compensation and schedule award will be terminated.”
In a January 7, 2013 letter, appellant stated that he was attaching a letter from Dr. Sajdak
who requested that he undergo an evaluation of his current lower back condition before he
returned to any employment, rather than relying on the evaluation obtained some 27 months
prior by Dr. Yuska. He asserted that there should also be a follow-up examination by another
attending physician before he returned to work. Appellant contended that his condition had
significantly worsened in the cold winter months and that he had been immobile or in serious
pain for several days in the last couple weeks.
In the attached January 7, 2003 letter, Dr. Sajdak stated that he was currently providing
medical care. He advised that appellant had recently experienced increased sciatic pain in his
lower back which caused mobility issues and noted, “Due to his current condition, I am
recommending he complete a disability evaluation to accurately determine his physical
limitations along with his ability to work. This evaluation should be done prior to any
employment so as to avoid the possibility of exacerbating his current condition.”
In a February 5, 2013 decision, OWCP terminated appellant’s wage-loss and schedule
award compensation effective February 10, 2013 finding that he refused an offer of suitable
work.3 It stated:
“In response to our [December 21, 2012] letter you submitted a medical report
dated [January 7, 2013] from Dr. Sajdak that continued to opine that you were not
capable of work due to sciatic pain. Pain is considered a subjective complaint and
there has been no objective medical evidence provided to support any change in
your ability to work. Dr. Sajdak is a family physician and he has not provided
sufficient medical evidence to refute the well-rationalized opinion of
Dr. Cederberg.”
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”4 However, to justify such termination, OWCP must show that the work offered

3

OWCP indicated that it was not terminating appellant’s medical benefits.

4

5 U.S.C. § 8106(c)(2).

3

was suitable.5 An employee who refuses or neglects to work after suitable work has been offered
to him has the burden of showing that such refusal to work was justified.6
When OWCP informs a claimant that it has determined that a given offered position is
suitable and invites him to write and give reasons for not accepting, OWCP acknowledges that its
determination is not yet final and that a reasonable explanation would justify the claimant’s refusal
of the position and result in the continuation of his compensation for disability. Certain
explanations will, of course, justify a claimant’s refusal to accept an offer of employment.
OWCP’s procedure manual itself lists a number of reasons that are considered acceptable.7 If a
claimant refuses the employment offered and provides such a reason, OWCP will consider his
refusal justified and will continue his compensation for disability.8
If a claimant chooses to respond within 30 days and gives reasons for not accepting the
offered position, OWCP must consider these reasons before it can make a final determination on
the issue of suitability. Only after it has made a final determination on the issue of suitability can
OWCP afford the claimant an opportunity to accept or refuse an offer of suitable work. Only after
it has finalized its decision on suitability can OWCP notify the claimant that refusal to accept shall
result in the termination of compensation, as the language of 5 U.S.C. § 8106(c) clearly mandates.9
OWCP’s regulations provide that OWCP shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter OWCP’s finding of suitability. If the employee presents such reasons, and
OWCP determines that the reasons are unacceptable, it will notify the employee of that
determination and that he or she has 15 days in which to accept the offered work without penalty.
At that point in time, OWCP’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.10
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation effective February 10, 2013 on the grounds that he refused an offer of suitable
work.
In this case, OWCP did not afford appellant an opportunity to accept the military pay
technician position offered by the employing establishment after making a final determination
that the position was suitable. It therefore denied him a reasonable opportunity to accept the
5

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

6

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5 (June 2013).
8

Id.

9

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

10

20 C.F.R. § 10.516.

4

offer of “suitable” work. Without such an opportunity, appellant cannot be held to have refused
an offer of suitable work within the meaning of 5 U.S.C. § 8106(c). He submitted evidence in
support of his refusal to accept the offered position within 30 days of December 21, 2012, the
date that OWCP advised appellant that he had 30 days to accept the offered position or provide
justification for not accepting it.11 On February 5, 2013 OWCP issued a decision in which it
determined that appellant had refused an offer of suitable work. It determined that the evidence
submitted by him in support of his refusal to accept the offered position was unacceptable, and in
doing so it finalized its preliminary decision on suitability. At the same instant, however, OWCP
terminated appellant’s compensation for disability, without notifying him that he had 15 days in
which to accept the offered work without penalty. Thus, it denied appellant an opportunity to
accept the position after determining it to be a suitable one.
In view of the foregoing, the Board finds that OWCP has not met its burden of justifying
termination of appellant’s compensation.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation effective February 10, 2013 on the grounds that he refused an offer of suitable
work.

11

Appellant submitted a January 7, 2013 letter and a January 7, 2013 report of Dr. Sajdak, an attending osteopath
and Board-certified family practitioner.

5

ORDER
IT IS HEREBY ORDERED THAT the February 5, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 26, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Aumiller Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0473
Issued: June 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 23, 2016 appellant, through counsel, filed a timely appeal from a June 28,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days elapsed between the last merit decision dated March 31, 2015 to the filing of this

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(f).
One hundred eighty days from June 28, 2016, the date of OWCP’s last decision, was
December 25, 2016. Since using January 3, 2017, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is December 23, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request as it was
untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On May 7, 2014 appellant, then a 47-year-old body repairman, filed a traumatic injury
claim (Form CA-1) alleging that on May 7, 2014 he sustained a right shoulder injury when he
was lifting a long line vehicle windshield. He notified his supervisor and stopped work on the
date of the injury.
By letter dated May 9, 2014, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was afforded 30 days to submit the necessary evidence.
In support of his claim, appellant submitted May 7, 2014 discharge instructions from the
emergency department documenting possible rotator cuff injury. In a May 7, 2015 diagnostic
report, Dr. Samir Tilak, a treating radiologist, reported that an x-ray of the right shoulder
revealed osteoarthritis with no definite fracture.
In a May 9, 2014 medical report, Dr. Luke Austin, a Board-certified orthopedic surgeon,
provided a history of the May 7, 2014 employment incident, findings on physical examination,
and review of diagnostic testing. He diagnosed right shoulder rotator cuff tear arthropathy and
restricted appellant to modified duty. In an Attending Physician’s Report (Form CA-20) of the
same date, Dr. Austin reported that, on May 7, 2014, appellant was repairing a glass and started
experiencing increasing pain as he was reaching, when he felt a pop in his right shoulder causing
him to seek emergency medical treatment. He noted a history of prior right shoulder
arthroscopy. Dr. Austin diagnosed right shoulder rotator cuff tear and checked the box marked
“yes” when asked if the condition was caused or aggravated by the employment activity.
By decision dated June 16, 2014, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed condition was causally related to the
accepted May 7, 2014 employment incident.
By letter dated June 24, 2014 appellant, through counsel, requested a telephone hearing
before an OWCP hearing representative.
In a June 30, 2014 medical report, Dr. Austin diagnosed right shoulder rotator cuff tear
arthropathy, noting that it was a work injury. He reported that appellant previously had a right
shoulder rotator cuff tear that was chronic and irreparable which was deemed to be a workrelated injury from prior claims. Dr. Austin noted that the cuff tear arthritis was secondary to the
chronic rotator cuff problems which appellant had for many years. He noted treating appellant
3

5 U.S.C. § 8101 et seq.

2

approximately three years ago for debridement surgery of the rotator cuff because it was
irreparable at that time. Appellant had returned to full-duty work and had been able to
participate over the last three years without difficulty. He reported that the pain in his shoulder
continued, but that he would like to return to work. In a duty status report (Form CA-17),
Dr. Austin released appellant to work with restrictions.
A hearing was held on January 15, 2015. Counsel reported that appellant had a
significant history of accepted work-related claims to the same shoulder and that this current
claim would be an aggravation of a preexisting condition. He further suggested the claims
should be combined since they involved the same body part. The record was held open for 30
days.
By decision dated March 31, 2015, OWCP’s hearing representative affirmed the June 16,
2014 decision finding that the evidence of record failed to establish that appellant’s diagnosed
condition was causally related to the accepted May 7, 2014 employment incident.4
On March 31, 2016 OWCP received a March 31, 2016 brief wherein counsel requested
reconsideration of the March 31, 2015 decision of the Branch of Hearings and Review. Counsel
referenced submission of new medical reports in support of appellant’s claim and further argued
that this claim should be combined with his previously accepted claims.
In support of his claim, appellant provided a February 24, 2010 operative report from
Dr. Tod Lipschultz, a Board-certified orthopedic surgeon, a November 19, 2010 magnetic
resonance imaging scan of the right shoulder with examination of the right shoulder arthrogram
from Dr. Tilak, a March 2, 2011 operative report from Dr. Austin, and a June 4, 2012 unsigned
permanent impairment evaluation.
By decision dated June 28, 2016, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6

4

The Board notes that, under OWCP File No. xxxxxx952, OWCP accepted a right hand contusion on
June 25, 2003. Under File No. xxxxxx946, OWCP accepted bilateral shoulder sprains, right lateral epicondylitis,
and right elbow/forearm sprain on February 22, 2005. Under File No. xxxxxx855, OWCP accepted right shoulder
strain on January 3, 2008; it also accepted recurrences in September 2009 and February 2010 and appellant
underwent OWCP approved shoulder surgery in March 2008 and February 2010. Under File No. xxxxxx918,
OWCP accepted a right shoulder sprain, rotator cuff tear, and right shoulder disorder of bursae and tendons for
which appellant underwent OWCP approved right shoulder surgery in March 2011. OWCP granted a schedule
award for 12 percent permanent impairment of the right upper extremity in February 2014.
5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

3

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review demonstrates clear evidence of error on
the part of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a
claimant must submit evidence relevant to the issue decided by OWCP. The evidence must be
positive, precise, and explicit and it must manifest on its face that OWCP committed an error.7
ANALYSIS
In its June 28, 2016 decision, OWCP denied appellant’s request for reconsideration of the
March 31, 2015 merit decision, finding that it was untimely filed and failed to demonstrate clear
evidence of error. The Board finds, however, that OWCP improperly determined that his request
for reconsideration was untimely filed within the one-year time limitation period set forth in 20
C.F.R. § 10.607.8
On March 31, 2015 an OWCP hearing representative issued a decision finding that the
evidence of record failed to establish that appellant’s diagnosed condition was causally related to
the accepted May 7, 2014 employment incident. Accordingly, appellant had until March 31,
2016 to make a timely request for reconsideration.9 OWCP determined that his request for
reconsideration should have been received on March 30, 2016. As appellant’s request was not
received until March 31, 2016, OWCP determined that the request for reconsideration was
untimely filed. The Board finds, however, that he submitted a timely request for reconsideration
on March 31, 2016 with evidence and argument in support of his claim, within the required oneyear time period.10
20 C.F.R. § 10.607 provides that an application for reconsideration must be received by
OWCP within one year of the date of OWCP decision for which review is sought. In C.B., the
Board held that for OWCP decisions issued on or after August 29, 2011, the date of the
application for reconsideration is the “received date” as recorded in the Integrated Federal
Employees’ Compensation System.11 In this case, the received date of the application was
March 31, 2016, one year after the March 31, 2015 OWCP decision. The Board also noted in
C.B., that it is well established that when the date of the reconsideration request is exactly one
year after the date of OWCP’s decision, it is timely under 20 C.F.R. § 10.607(a).12 Since
appellant’s application for reconsideration was received within one year of OWCP’s decision for
which review was sought, it was timely.

7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

8

J.L., Docket No. 12-1181 (issued November 1, 2012).

9

OWCP’s procedures were changed effective August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Time Limitations Chapter 2.1602.4 (February 2016). Section 10.607 of the new
regulations provide that the date of the reconsideration request for timeliness purposes was changed from the date
the request was mailed to the date the request was received by OWCP. 20 C.F.R. § 10.607 (2011).
10

Id.

11

Docket No. 13-1732 (issued January 28, 2014).

12

Id.

4

The Board finds that OWCP improperly denied appellant’s reconsideration request by
applying the legal standard for cases where reconsideration is requested after more than one year
has elapsed. OWCP should have applied the legal standard reserved for timely reconsideration
requests as set forth in 20 C.F.R. § 10.606(b)(3).13 Since it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the more stringent clear
evidence of error standard, the Board will remand the case for review of this evidence under the
proper standard of review for a timely reconsideration request.14
CONCLUSION
The Board finds that OWCP improperly found that appellant’s reconsideration request
was untimely filed and failed to demonstrate clear evidence of error.15
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for action consistent with this
decision.
Issued: June 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
13

20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that an application for reconsideration must be in
writing and set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.
14

Dewayne C. Davis, Docket No. 94-2346 (issued August 14, 1997).

15

D.S., Docket No. 15-1841 (issued June 8, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
UNDERSEA WARFARE CENTER, KEYPORT
DIVISION, Keyport, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-645
Issued: July 24, 2014

Case Submitted on the Record

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

JURISDICTION
On January 29, 2014 appellant filed a timely appeal from a January 17, 2014 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.
ISSUE
The issue is whether appellant filed a timely claim for compensation under 5 U.S.C.
§ 8122.
FACTUAL HISTORY
On September 16, 2013 appellant, then a 59-year-old electronics engineer, filed an
occupational disease claim (Form CA-2) alleging that on December 20, 2004, he became aware
1

5 U.S.C. § 8101 et seq.

of his bilateral hearing loss and first realized that it was caused or aggravated by duties of his
federal employment. He stated that he was unaware of any government program that could be
used to mitigate his hearing loss until September 10, 2013. Appellant explained that from
October 1995 through March 2006 he was a member of an electronic equipment installation
team, which installed system upgrades to Navy vessels. Some of the equipment he installed was
located in very noisy main machinery spaces. Appellant noted that he purchased hearing aids
using personal funds in December 2005 and that there was no documented evidence in his
personnel records to support his claim. Scott Hultquist, a supervisor, noted that appellant was
already present at work when hired, that he wore hearing aids when he was hired and that he had
difficulty hearing even with the devices. The employing establishment challenged appellant’s
claim on the basis that it was untimely.
On September 30, 2013 OWCP requested that appellant submit additional evidence to
establish his claim. It noted that the evidence of record did not establish that he provided timely
notification of his work injury. OWCP also requested that the employing establishment submit
any factual and medical evidence related to appellant’s noise exposure.
Appellant submitted a record of diagnostic testing from Dr. Stephen Habener, a Boardcertified otolaryngologist, dated May 17, 2006. He also submitted several unsigned audiological
evaluations from September 8, 2008, June 15, 2012 and July 5, 2013. None of the records
contained an opinion on the cause of appellant’s condition.
In an undated statement and an exposure data record, appellant reviewed his employment
history with the Federal Government. He noted that from January 1977 through June 1980, he
was employed on U.S. Navy vessels, where he was exposed to high levels of noise seven hours a
day. On June 1, 1986 appellant was involved in a training exercise that exposed him to high
levels of noise for four hours. From October 1980 through January 1988, he was an electronics
mechanic at the employing establishment, where he was exposed to high levels of noise. From
February 1988 through May 2004, appellant was an electronics engineer at the same employing
establishment, where he was exposed to loud hammering noise for at least eight hours a day. He
noted that he remained an electronics engineer at the employing establishment in a different unit
from June 2004 through April 2007 and then switched to yet another unit in the same position
from April 2007 through the present. On the exposure data record, appellant stated that he
always wore hearing protection.
On October 4, 2013 appellant stated that he first noticed his hearing loss on
approximately December 20, 2004. He stated that he had no previous hearing problems and that
there were no employer-sponsored noise evaluation studies or preemployment physical
examinations regarding his hearing. Appellant explained that his claim was not filed earlier
because he was unaware that he could file a claim until September 13, 2013. He submitted a
Form SF-50, Notification of Personnel Action, that indicated that he remained employed as an
electronics engineer as of September 9, 2012.
On November 1, 2013 the employing establishment controverted appellant’s claim and
stated that he had not filed his claim in a timely manner, as he was last exposed to hazardous
noise in 2004 and did not file a claim until September 16, 2013.

2

By decision dated January 17, 2014, OWCP denied appellant’s claim for hearing loss as
untimely filed. It found that his claim was not timely filed within three years of the date of last
exposure or that his immediate supervisor had actual knowledge within 30 days of the date of
last exposure. OWCP found that the date of appellant’s last exposure was in June 2004, the date
of injury was December 20, 2004, and his claim for compensation was not filed until
September 11, 2013.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless: (1) the immediate superior had actual knowledge of the injury
or death within 30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or (2) written notice of injury or death as
specified in section 8119 was given within 30 days.3
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.6
Section 8122(b) of FECA provides that the time for filing in latent disability cases does
not begin to run until the claimant is aware or by the exercise of reasonable diligence should
have been aware, of the causal relationship between the employment and the compensable
disability and the Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the impairment.7
2

Charles Walker, 55 ECAB 238, 239 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

3

5 U.S.C. § 8122(a).

4

Id. at § 8119; Larry E. Young, 52 ECAB 264, 266 (2001).

5

Laura L. Harrison, 52 ECAB 515, 517 (2001).

6

Delmont L. Thompson, 51 ECAB 155, 156 (1999).

7

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360, 361 (2001).

3

In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his or her federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.8 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
ANALYSIS
The Board finds that this case is not in posture for decision.
On September 16, 2013 appellant filed an occupational disease claim alleging hearing
loss due to factors of his federal employment. He stated that he first became aware of the
condition’s relationship to his employment on December 20, 2004, and this is the date that
OWCP accepted as his date of injury. Appellant’s noise exposure data record indicated that he
was last exposed to hazardous noise in June 2004; however, he also indicated that he remained in
the same position through March 2006 on his Form CA-2. The record also indicates that he
remained an electronics engineer at the employing establishment in a different unit from
June2004 through April 2007 in his review of his employment history. Furthermore, appellant
submitted a Form SF-50, Notification of Personnel Action, that indicated he remained employed
as an electronics engineer as of September 9, 2012. In its decision of January 17, 2014, OWCP
noted that it accepted a date of last exposure to hazardous noise in June 2004 on the basis of his
employment history and the employing establishment’s November 1, 2013 statement. The
November 1, 2013 statement itself listed a date of last exposure in 2004 and otherwise relied
entirely upon an attached noise exposure record provided by appellant. The Board finds that
OWCP did not adequately develop the issue of appellant’s last date of exposure to hazardous
noise as there is contradictory evidence of record.
Appellant’s claim would be regarded as timely under section 8122(a) of FECA if his
immediate supervisor had actual knowledge of the injury or if he provided written notice, within
30 days of his injury, i.e., within 30 days of December 20, 2004.11 In OWCP’s January 17, 2014
decision, the claims examiner stated that the evidence did not support that appellant’s immediate
supervisor had actual knowledge within 30 days of appellant’s injury. The Board finds that this
issue was not adequately developed.
8

Larry E. Young, supra note 4.

9

Id.

10

Debra Young Bruce, 52 ECAB 315, 317 (2001).

11

See 5 U.S.C. § 8122(a); Ralph L. Dill, 57 ECAB 248, 251 (2005).

4

In appellant’s Form CA-2 filed on September 16, 2013, Mr. Hultquist, a supervisor, noted
that appellant was already present at work when he was hired as supervisor. He noted that
appellant wore hearing aids and had difficulty hearing even with the device. This statement is
relevant to the issue of actual knowledge of appellant’s hearing loss. OWCP did not request
additional information or clarification from his supervisor regarding whether and when he was
aware of appellant’s hearing loss. The development letter sent to the employing establishment
on September 30, 2013 only requested that it submit factual and medical evidence related to
appellant’s noise exposure.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While appellant has the burden to establish her claim, OWCP
shares responsibility in the development of the evidence, particularly when such evidence is of
the character normally obtained from the employing establishment.12 Once OWCP has begun
investigation of a claim, it must pursue the evidence as far as reasonably possible.13
The Board finds that the issues of appellant’s date of last exposure to hazardous noise and
whether his immediate supervisor had actual knowledge of his hearing loss within 30 days were
not fully developed by OWCP. Accordingly, the case will be remanded to OWCP to further
develop a date of last exposure to hazardous noise by asking appellant and the employing
establishment whether he continued to be exposed to such noise in his position after June 2004.
It should also secure a supplemental statement from Mr. Hultquist to clarify the issue of whether
he had actual knowledge of appellant’s hearing loss within 30 days of December 20, 2004 or the
date of last exposure to hazardous noise (if found to be later), in addition to any available
statements from appellant’s former supervisors regarding their knowledge at that time. After
such further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

12

See Robert C. Fay, 39 ECAB 163 (1987).

13

See Monroe Fears, 42 ECAB 608 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development of
the evidence consistent with this decision.
Issued: July 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICES, Decatur, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1114
Issued: January 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 15, 2010 appellant filed a timely appeal from a September 24, 2009 decision
of the Office of Workers’ Compensation Programs denying merit review. Because more than
one year elapsed since the most recent merit decision dated September 17, 2008 to the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008 a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
This case was previously before the Board.2 By decision dated May 17, 2006, the Board
vacated an October 5, 2005 Office decision which denied appellant’s reconsideration request on
the basis it was untimely filed and did not establish clear evidence of error. The Board found
that he had timely requested reconsideration and remanded the case to the Office to review the
evidence under the proper standard of review. The findings of fact and conclusions of law from
the prior decision are incorporated by reference.
In a July 19, 2006 decision, the Office denied modification of its prior decision finding
that the medical evidence was insufficient to establish that appellant’s claimed West Nile virus
was causally related to his employment duties. It found that, while he was frequently exposed to
work environments conducive to the presence of mosquitoes, the medical evidence failed to
provide a definitive opinion that his West Nile virus was due to a mosquito bite occurring while
at work.
In a July 15, 2007 letter, appellant requested reconsideration of the Office’s decision. He
submitted an undated document from Deb Landis with appellant’s comments attached; a July 15,
2007 statement; a July 16, 2007 statement from John Friedt, a coworker; Quick Facts about West
Nile Virus; HealthLine regarding West Nile Virus; a July 10, 2007 document from Alvin Graba;
a July 6, 2007 letter from Brad Kohlhagen of Purdue University; a July 11, 2007 medical report
from Ralph Hecht, a veterinarian; a July 16, 2007 document from Dr. H.S. Lee, a general
surgeon; a March 13, 2007 medical report from Dr. Jody M. Neer, a Board-certified neurologist,
and an undated statement of his employment history. Dr. Neer noted findings on examination
and he opined that appellant’s symptoms were clearly due to West Nile virus encephalitis that
was acquired through a work-related project.
By decision dated August 2, 2007, the Office denied modification of its previous decision
finding that the medical evidence on causal relationship was insufficient to establish the claim.
In a July 23, 2008 letter, appellant requested reconsideration. He stated that legal counsel
advised him that when a person worked in an area that was termed an epidemic area for a disease
and a person was diagnosed with that disease, causal relationship did not apply. In a July 30,
2008 report, Dr. Neer diagnosed cognitive impairment secondary to West Nile virus encephalitis,
hyperlipidemia and hypertension.
By decision dated September 17, 2008, the Office denied modification of its prior
decisions. It advised appellant that matters under the Federal Employees’ Compensation Act
causal relationship was a medical issue that required his physician to provide a well-rationalized
opinion on causal relationship. The Office further found that Dr. Neer’s July 30, 2008 report did
not provide any discussion on the cause of appellant’s condition.
In a September 8, 2009 letter, appellant requested reconsideration. He indicated that he
had been instructed by the Office to submit his questions in writing but had received any
response. Appellant explained that he submitted 117 pages and listed many questions, but they
2

57 ECAB 593 (2006).

2

were not answered. He stated that he was resubmitting statements from Dr. Hecht dated July 11,
2007 and Dr. Larry Smith dated July 16, 2007, which were on page 55 and 56 of his prior
submission, which supported the prevalence of the disease in the area he believed responsible for
his condition. He argued that legal counsel had advised him that, even though he could have
been bitten by a mosquito anywhere, it was different when exposed and working directly in an
area where the disease was prevalent and spreading. Appellant referenced the documentation
previously submitted by veterinarians and landowners to substantiate that the West Nile virus
was in the area where he worked.
In a September 1, 2009 report, Dr. Neer noted that he first examined appellant in 2006
and most recently in June 2009. Previous notes outlined appellant’s neurological history
regarding West Nile virus encephalitis and cognitive impairment. Dr. Neer stated “although I
was not there in 2002 when he contracted the infectious illness, I do strongly suspect he acquired
the infection on the job.”
By decision dated September 24, 2009, the Office denied appellant’s request for
reconsideration on the grounds the evidence submitted was insufficient to warrant further merit
review of his claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office 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.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
The Office denied appellant’s claim on the grounds that the medical evidence of record
was not sufficient to establish that the claimed medical condition was causally related to
appellant’s employment. Appellant’s reconsideration request did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by the Office. While appellant
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

3

noted that his questions were not addressed by the Office, he did not assert a point of law had
been erroneously applied or misinterpreted by the Office. He stated that he was advised by legal
counsel that while he may have been bitten by a mosquito at a different location, it was different
when he was exposed and working in an area where the disease was prevalent and spreading.
This argument, however, is not a new relevant legal argument as it was previously considered by
the Office in its September 17, 2008 decision.7 Consequently, appellant is not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by the Office. He referenced reports from Dr. Hecht and Dr. Smith dated July 16,
2007 and provided a copy of Dr. Hecht’s report. However, these reports were previously of
record and considered by the Office in its August 2, 2007 decision. As this evidence was
duplicative or cumulative in nature it was insufficient to warrant further merit review.8 These
medical reports did not require reopening the record for a merit review. In a September 1, 2009
report, Dr. Neer stated that he strongly suspected appellant acquired the West Nile virus infection
on the job. This report, while new, is cumulative as it addresses causal relationship in the same
manner as in the physician’s previously submitted March 13, 2007 report. Therefore, while
Dr. Neer’s September 1, 2009 report is new, it is repetitive of his March 13, 2007 report.9
Consequently, appellant is not entitled to a merit review based on the third criterion, noted
above.
Because appellant has not satisfied any of the above-mentioned criteria, the Board finds
that the Office properly determined that appellant was not entitled to a review of the merits of his
claim.
On appeal, appellant requests that his questions be addressed. He contended that he was
being treated unfairly as he had established the West Nile virus was prevalent in the area he
worked and the doctors supported his claim. As noted, the Board does not have jurisdiction over
the merits of this case. The issue is whether the Office properly denied appellant’s request for
merit review. For reasons stated, the Board finds that he is not entitled to further review of the
merits.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).

7

Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary value and does
not constitute a basis for reopening a case. C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008).
8

See id.; Denis M. Dupor, 51 ECAB 482 (2000).

9

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated September 24, 2009 is affirmed.
Issued: January 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________
Appearances:
Denise Eaton-May, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 18-1429
Issued: March 8, 2019

Case Submitted on the Record

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

On July 16, 2018 appellant, through counsel, filed a timely appeal from a January 31,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 18-1429.
On October 15, 2007 appellant, then a 40-year-old part-time flexible clerk, filed a
traumatic injury claim (Form CA-1) alleging that on October 1, 2007 she sustained a right hand
injury when she smashed her hand in a door. By decision dated November 5, 2007, OWCP
accepted the claim for contusion of the right ﬁnger. It subsequently expanded the claim to
include right wrist sprain, contusion of right wrist and hand, adhesive capsulitis of right shoulder,
right upper extremity juvenile osteochondrosis, sprain of right elbow and forearm, and right
ulnar collateral ligament.

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.

Appellant stopped work following the October 1, 2007 employment injury and received
wage-loss compensation benefits. OWCP placed her on the periodic rolls beginning
September 27, 2009.
On August 10, 2009 OWCP noted that appellant was referred for vocational
rehabilitation services and advised that the position of customer service representative was found
to be vocationally and medically suitable.
On February 4, 2013 OWCP proposed to reduce appellant’s compensation benefits based
on her capacity to earn wages of $400.00 per week as a customer service representative.2 It
found that her wage-loss compensation should be reduced because she was no longer totally
disabled and the position of customer service representative was medically and vocationally
suitable, and fairly and reasonably represented her wage-earning capacity. Appellant was
provided 30 days to submit evidence and argument challenging the proposed action. She did not
respond.
By decision dated March 7, 2013, OWCP finalized the reduction of appellant’s wage-loss
compensation, effective March 10, 2013.
The loss of wage-earning capacity (LWEC)
determination was based on the position of customer service representative with the ability to
earn $400.00 a week.
On March 13, 2013 appellant, through counsel, contested the March 7, 2013 decision and
requested an oral hearing before an OWCP hearing representative. A hearing was held on
July 18, 2013. Appellant submitted various medical reports from her treating physicians in
support of her claim for total disability.
Ultimately, by decision dated June 16, 2014, OWCP affirmed the March 7, 2013 LWEC
determination.
Following the denial of June 3, 2015 and August 29, 2016 reconsideration requests, on
November 21, 2017 appellant requested reconsideration of OWCP’s decision and submitted
additional medical evidence in support of her claim.
Accompanying the reconsideration request was a brief dated November 14, 2017 wherein
counsel argued that OWCP had not met its burden to reduce her compensation benefits as
appellant was totally disabled and unable to perform sedentary work. She further argued that the
medical evidence submitted demonstrated that appellant was entitled to modification of her
wage-earning capacity due to a material change and worsening of her medical condition such
that she was incapable of performing the duties of a customer service representative. New
medical reports dated from January 26 through November 8, 2017 were also submitted.
By decision dated January 31, 2018, OWCP denied appellant’s request for
reconsideration.

2

5 U.S.C. § 8115.

2

The Board, having duly considered the matter, concludes that the case is not in posture
for decision and must be remanded for further development.3
It is well established that a claimant may establish that a modification of a wage-earning
capacity is warranted if there is a material change in the nature and extent of an injury-related
condition, or a showing that the original determination was, in fact, erroneous.4 Although
appellant requested reconsideration and counsel used the term reconsideration in her
November 14, 2017 brief, counsel contended that OWCP committed error in its LWEC
determination because appellant was incapacitated at the time the determination was issued and
had requested a resumption of compensation for total wage loss.5 Counsel further argued that the
newly submitted medical reports established a material change and worsening of her medical
condition which warranted modification of the wage-earning capacity decision.
The Board finds that the November 21, 2016 request for reconsideration and
accompanying November 14, 2017 brief from counsel constituted a request for modification of
the March 7, 2013 LWEC determination. The Board has held that, when an LWEC
determination has been issued and appellant submits evidence with respect to one of the criteria
for modification, OWCP must evaluate the evidence to determine if modification of wageearning capacity is warranted.6
The Board accordingly remands the case to OWCP for proper adjudication, to be
followed by a de novo decision.7

3

N.M., Docket No. 17-0262 (issued July 3, 2017).

4

20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007).

5

Id.

6

See W.W., Docket No. 09-1934 (issued February 24, 2010).

7

W.R., Docket No. 16-0098 (issued May 26, 2016).

3

IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order.
Issued: March 8, 2019
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
NATIONAL INSTITUTES OF HEALTH,
BENEFITS & PAYROLL LIAISON BRANCH,
Bethesda, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1158
Issued: October 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2012 appellant filed a timely appeal from the March 30, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied
reconsideration of her schedule award. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit
decision. Since more than 180 days elapsed from the last merit decision of September 8, 2011 to
the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s January 20, 2012
reconsideration request under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2007 appellant, a 47-year-old grants technical assistant, sustained a
traumatic injury in the performance of duty when she fell down a flight of stairs. OWCP
accepted her claim for several medical conditions.2
Dr. Douglas C. Frankel, an internist specializing in emergency medicine, examined
appellant on December 22, 2010. He determined that she had a 22 percent impairment of her
lumbar spine, a 5 percent impairment of her thoracic spine, an 8 percent impairment of her
cervical spine, a 5 percent impairment to her sacrum, a 5 percent impairment to her left hand and
wrist, a 5 percent impairment to her right hand and wrist, an 8 percent3 impairment to the left
shoulder and a 5 percent impairment to the left hip “as related to the left lower extremity.”
Dr. Christopher R. Brigham, an OWCP medical adviser, Board-certified in occupational
medicine, reviewed Dr. Frankel’s findings. He determined that appellant had a 12 percent left
upper extremity impairment, a 1 percent right upper extremity impairment, a 1 percent right
lower extremity impairment and an 11 percent left lower extremity impairment.
On September 8, 2011 OWCP issued a schedule award for 12 percent left hand
impairment, 1 percent right leg impairment and 11 percent left leg impairment.
On January 20, 2012 appellant requested reconsideration.
She disagreed with
Dr. Brigham’s calculations and questioned how an independent evaluator could examine her and
provide ratings from 5 to 22 percent while Dr. Brigham, who did not examine her, revised the
ratings from 0 to 9 percent for the same body members. Appellant questioned the issue with
Dr. Brigham’s finding and indicated that she was submitting additional medical evidence to
support sensory and motor deficits of the spinal nerves, including evidence from Lester
Zuckerman, M.D., Joseph Y. Lin, M.D., Physical Therapist Pauline Ochoa, and Dr. Frankel. She
argued that supporting documentation from Dr. Frankel would further explain her impairment.
Appellant added that she continued to undergo regular epidural nerve root injections to reduce
referred pain as a result of radiculopathy.
Appellant submitted additional medical evidence. On September 19, 2011 Dr. Frankel
discussed Dr. Brigham’s report.
He observed that Dr. Brigham noted abnormal
objective/neurologic findings yet stated that there were no objective findings, ratable impairment
or motor deficits. Although Dr. Brigham clearly noted multiple diagnoses of neuritis or
radiculopathy and dysfunction of extremities directly related to the work injury, he disregarded
appellant’s medical records of direct examinations and personal histories correlating directly
with her continued daily pain and daily dysfunction.

2

Sprain of back, thoracic region; sprain of back, lumbar region; contusion of wrist and hand; contusion of knee
and lower leg, bilateral; Schmorl’s node, lumbar region; lumbago; myalgia and myositis not otherwise specified;
displacement of lumbar intervertebral disc without myelopathy; spasm of muscle; intervertebral disc disorder with
myelopathy, lumbar region; thoracic or lumbosacral neuritis or radiculitis not otherwise specified; sprain of sacrum;
sprain of shoulder and upper arm, unspecified site, left.
3

The report indicated 83 percent, a typographical error later corrected.

2

OWCP received additional medical reports and treatment notes from appellant’s
physicians and physical therapist including a January 6, 2012 nerve conduction study and needle
examination, findings from which most were consistent with an acute, ongoing bilateral L5 and
S1 nerve root irritation of mild to moderate severity.
In a March 30, 2012 decision, OWCP denied appellant’s reconsideration request. It
found that her letter did not raise and substantive legal questions or include new and relevant
evidence and was therefore insufficient to warrant further review of the merits. OWCP
acknowledged receipt of an appeal request form, but noted that the decision at issue was a
schedule award and appellant did not include any new impairment ratings.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.4 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.5
A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.6 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.7
ANALYSIS
Appellant submitted her January 20, 2012 reconsideration request within one year of
OWCP’s September 8, 2011 schedule award. Her request is therefore timely. The question for
determination is whether her request met at least one of the three standards for obtaining a merit
review of her case.
Appellant submitted the September 19, 2011 report of the attending internist, Dr. Frankel,
who discussed the impairment review performed by Dr. Brigham, an OWCP medical adviser
upon whose opinion OWCP based appellant’s schedule award. Dr. Frankel found fault with

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606.

6

Id. § 10.607(a).

7

Id. § 10.608.

3

Dr. Brigham’s review and explained why. His report thus constitutes relevant and pertinent new
evidence not previously considered by OWCP.
The Board finds that appellant has met one of the three standards for obtaining a merit
review of her case. The Board will set aside OWCP’s March 30, 2012 decision denying
appellant’s reconsideration request and will remand the case for further merit review. OWCP
should consider all the relevant medical evidence submitted since the September 8, 2011
schedule award decision and make appropriate findings.
CONCLUSION
The Board finds that OWCP abused its discretion in denying appellant’s January 20,
2012 reconsideration request. Appellant is entitled to a merit review of her case.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: October 9, 2012
Washington, DC

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

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

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

4


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

)
)
)
)
)
)
)
)

Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1000
Issued: March 25, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 21, 2021 appellant, through counsel, filed a timely appeal from an April 29, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of his oral argument request, appellant asserted that oral argument should be granted because it would provide
an opportunity to further explain his need for waiver of the overpayment. The Board, in exercising its discretion,
denies appellant’s request for oral argument because arguments on appeal can be adequately addressed in a decision
based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision
and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case
record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case. 4
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18,
2020 for which he was without fault because he concurrently received FECA wage -loss
compensation benefits and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly found that appellant abandoned his request for a prerecoupment
hearing.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 64-year-old maintenance mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder conditions
due to factors of his federal employment, including heavy lifting, and repetitive reaching and
pulling. He did not stop work. On May 10, 2019 OWCP accepted the claim for bilateral complete
rotator cuff tears or ruptures of the shoulders, calcific tendinitis of the right shoulder, and
impingement syndrome of the left shoulder.
On October 24, 2019 appellant filed a claim for compensation (Form CA-7) for disability
beginning October 28, 2019. He noted that he had applied for SSA age-related retirement benefits
at age 66 and received SSA benefits beginning on January 1, 2019 in the amount of $2,388.00 a
month. Appellant indicated that he was covered by the Federal Employees Retirement Sy stem
(FERS).
On October 28, 2019 appellant underwent a right shoulder arthroscopic rotator cuff repair,
biceps tenodesis, subacromial decompression, and extensive glenohumeral debridement.
On November 5, 2019 OWCP authorized wage-loss compensation on the supplemental
rolls effective October 28, 2019. It authorized wage-loss compensation on the periodic rolls
effective January 4, 2020.
On November 5, 2019 OWCP forwarded a FERS/SSA dual benefits calculation worksheet
to SSA. On February 19, 2020 the SSA provided OWCP with a February 14, 2020 FERS/SSA
dual benefit calculation form. The form indicated that appellant became entitled to retirement
benefits, effective November 2018, and that there were no federal earnings to offset.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the April 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

In a March 3, 2020 letter, OWCP informed SSA that it was aware that appellant was
entitled to retirement benefits effective November 2018. It further noted that he was receiving
SSA retirement benefits and that he was covered under FERS. OWCP requested additional
confirmation from SSA that there was no offset necessary.
On July 20, 2020 OWCP received a completed FERS/SSA dual benefit calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since November 2018. SSA reported that: beginning November 2018, appellant’s monthly SSA
rate with FERS was $2,285.90 and without FERS was $1,129.80; beginning December 2018,
appellant’s monthly SSA rate with FERS was $2,349.80 and without FERS was $1,161.40;
beginning January 2019, appellant’s monthly SSA rate with FERS was $2,355.00 and without
FERS was $1,161.40; and beginning December 2019, appellant’s monthly SSA rate with FERS
was $2,392.70 and without FERS was $1,179.90.
OWCP completed a FERS offset calculation f orm on August 12, 2020. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from October 28, 2019
through July 18, 2020. OWCP found that for the period October 28 through November 30, 2019,
the daily offset was $39.35 or $1,337.88 for 34 days, and for the period December 1, 2019 through
July 18, 2020, the daily offset was $39.98, or $9,235.94 for 231 days. It added the amounts for
each period and determined that it should have offset a total of $ 10,573.81 from his wage-loss
compensation.
In an August 12, 2020 letter, OWCP informed appellant that it would begin deducting
$1,119.51, the portion of SSA age-related retirement benefits attributable to his federal service,
from his periodic compensation benefits.
On August 13, 2020 OWCP notified appellant of its preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $10,573.82
because it had failed to reduce his wage-loss compensation benefits for the period October 28,
2019 through July 18, 2020 by the portion of his SSA age-related retirement benefits that were
attributable to federal service. It further advised him of its preliminary determination that he was
without fault in the creation of the overpayment. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally,
it notified him that, within 30 days of the date of the letter, he could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing. 5
On September 11, 2020 appellant requested a prerecoupment hearing and completed an
overpayment action request form requesting waiver of recovery of the overpayment. He advised
that he had used the compensation on necessary expenditures that he would otherwise not have
been able to afford and could not repay the overpayment without financial hardship. On the Form
OWCP-20 appellant listed total monthly income of $7,497.00 and total monthly expenses of
$6,444.00. He listed real estate assets of $80,000.00 and $90,000.00, with mortgage balances of
$48,700.00 and $53,700.00, respectively, as well as a vacant lot worth $3,000.00. Appellant listed

5

By decision dated September 14, 2020, OWCP affirmed the August 13, 2020 preliminary overpayment findings.
On January 25, 2021 OWCP vacated a September 14, 2020 decision finalizing the preliminary overpayment
determination.

3

other assets totaling $5,200.00 including $500.00 in cash, $1,200.00 in checking, $500.00 in
savings, and stocks and bonds worth $3,000.00.
On March 5, 2021 OWCP’s hearing representative informed appellant of the time and
location of his prerecoupment hearing scheduled for April 15, 2021 at 2:45 p.m. Eastern Standard
Time (EST) regarding OWCP’s August 13, 2020 preliminary finding of the overpayment. It
mailed the notice to appellant’s last known address of record and provided instructions on how to
participate. Appellant did not appear at the hearing or request postponement of the hearing.
By decision dated April 29, 2021, OWCP’s hearing representative, after conducting a
review of the written record, found that appellant failed to attend the scheduled hearing and failed
to request postponement of the hearing. She, therefore, determined that appellant had abandoned
his hearing request. OWCP’s hearing representative further finalized the preliminary overpayment
determination, finding that appellant had received a $10,573.82 overpayment of compensation
from October 28, 2019 through July 18, 2020 because he had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. She
also found that appellant was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment as appellant’s monthly income of $7,497.00 exceeded his monthly
expenses of $6,444.14 by more than $50.00 and as he had assets of approximately $75,000.00
exceeding the base of $10,300.00 for an individual with a spouse. OWCP’s hearing representative
explained that, because he failed to meet both prongs of a two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it was not necessary to consider waiver of
recovery on this basis. She further found appellant had not submitted evidence that he made any
financial decision that changed his position for the worse as a result of the receipt of the overpaid
benefits and, therefore, had not established that recovery of the debt would be against equity and
good conscience.
LEGAL PRECEDENT -- ISSUE 1
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 or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

4

benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 2020
for which he was without fault, because he concurrently received FECA wage -loss compensation
benefits and SSA age-related retirement benefits without appropriate offset.
Appellant began receiving SSA age-related retirement benefits in November 2018. OWCP
paid appellant wage-loss compensation for total disability following his accepted employment
injury beginning October 28, 2019. As noted, a claimant cannot receive FECA compensation for
wage-loss and SSA age-related retirement benefits attributable to federal service for the same
period.10 Accordingly, the Board finds that fact of overpayment has been established.11
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods from October 28, 2019 through July 18, 2020. OWCP set forth its calculations of
the amount that should have been offset during the relevant period based on informa tion provided
by SSA for the period October 28, 2019 through July 18, 2020.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period October 28, 2019 through July 18, 2020 and finds that an overpayment of compensation in
the amount of $10,573.82 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 13 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of th e overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 14

9

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

10

Supra note 8. See J.T., Docket No. 21-0010 (issued September 30, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).
11

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

Supra note 3.

14

J.T., supra note 10; G.L., Docket No. 19-0297 (issued October 23, 2019).

5

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs sub stantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of appellant’s financial documents of record, he had total current monthly income of $7,497.00
and total monthly expenses of $6,444.14, which left more than $1,052.00 of disposable income
with which to repay the debt. As appellant’s monthly income exceeds his ordinary and necessary
living expenses by more than $50.00, the Board finds that he did not need substantially all of his
income for ordinary and necessary living expenses.
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 17
LEGAL PRECEDENT -- ISSUE 3
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative. 18 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
15

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) and (3) (September 2018).
16

Id. at § 10.436.

17

Supra note 15. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits. A.S., Docket No. 20-1314 (issued February 23,
2021); L.L., Docket No. 19-0097 (issued March 20, 2020); A.B., Docket No. 18-0915 (issued October 24, 2018). As
appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s final overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See
id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
18

Supra note 3 at § 8124(b).

6

hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.19
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances. 20 With respect to abandonment of hearing requests,
Chapter 2.1601(g) of OWCP’s procedures21 and section 10.622(f) of its regulations 22 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. Under
these circumstances, the Branch of Hearings and Review will issue a formal decision finding that
the claimant has abandoned his or her request for a hearing and return the case to the district
office.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s September 11, 2020 request
for a telephonic prerecoupment hearing. In a March 5, 2021 letter, OWCP provided appellant 30
days written notice of the hearing, which was scheduled for April 15, 2021 at 2:45 p.m. EST. It
mailed the March 5, 2021 notice of hearing to appellant’s last known address of record, and it was
not returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary
course of business is presumed to have been received by the intended recipie nt.24 The presumption
is commonly referred to as the “mailbox rule.”25 It arises when the record reflects that the notice
was properly addressed and duly mailed. 26 The current record is devoid of evidence to rebut the
presumption that appellant received OWCP’s March 5, 2021 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address of record.27
Appellant did not call-in as instructed for the April 15, 2021 scheduled telephonic hearing and

19

Supra note 8 at § 10.617(b).

20

R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Claudia J. Whitten, 52 ECAB 483 (2001).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
22

Supra note 9 at § 10.622(f).

23

Id.

24

C.Y., supra note 20; Kenneth E. Harris, 54 ECAB 502 (2003).

25

Id.

26

Id.

27

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

7

there is no indication that he requested postponement of the telephonic hearing. 28 Moreover, he
did not submit a written request within the 10 days after the date set for the telephonic hearing and
request that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing
representative properly found that appellant abandoned his telephonic hearing request. 29
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$10,573.82 for the period October 28, 2019 through July 18, 2020 for which he was without fault,
because he concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits without appropriate offset. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and that OWCP properly determined that appellant
abandoned his request for a prerecoupment hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

28

20 C.F.R. § 10.622(c).

29

C.Y., supra note 20; M.V., Docket No. 17-1795 (issued March 1, 2018).

8