United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 15-0144
Issued: July 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2014 appellant filed a timely appeal from a September 25, 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 merits of the overpayment issues.
ISSUES
The issues are: (1) whether appellant received a $7,657.10 overpayment of compensation
for the period January 9, 2009 through May 31, 2013, for which she was not at fault; (2) whether
the overpayment is subject to waiver of recovery; and (3) whether OWCP properly withheld
$300.00 per month from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 7, 2004 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that a box fell on her left temple while in the performance of her
federal duties. Appellant visited a hospital emergency department that day where she was
treated for a superficial head injury. OWCP accepted the claim for contusions of the head and
left shoulder and a concussion without loss of consciousness. On November 7, 2004 appellant
was released to limited duty. As the employing establishment did not have any limited duty
available, appellant has not returned to work. She has been paid wage-loss compensation
benefits.
On September 18, 2013 appellant advised OWCP that she discovered a mistake in the
mileage she had claimed for travel to and from her doctor during the period January 9, 2009
through May 31, 2013. While she had claimed 35 miles each way for a total of 70 miles, she
asserted the mileage should have been 30.5 miles going to the doctor and 35.5 miles for the
return trip home, for a total of 66 miles. Appellant stated she would like to pay back any monies
owed, if any. In an October 24, 2013 letter, OWCP advised appellant they would review her
case to determine if there was an overpayment of travel mileage reimbursement.
On January 28, 2014 appellant forwarded a check for $100.00 to start repayment of any
potential overpayment.
By letter dated March 25, 2014, OWCP issued a preliminary determination that appellant
was at fault in the creation of a $7,657.10 overpayment of compensation for the period
January 6, 2009 through May 31, 2013. OWCP indicated that on March 21, 2013, the
Department of Labor’s Office of Inspector General related that appellant had submitted a large
number of mileage reimbursement claims to OWCP for travel relating to seeing Dr. William
Larkin, a Board-certified surgeon. Since 2009, appellant submitted 252 OWCP-957 forms
claiming 70 miles round trip from her residence in Red Oak, TX to Dr. Larkin’s office in Dallas,
TX, for a total of $26,806.65 in mileage reimbursement. OWCP found, however, that appellant
was entitled to reimbursement only in the amount of $19,149.55 and, thus, was overpaid
$7,657.10. It advised that its investigation verified appellant was traveling to Dr. Larkin’s office
for medical appointments. However, appellant had inflated her mileage reimbursements on each
trip by 20 miles. Using Google maps and odometer readings from the shortest route, the agents
verified the mileage from appellant’s home to her doctor’s office was actually 50 miles round
trip, not the 70 miles she had claimed and for which she had been reimbursed.
OWCP made a preliminary finding that appellant was with fault in the creation of the
overpayment as she was aware or should have been reasonably been aware that she was
overstating the mileage claimed on the reimbursement forms. Appellant was advised that she
could request a telephone conference, a final decision based on the written evidence, or a hearing
if she disagreed that the overpayment occurred, with the amount of the overpayment, or if she
believed that recovery of the overpayment should be waived. OWCP requested that appellant
complete an accompanying overpayment recovery questionnaire (Form OWCP-20) and submit
financial documents in support thereof within 30 days.

2

In attached spreadsheets, OWCP calculated the overpayment for the period January 6,
2009 through May 31, 2013. The spreadsheets noted appellant’s mileage reimbursements from
January 6, 2009 to May 31, 2013, listed the transaction control billing number from Affiliated
Computer Systems for each of the 252 OWCP 957 travel reimbursement claims for a total of 731
trips, the dates claimed for 731 trips, as well as the reimbursement amounts for years 2009
through 2013.2 Calculations were also provided for the reimbursement total that should have
been received for the actual mileage of 50 miles roundtrip. For the period January 6, 2009 to
May 31, 2013, OWCP found that appellant had received a total of $26,806.65 at 70 miles
roundtrip claimed but was only was entitled to reimbursement for 50 miles for a total of
$19,149.55, which resulted in an overpayment in the amount of $7,657.10.
In an April 8, 2014 response, appellant requested a prerecoupment hearing. She
disagreed with the amount of the overpayment as she felt she was denied due process because
she was never asked what route she drove. Appellant included a handwritten outline of the route
driven to the physician’s office, which included street names, but did not list mileage. She stated
that the IG Agent drove a route that was shown on Google Maps, which was approximately 26.5
miles, and that he had rounded it up to 30 miles. Appellant indicated that Commonwealth and
Inwood roads were congested and she did not use them.3 She stated she did not like to drive
freeways as they made her nervous and, if at all possible, she would take another route, even if it
was longer. She stated that when she first started going to the doctor, OWCP told her that she
did not have to drive the freeways and could take another route. However, since the interviews
with the Special Agent and the Postal Inspector, she now drove the most direct route, including
freeways. She stated that she took medication to calm her nerves while driving freeways. She
stated that if OWCP used the mileage the IG Agent used, rounded to 30 miles, it would reduce
the overpayment amount by half and she would settle for that amount, $3,828.55, in a one-time
payment.
On June 20, 2014 appellant partially completed a Form OWCP-20, Overpayment
Recovery Questionnaire. She alleged that OWCP had not used the route she drove to figure the
amount that may be owed. Appellant related that in November 2004 she was told that she did
not have to drive the freeway and she still had not been told that she had to drive freeways. She
listed $4,690.00 in monthly income. Appellant did not complete the section of the form that
asked her to list her FECA income.4
At the July 10, 2014 hearing appellant disagreed with the amount of overpayment. Her
representative at the time stated that appellant was told by a U.S. Postal liaison for OWCP, Tara
Johnson, that appellant could drive any route. The representative stated appellant did not think it
fair that she now had to drive the most direct route as she was never told that in the beginning.
2

From January 6, 2009 to December 29, 2009, appellant was reimbursed at .55 cents a mile; from January 4,
2010 to December 17, 2010, she was reimbursed at .50 cents a mile; from January 7, 2011 to April 13, 2012,
appellant’s travel mileage was reimbursed at .51 cents a mile, and from April 19, 2012 to May 31, 2013, she was
reimbursed at .55 cents a mile.
3

Inwood Road was listed on appellant’s handwritten outline of the route driven to and from the physician’s office
to her home.
4

According to the record, at that time she was receiving net compensation every 28 days of $3061.16.

3

The representative contended that the mileage should be mitigated as, while there was no doubt
some type of overpayment occurred, there was no intent to defraud OWCP by inflating the
mileage. Regarding the issue of using the Hampton Road route that Google maps suggested,
which avoided freeways and took 25.6 miles from appellant’s home to Dr. Larkin’s office,
appellant testified that both Hampton Road and the freeway were bad alternatives as there often
were wrecks and congestion on those roads. Appellant testified that there was no medical reason
that she was unable to drive freeways, just that she felt it was nerve racking. Appellant initially
testified that she did not know whether she had an asset base over $8,000.00. However her
husband testified and confirmed that they had assets equal to or in excess of the $8,000 resource
base. Appellant was advised at the hearing of the type of financial documentation needed to
establish hardship to repay the overpayment.
In an August 14, 2014 response to the hearing transcript, an employing establishment
manager stated that appellant had stopped working in 2004. He contended that appellant should
have been aware she was overstating her mileage by 20 miles each trip and that she should
reimburse the funds owed. The employing establishment manager referenced the August 14,
2014 email from an employing establishment official, Ms. Johnson, worked in injury
compensation from 2008 to 2011, but he stated that she did not have the authority to authorize
appellant to drive a route of her choice to her doctor, and Ms. Johnson did not speak to appellant
at any time about her mileage for her OWCP claim. He further stated the employing
establishment was not in agreement with appellant’s suggestion to pay a reduced amount, that
she did not fully complete the Overpayment Recovery Questionnaire, and that she was less than
truthful in declaring her income and assets.
In an August 22, 2014 letter, appellant objected to the employing establishment statement
that she was less than truthful. She indicated that she did complete the Overpayment Recovery
Questionnaire and her only income was what she received from OWCP. Appellant stated that
the employing establishment had no personal knowledge of her case.
By decision dated September 25, 2014, an OWCP hearing representative found that
appellant was without fault in creating the overpayment. He noted that while OWCP’s
procedure manual noted that travel to a physician’s office was to be by the most direct route for
expense reimbursement, appellant had not been advised of such requirement. The hearing
representative noted, however, that appellant’s husband’s testimony that their asset base
exceeded $8,000 precluded waiver.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.5

5

5 U.S.C. § 8103.

4

With respect to travel expenses for medical treatment, the regulations provide:
“(a) The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what a reasonable distance to travel is,
OWCP will consider the availability of services, the employee’s condition and the
means of transportation. Generally, a round[-]trip distance of up to 100 miles is
considered a reasonable distance to travel.6 Travel should be undertaken by the
shortest route, and if practical, by public conveyance. If the medical evidence
shows that the employee is unable to use these means of transportation, OWCP
may authorize travel by taxi or special conveyance.”7
In interpreting this section, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. The only limitation on OWCP’s authority is that of
reasonableness.8 OWCP may authorize medical treatment but determine that the travel expense
incurred for such authorized treatment was unnecessary or unreasonable.9
ANALYSIS -- ISSUE 1
In this case, appellant admitted she mistakenly claimed and was reimbursed for 70 miles
roundtrip travel to Dr. Larkin during the period January 6, 2009 through May 31, 2013. She
does not dispute that an overpayment occurred, but disputes the amount of the overpayment.
OWCP noted that during the period in question appellant filed 252 travel vouchers for which she
was reimbursed a total of $26,806.65 as the trip to Dr. Larkin was 70 miles roundtrip travel, but
was only entitled to reimbursement in the amount of $19,149.55 as the trip to Dr. Larkin was in
fact no more than 50 miles roundtrip. Thus she was overpaid $7,657.10. OWCP advised its
investigation verified that appellant was traveling to Dr. Larkin’s office for medical
appointments. However, she had inflated the mileage on the 252 travel vouchers by 20 miles for
each trip. Using Google maps and odometer readings, IG agents verified the mileage from
appellant’s home to her doctor’s office was at the most 50 miles.
The hearing representative noted that the route one-way from appellant’s home to
Dr. Larkin’s office via interstate highway 35 was 23.98 miles per MapQuest and 24.6 miles per
Google maps. An alternative one-way direct route, which did not use any highways, from
appellant’s home to Dr. Larkin’s office was via Hampton Road and was 25.6 miles.10 The
6

Effective August 29, 2011, the regulations changed and a round-trip of up to 100 miles is considered reasonable.
See FECA Bulletin No. 14-02-03 (issued January 29, 2014).
7

20 C.F.R. § 10.315(a).

8

A.O., Docket No. 08-580 (issued January 28, 2009); see also Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP
has broad discretionary authority in the administration of FECA and must exercise that discretion to achieve the
objectives of section 8103).
9

W.M., 59 ECAB 132 (2007); Mira R. Adams, 48 ECAB 504 (1997).

10

The Board notes that these different routes average 24.73 miles, which rounds to 25.00 miles one-way from
appellant’s home to Dr. Larkin’s office or 50 miles roundtrip.

5

hearing representative noted, and the record supports, there is no medical evidence of record
from a physician which supports appellant is unable to drive freeways. Appellant testified that
the Hampton Road route was congested and always had wrecks, but provided no documentation
to support her assertion.
Appellant asserted the mileage should have been 30.5 miles going to the doctor and 35.5
miles for the return trip home, for a total of 66 miles. While appellant provided a copy of the
map for the route she took, supporting documentation for the mileage was not provided.
Additionally, there is no indication that appellant’s preferred route was the most direct or
shortest route.
As noted above, OWCP has discretion to authorize reimbursement for travel expenses
related to medical treatment. The evidence is sufficient to establish that an overpayment
occurred, as appellant submitted inflated travel reimbursement on 252 travel vouchers. The
evidence is also sufficient to establish that the roundtrip distance from appellant’s home to
Dr. Larkin’s office using the shortest, most direct route from her residence to Dr. Larkin’s office
was no more than 50 miles. As such, OWCP properly found appellant was overpaid $7,657.10
during the period January 6, 2009 through May 31, 2013 as she was reimbursed a total of
$26,806.65 during the stated period for 70 miles roundtrip travel, but was only entitled to
reimbursement in the amount of $19,149.55 for 50 miles roundtrip travel.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.11 The only exception to this requirement that an
overpayment must be recovered is set forth 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 FECA or would be against equity and good conscience.
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations12 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery
needs substantially all of his or her current income, including compensation benefits, to meet

11

5 U.S.C. § 8129(a).

12

20 C.F.R. § 10.436.

6

current ordinary and necessary living expenses;13 and (b) the beneficiary’s assets do not exceed
the resource base as determined by OWCP from data provided by the Bureau of Labor
Statistics.14
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.15 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.16
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.17
ANALYSIS -- ISSUE 2
OWCP found that appellant was without fault in creating the overpayment of
compensation because she had not been informed that she would only be reimbursed for travel
via the shortest route for her medical appointments. It then considered whether she was entitled
to waiver of recovery of the overpayment. Waiver is only possible if recovery would defeat the
purpose of FECA or would be against equity and good conscience. In order to establish that
repayment of the overpayment would defeat the purpose of FECA, appellant must show that she
requires substantially all of her income to meet current ordinary and necessary living expenses
and that her assets do not exceed the established limit as determined by OWCP’s procedures.18
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA as OWCP properly found that appellant did not meet the second prong of this test. Her
$8,000.00 in assets, as testified by her husband, exceeded the allowable resource base. The asset
base is determined from established sources as outlined in OWCP procedures. Liquid assets
include such sources as cash, the value of stocks, bonds, savings accounts, mutual funds and
13

An individual is deemed to need substantially all of his or her current income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than $50.00. In other
words, the amount of monthly funds available for debt repayment is the difference between current income and
adjusted living expenses (i.e., ordinary and necessary living expenses plus $50.00) Federal (FECA) Procedure
Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6 (a) (June 2009). See also C.J.,
Docket No. 14-644 (June 10, 2014).
14

Id. OWCP’s procedures provide that assets must not exceed a resource base of $4,800 for an individual with a
spouse.
15

20 C.F.R. § 10.437(b).

16

Federal (FECA) Procedure Manual, supra note 13 at Chapter 6.200.6.b(3) (October 2004).

17

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

18

20 C.F.R. § 10.436.

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certificates of deposit. Nonliquid assets include the fair market value of an owner’s equity in
property such as a camper, boat, second home, and furnishings/supplies, vehicles, jewelry and
artwork.19 While the testimony elicited at the hearing, other than appellant’s husband’s
admission, was vague in nature regarding the couple’s asset base, the Board notes that the
evidence of record does indicate that appellant and her husband own two properties, have a
savings account, and an undocumented JPMorgan account, from which funds are transferred to
savings.
Because appellant has not met the second prong of the two-prong test for whether
recovery of the overpayment would defeat the purpose of FECA, it is not necessary for OWCP to
consider the first prong of the test, i.e., whether appellant needs substantially all of her current
income to meet ordinary and necessary living expenses.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown that she would experience severe
financial hardship in attempting to repay the debt or that she relinquished a valuable right or
changed her position for the worse in reliance on the payment which created the overpayment.20
The Board notes in this regard that in reporting her income and expenses, appellant did not
provide specific information regarding her FECA benefits for consideration of financial
hardship.
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his or her attention is called to same. If no
refund is made, [OWCP] shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.”21
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the claimant’s financial circumstances in order to set a
repayment schedule. Compromise of the principal of the overpayment can be considered if
19

Supra note 12.

20

See 20 C.F.R. § 10.437; William J. Murphy, 41 ECAB 569, 571-72 (1989).

21

20 C.F.R. § 10.441.

8

application of the interest charges would extend the period of repayment more than 35 percent.
Such a determination is made at the time the repayment schedule is established.22 Compromise
is a matter which rests in the discretion of OWCP.23
ANALYSIS -- ISSUE 3
In this case, OWCP determined that appellant was without fault in the creation of the
overpayment. The hearing representative denied compromise of the debt and set recovery at
$300.00 from appellant’s continuing compensation.
Charges can be waived if appellant is without fault in the creation of the overpayment
and the application of charges will extend the period of indebtedness beyond the debtor’s life
expectancy. In setting the rate of recovery from appellant’s continuing compensation, OWCP’s
hearing representative considered the fact that recovery of the principal balance of $7,657.10
with interest would take appellant 25.81 months to repay, which was less than appellant’s life
expectancy of 296.4 months. Therefore, charges could not be waived. As previously noted
compromise is a matter which rests in the discretion of OWCP, and a compromise order is not
subject to review by the Board.24
The record reflects that OWCP exercised its discretion in not compromising the
outstanding balance of the overpayment and in setting the rate of recovery from appellant’s
continuing compensation. In doing so, it considered the factors provided under section 10.441,
such as appellant’s age, life expectancy, the rate of compensation paid and the period in which
recovery could be obtained with reference to her financial circumstances. There is no evidence
of record to establish that OWCP abused its discretion is setting the rate of recovery of $300.00 a
payment cycle from appellant’s continuing compensation so as to minimize financial hardship.
On appeal appellant argues that she was without fault in creating the overpayment and
she was never informed that she had to drive the most direct route. A finding that appellant was
without fault does not automatically result in waiver of the overpayment. OWCP must then
exercise its discretion to determine whether recovery of the overpayment would defeat the
purpose of FECA or would be against equity and good conscience.25 As discussed, recovery of
the overpayment would not defeat the purpose of FECA or would be against equity and good
conscience.

22

See Federal (FECA) Procedure Manual, supra note 13 at Chapter 6.300.5 (May 2004). See Jorge E. Diaz, 53
ECAB 403 (2002).
23

D.C., Docket No. 10-1046 (issued January 19, 2011); Linda D. Lane, 46 ECAB 727 (1995).

24

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.300.6(d) (May 2004).
25

L.S., 59 ECAB 350 (2008).

9

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,657.10 for the period January 6, 2009 through
May 31, 2013. OWCP also properly determined that appellant was not entitled to waiver of
recovery of the overpayment, and that recovery should be made by withholding $300.00 per
month from her continuing compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.26
Issued: July 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

26

James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the
Board effective November 16, 2015.

10


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

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

Docket No. 07-749
Issued: July 10, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant filed a timely appeal from a January 4, 2007 merit
decision of the Office of Workers’ Compensation Programs that denied her traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On September 27, 2006 appellant, then a 35-year-old mail carrier, filed a traumatic injury
claim alleging that she sustained lower back pain while lifting a tray from the rear of a truck on
September 21, 2006. She stopped work on September 22, 2006 and returned to part-time limited
duty on November 1, 2006.

Appellant submitted a September 27, 2006 report from Dr. Mitchell K. Freedman, an
osteopath, who diagnosed “exacerbation of lumbar radiculopathy” but did not comment on
causation or the circumstances under which appellant’s condition arose. In an October 25, 2006
duty status report, Dr. Freedman noted appellant’s work restrictions. He also provided an
October 25, 2006 report diagnosing lumbar radiculopathy.
On November 28, 2006 the Office advised appellant of the factual and medical evidence
needed to establish her claim. The Office advised her to submit medical evidence addressing
how her claimed condition was due to her claimed employment activity. In a November 30,
2006 statement, appellant explained that she was rotating trays of mail in a truck and that one
tray “began to bend in middle, tried to catch it, between 30-40 lbs.” She claimed that after she
caught the tray of mail she experienced back pain. Appellant related her back pain to
aggravation of “an old injury.”
In an October 25, 2006 narrative report, Dr. Freedman noted that appellant reported achy
and sharp back pain. He conducted a physical examination and noted that a magnetic resonance
imaging (MRI) scan from June 2006 revealed disc degeneration at L5-S1 and a left-sided
paracentral disc herniation at L4-5. Dr. Freedman explained that appellant had previously had
two lumbar surgeries and “now has a lumbar radiculopathy on the left more than the right.” He
also stated that appellant had reached maximum medical improvement.
By decision dated January 4, 2007, the Office denied appellant’s traumatic injury claim
on the grounds that she submitted insufficient medical evidence to establish that she sustained a
work-related injury.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.3
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
1

The Office also noted that appellant had a lumbosacral strain on July 28, 2003, which was accepted under case
file number 032014949. The other claim is not before the Board on the present appeal.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant8 and must be one of reasonable medical certainty9 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an injury in the performance of duty. The Office found that an employment incident
occurred on September 21, 2006, when appellant tried to catch a tray of mail. Appellant
submitted medical evidence from Dr. Freedman, who diagnosed aggravation of lumbar
radiculopathy. However, the Board finds that the medical evidence does not establish a causal
relationship between appellant’s diagnosed condition and the accepted employment condition.
In a September 27, 2006 form report, Dr. Freedman diagnosed exacerbation of lumbar
radiculopathy but did not address the circumstances of the September 21, 2006 incident or relate
the diagnosed condition to an incident at work. His October 25, 2006 report did not discuss
causation. Dr. Freedman’s October 25, 2006 duty status report noted work restrictions but did
not address causal relationship. On October 25, 2006 he noted that appellant had a history of
two prior lumbar spine surgeries and indicated that an MRI scan obtained prior to the
September 21, 2006 incident revealed disc degeneration and herniation of the lumbar spine.
Dr. Freedman noted a current diagnosis of lumbar radiculopathy. He did not address the
September 21, 2006 employment incident or otherwise discuss how any diagnosed condition was
caused or aggravated by such employment incident. Consequently, Dr. Freedman’s reports are
of limited probative value in establishing appellant’s claim.11

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

See, e.g., Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

3

Accordingly, the Board finds that the medical evidence is insufficient to establish that
appellant’s diagnosed lumbar radiculopathy was caused or aggravated by her lifting mail trays on
September 21, 2006.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES MEDICAL CENTER,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 12-1569
Issued: February 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2012 appellant, through her counsel, filed a timely appeal from a June 6,
2012 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 established that she sustained candidiasis pneumonia
causally related to her employment.
FACTUAL HISTORY
On April 15, 2010 appellant, then a 60-year-old nurse, filed an occupational disease claim
alleging that her candidiasis pneumonia was contracted as a result of her work. She related that
1

5 U.S.C. § 8101 et seq.

her condition was a hospital-acquired infection according to her physician and that there was no
other way of contracting this condition. Appellant stated that she first became aware of the
condition on April 2, 2010, but did not realize that it was employment related until April 9, 2010.
She stopped work on April 2, 2010 and has not returned.2
By letter dated April 30, 2010, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised as to the medical and factual evidence
required to support her claim and given 30 days to provide the requested information.
OWCP thereafter received a copy of appellant’s position description and an April 15,
2010 incident report. In the incident report, appellant stated that on April 2, 2010 she was
exposed to a candidiasis by a patient’s cough in the women’s clinic where she worked and it had
been reported to her supervisor. Under description of the incident she noted “Candidiasis -Pneumonia. In hospital for 10 days.” Nydia Maymi completed an employing establishment
incident report in which appellant stated having no knowledge of whether the illness was
acquired at work. Ms. Maymi related that appellant indicated “that she thinks she may have
gotten the pneumonia here because patients cough and sneeze in the room with her” and that she
could not identify a specific patient as contributing to her condition.
In a May 21, 2010 statement, appellant related being hospitalized for moderate
respiratory distress from May 8 to 9, 2010. In response to OWCP’s questions, she indicated that
she had previously been treated for bacterial pneumonia on February 20, 2007 but had never
been treated for candidiasis pneumonia. With respect to the exposure question, appellant noted
her work hours and schedule and that she had been assigned to the Woman’s Clinic for the past
five years. She related that her symptoms began on April 3, 2010, but she was not diagnosed
with candidiasis until April 9, 2010.
Subsequent to OWCP’s receipt of appellant’s statement, appellant submitted medical and
diagnostic reports regarding her hospitalization for respiratory problems which diagnosed
candidiasis pneumonia.
On June 24, 2010 OWCP referred appellant for a second opinion evaluation with
Dr. Leonard Y. Cosmo, for an assessment of her condition. In an August 11, 2010 report,
Dr. Cosmo, based upon a review of the medical evidence, statement of accepted facts and
physical examination diagnosed community-acquired pneumonia. He explained that the
condition of candiadiasis pneumonia is not associated with occupational exposures and that
occupational exposures are suggestive of a sick-building related disease. Dr. Cosmo related that
the Candida fungus is not caused by inhalation from a work setting, but is typically found in
patients who have an underlying immunosuppressed condition or received significant amounts of
steroids or antibiotics. Next, he stated that the Candida fungus “results from exogenous flora
that can multiply under certain conditions” and cannot be inhaled during a work-related setting.
By decision dated October 12, 2010, OWCP denied appellant’s claim on the ground that
her diagnosed condition was not employment related.
2

Appellant was separated from her employment due to her inability to perform her work duties effective
March 22, 2011.

2

In a letter dated November 2, 2010, appellant’s counsel requested a telephonic hearing.
By decision dated February 15, 2011, an OWCP hearing representative found that the
case was not in posture for a decision as appellant had not established a prima facie claim at the
time OWCP undertook further medical development. She found that appellant had not
established the factual portion of her claim as it was unclear from the record what exposure had
been accepted as factual and compensable by OWCP. Thus, the hearing representative
remanded the case to OWCP for further development of the factual and medical evidence was
required.
In a March 7, 2011 letter, OWCP informed appellant that the medical and factual
evidence of record was insufficient to her claim. Appellant was advised to submit medical and
factual evidence including a statement identifying the employment factors that she believed
caused or contributed to her condition and a medical opinion attributing her condition to the
employment factors identified by her.
In response OWCP received a February 16, 2011 report from Dr. David A. Wasserman, a
physician specializing in emergency medicine. Dr. Wasserman reviewed Dr. Cosmo’s report
and the medical evidence. He noted his disagreement with Dr. Cosmo’s conclusions and noted
flaws made by Dr. Cosmo in his report. Dr. Wasserman stated that prior to appellant being
diagnosed with candidiasis pneumonia she had recalled seeing a patient at the employing
establishment who had been treated for this condition and that she worked in a hospital with the
infirm. He stated that nowhere else could appellant’s exposure have occurred in view of her
working in a hospital and caring for ill patients during her workday.
By decision dated August 8, 2011, OWCP denied appellant’s claim on the grounds that
fact of injury had not been established. Specifically, it found that she failed to submit any factual
evidence regarding her exposure to any causative agent at work. The only employment factor
identified by appellant was that she was exposed to sick patients in the perfomance of her work
duties.
Following the August 8, 2011 decision, appellant submitted an August 14, 2011
statement from appellant. She related that her former assigned work area had been remodeled
due to an infestation of mold/fungus and she enclosed e-mail documentation regarding the
overhaul of the woman’s clinic waiting room due to a fungus infestation.
OWCP also received a January 20, 2012 report from Dr. Kevin L. Trangle, a Boardcertified internist and occupational medicine physician, who reviewed appellant’s medical
record, occupational history, medical history and history of her illness. Dr. Trangle noted that
appellant filed a claim alleging that she developed a hospital acquired infection as the result of
her work duties. He opined while “[t]he precise source and ultimate cause of her pneumonia
cannot be determined within a reasonable degree of medical certainty,” he opined that she
developed candidiasis pneumonia on a more likely than not basis due to exposure to an
infectious agent at her work. Dr. Trangle related that there had been an increase in the incidents
of infections and occupationally acquired pneumonia in hospital work and, therefore, appellant’s
condition was employment related.

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On March 6, 2012 appellant’s counsel requested reconsideration and submitted a
February 8, 2012 statement from appellant disputing the April 15, 2010 incident report by
Ms. Maymi.
By decision dated June 6, 2012, OWCP denied appellant’s request for modification as
she failed to provide a detailed statement identifying the specific work conditions or employment
factors she believed caused her condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
OWCP regulations define the term occupational disease or illness as a condition
produced by the work environment over a period longer than a single workday or shift.6 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) medical evidence establishing the presence or existence of
the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.7
If a claimant does establish an employment factor, she must submit medical evidence
showing that a medical condition was caused by such a factor.8 The medical evidence required
to establish causal relationship is generally rationalized medical opinion evidence from a
physician. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty and must be supported

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

20 C.F.R. § 10.5(ee). See S.M., Docket No. 09-2290 (issued July 12, 2010); Donald W. Wenzel, 56 ECAB
390 (2005).
7

D.U., Docket No. 10-144 (issued July 27, 2010); Roy L. Humphrey, 57 ECAB 238 (2005); Frankie A.
Farinacci, 56 ECAB 723 (2005).
8

C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).

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by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.9
ANALYSIS
OWCP denied appellant’s claim because it found that she did not establish the first
component of fact of injury; whether she actually experienced the employment exposures that
allegedly caused an injury. It found that she did not provide a factual statement identifying the
employment factor which she alleged that she was exposed to and which she believed caused or
contributed to her claimed injury. OWCP noted that it provided appellant an opportunity to
provide such information, but that such information was not received.
The Board finds that appellant failed to meet her burden of proof.
Appellant has the burden to submit a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition,
medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed and medical evidence establishing that the diagnosed condition is
causally related to the implicated employment factors.
In developing appellant’s claim for an occupational disease, OWCP requested that she
submit a personal statement identifying specific factors which she attributed caused her
candidiasis pneumonia. It also requested that she submit medical evidence describing how the
implicated employment factor or factors caused or aggravated the conditions she identified.
Appellant did not provide the factual statement requested by OWCP. She initially attributed her
condition to a patient who coughed near her while working at the woman’s clinic. Following the
initial denial of her claim and remand by an OWCP hearing representative, appellant attributed
her condition to infestation of mold/fungus in the woman’s clinic waiting room instead of to
exposure to patients with candidiasis. She changed the employment factor which she believed
caused or contributed to her condition.
Further, appellant did not submit rationalized medical evidence establishing a diagnosis
and causal relationship between her condition and factors of her federal employment. Both
Dr. Wasserman and Dr. Trangle attributed appellant’s candidiasis pneumonia to her work with
patients at the woman’s clinic without providing any supporting rationale. The only rationale
provided was that, as appellant was working in a hospital setting, this was the only place she
could have been exposed to candidiasis. Neither, physician mentioned exposure to mold or
fungus in the workplace. Moreover, Dr. Cosmo, an OWCP referral physician, opined that the
cause of appellant’s condition was not due to her employment. Although OWCP informed her of
the deficiencies in the evidence, she did not submit sufficient factual and medical evidence to
establish her claim.10 Appellant did not meet her burden of proof to establish that she sustained
an employment-related injury.
9

D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).
10

See O.W., Docket No. 09-2110 (issued April 22, 2010); Donald W. Wenzel, supra note 6.

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained an
occupational disease in the performance of her federal duties.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2012 is affirmed.
Issued: February 12, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
M.S., Appellant
and
DEPARTMENT OF ENERGY, SOUTHEASTERN
POWER ADMINISTRATION, Elberton, GA,
Employer
____________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-96
Issued: August 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 13, 2010 appellant filed a timely appeal of an April 16, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the overpayment case.
ISSUES
The issues are: (1) whether appellant received overpayment compensation in the amount
of $5,371.50 for the period March 30, 2008 through August 1, 2009; (2) whether OWCP
properly denied waiver of the recovery; and (3) whether OWCP properly requested recovery
through payment of the entire amount of the overpayment.
On appeal appellant stated that she was submitting additional information which she
inadvertently failed to submit to the hearing representative.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 15, 2006 appellant, then a 52-year-old supply technician, filed a traumatic injury
claim alleging that she injured her head and neck in the performance of duty. She completed a
claim for compensation and indicated that she was enrolled in health benefits code 105. On
September 15, 2006 OWCP accepted appellant’s claim for sprain of the neck. Appellant
returned to light-duty work on February 27, 2007. OWCP accepted that she sustained a
recurrence of disability on February 28, 2007. Appellant returned to work four hours a day on
March 8, 2007. By decision dated February 15, 2008, OWCP terminated her compensation
benefits effective that date finding that she was no longer disabled due to her accepted
employment injury. Appellant requested an oral hearing and, by decision dated April 17, 2008,
the Branch of Hearings and Review reversed OWCP’s February 15, 2008 decision and reinstated
her compensation benefits retroactively to February 15, 2008.
On April 22, 2008 OWCP reinstated appellant’s compensation benefits for period
February 17 through April 12, 2008 and did not provide any deduction for health insurance or
life insurance. It accepted her claim for the additional conditions of chronic pain syndrome and
fibromyalgia on August 1, 2008.
On June 10, 2009 the employing establishment informed OWCP that appellant had
elected health benefits code 105 and that premiums were not deducted from March 12, 2007
through June 6, 2009. On August 4, 2009 OWCP determined that the employing establishment
paid her health insurance premiums through March 29, 2008. It calculated that appellant’s health
insurance benefits from March 30, 2008 through August 1, 2009 resulted in an overpayment of
$5,371.50.
In a letter dated August 10, 2009, OWCP informed appellant of a preliminary
determination that she had received an overpayment of compensation in the amount of $5,371.50
because no health benefit premiums were deducted from her compensation during the period
March 30, 2008 through August 1, 2009. It noted that from March 30 through January 3, 2009
her biweekly health insurance premiums were $145.14 and multiplied this amount by 20 twoweek pay periods to reach $2,902.80 and from January 4 though August 1, 2009 her biweekly
health insurance premium was $164.58 and multiplied this amount by 15 two-week pay periods
to reach $2,468.70 for a total overpayment of $5,371.50. OWCP found that appellant was not at
fault in the creation of the overpayment. It provided her with an overpayment recovery
questionnaire (OPRQ).
Appellant requested a prerecoupment hearing on September 1, 2009 and submitted the
completed OPRQ on August 31, 2009 indicating that her monthly household income was
$3,055.00. She included $1,800.00 from her husband, $1,115.00 from social security and
$469.00 from OWCP benefits which total $3,375.00. Appellant indicated that housing expenses
were $890.70, food was $600.00 and utilities were $600.00 with miscellaneous expenses of
$275.00 and incidentals of $207.05. She listed her monthly debts as an additional $282.25 for
total expenses of $3,055.00. Appellant stated that she had $36.75 in her checking account and no
savings account or other funds and property. She stated that repaying the premiums would create
a serious hardship and make it impossible to survive financially. Appellant noted that she and
her husband planned to separate and possibly divorce.

2

Appellant’s attorney appeared at the prerecoupment hearing on February 22, 2010 and
stated that appellant would submit additional financial information. The hearing representative
requested additional financial information clarifying the household income and members of the
household, noting that appellant indicated that a separation from her husband was contemplated.
She also requested documentation in support of the household expenses claimed. The hearing
representative allowed 30 days for a response.
By decision dated April 16, 2010, the Branch of Hearings and Review found that there
was an overpayment in the amount of $5,371.50 for the period March 30, 2008 through
August 1, 2009 as OWCP did not deduct health insurance premiums. The hearing representative
noted that OWCP found appellant without fault in the creation of the overpayment. Appellant
failed to provide the additional financial information requested by the hearing representative.
The hearing representative found that appellant’s household composition, income, expenses and
assets could not be determined from the evidence in the record. The hearing representative
found that due to the absence of requested financial information the record did not establish that
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience and concluded that the entire amount of the overpayment was due and payable.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA2 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) of FECA provides, in pertinent part, that 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.4
The regulations of the Office of Personnel Management (OPM), which administers the
Federal Employees’ Health Benefit program, provide guidelines for registration, enrollment and
continuation of enrollment of federal employees.
In this connection, 5 C.F.R.
§ 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”5

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

5 C.F.R. § 890.502(a)(1).

3

In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and applicable agency contributions required
under section 8906 of Title 5 United States Code, to OPM for deposit in the
Employees Health Benefits Fund.”6
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.7 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.8 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $5,371.50 for the period March 30, 2008 through August 1, 2009. The record reveals that,
when the hearing representative reinstated appellant’s compensation benefits following an
improper termination of benefits, OWCP did not begin deducting health benefits. The
employing establishment paid health benefits through March 30, 2008 and no health insurance
premiums were paid from March 30, 2008 through August 1, 2009. Thus, an overpayment was
created by the underdeduction of premiums for the health benefits appellant elected. The Board
finds, therefore, that OWCP properly determined that appellant received a $5,371.50
overpayment for the stated period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.10 The only exception to this requirement that an
overpayment must be recovered is set forth 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 the Act or would be against
equity and good conscience.”
6

Id. at § 890.502(c).

7

Id. at § 890.502(a)(1).

8

Id.

9

T.S., Docket No. 08-1604 (issued March 13, 2009); 5 C.F.R. § 890.502.

10

5 U.S.C. § 8129(a).

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Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would “defeat the purpose of FECA or would be against equity and
good conscience,” pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations11 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.12
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.13 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.14
ANALYSIS -- ISSUE 2
Appellant submitted a completed overpayment recovery questionnaire with financial
information outlining her income, expenses and assets. However, at the February 22, 2010
hearing, the hearing representative requested additional information related to her monthly
income and expenses. Appellant did not submit the requested information.
As appellant did not submit complete financial information, there was insufficient
evidence before OWCP establishing that recovery of the overpayment would defeat the purpose
of FECA or would be against equity and good conscience.15 As she failed to submit the
requested information, as required by section 10.438 of its regulations, she was not entitled to a

11

20 C.F.R. § 10.436.

12

20 C.F.R. § 10.437.

13

Id. at § 10.438(a).

14

Id. at § 10.438(b).

15

See id. at § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).

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waiver.16 The Board finds that OWCP properly denied waiver of recovery of the $5,371.50
overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his or her attention is called to the same. If
no refund is made, [OWCP] shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual and any other relevant
factors, so as to minimize any hardship.”17
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under
FECA. As noted, appellant failed to timely submit supporting documentation or properly
represent her income on the overpayment questionnaire form. In cases where the appropriate
financial documentation or overpayment questionnaire as required by 20 C.F.R. § 10.441 is not
submitted, OWCP is unable to consider financial circumstances. The Board finds that OWCP
did not abuse its discretion in following its regulations and finding that the overpayment was due
in full.18
On appeal, appellant submitted additional new financial information. As OWCP did not
consider this evidence in reaching a final decision, the Board may not review the evidence for
the first time on appeal.19
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $5,371.50 for the period March 30, 2008 through August 1, 2009 for which she was not at
fault. The Board further finds that appellant failed to submit the necessary financial information
for OWCP to determine waiver and an appropriate repayment schedule. Therefore the Board
finds that OWCP properly determined that appellant should repay the amount in full.

16

Id.

17

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

18

C.H., Docket No. 09-26 (issued November 17, 2009).

19

20 C.F.R. § 501.2(c)(1).

6

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2010 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: August 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Morton Grove, IL, Employer
__________________________________________

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

Docket No. 07-697
Issued: June 26, 2007

Case Submitted on the Record

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

JURISDICTION
On January 16, 2006 appellant filed a timely appeal from the June 22 and December 10,
2006 merit decisions of the Office of Workers’ Compensation Programs, which denied her claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of her claim.
ISSUE
The issue is whether appellant’s injury on May 9, 2006 arose in the performance of duty.
FACTUAL HISTORY
On May 11, 2006 appellant, then a 58-year-old automation clerk, filed a claim alleging
that she sustained an injury in the performance of duty on May 9, 2006: “Tripped on rug in
atrium hallway at the 8125 bldg. entrance when returning to building to use the phone after
hours.” She stated that she tripped on a carpet runner and fell face down on the floor, badly

bruising her left ribs and hand. A manager reported the telephone conversation she had with
appellant on May 11, 2006:
“[The supervisor] asked [appellant] to tell her how she fell. [Appellant] said that
she was at the job alone at 5:15 in the conference room looking for her bus. She
said that when the bus didn’t come she called to see when it was supposed to
arrive. She went out when she saw the bus, she went out thru the front door that
leads to the parking lot and tripped on the rug because the bus was leaving.”
On May 17, 2006 the Office asked the employing establishment for additional
information. The Office asked whether, at the time of injury, appellant was on premises that
were owned, operated or controlled by the employing establishment. If so, the Office asked for a
diagram showing the boundaries of the premises and the location of the injury site in relation to
the premises. The Office also asked for the exact time of injury: “If the injury occurred more
than 30 minutes outside the employee’s usual work hours, have the official superior submit an
explanation for the employee’s presence on the premises at the time of the injury.”
The manager responded on May 24, 2006:
“At the time of injury the employee was on the premises that is not owned,
operated or controlled by the [employing establishment]. The injury occurred in a
public space area within the building.
“The exact time of the injury was 5:15 p.m., per the claimant. The employee’s
normal tour of duty is Monday through Friday from 8:30 a.m. until 5:00 p.m. The
employee had already left the building at 5:00 p.m. but then she returned later to
make a [tele]phone call. That is when the employee’s injury occurred.”
In a decision dated June 22, 2006, the Office denied appellant’s claim: “Since your
injury occurred after your tour of duty and you reentered the building you were not in the
performance of duty.”
Appellant requested reconsideration. She explained that she was disabled by a previous
injury and could only ride vehicles that assisted disabled persons. Appellant stated that she could
not control what time the vehicle arrived at her workplace, and on May 9, 2006 the vehicle was
very late. She added: “I was still at my workplace inside 8125 North River Drive where I fell
when I tried to go back to my office area to call the company to explain why the bus left me,
since I had come outside to be transported onto the bus.”
On September 20, 2006 appellant argued that the Office should approve her claim for the
following reasons:
“1. The atrium is part of the Internal Revenue Service space for access to offices,
conference rooms and bathrooms and for the overflow of taxpayers on peak days.
Even if this was not IRS space, people have fallen outside of government property
and are covered by workers’ comp.

2

“2. I am an injured employee. I travel to work by a PACE bus equipped for the
disabled. This bus often is late. That night it came after 5:15 p.m. I was looking
for the bus and it left while I was standing in front of it. Because the bus left, I
had to come back inside the building to call the company. I fell on my way inside
the door.
“3. I was doing official telephone work until the bus came at 5:15 p.m.”
In a decision dated October 10, 2006, the Office reviewed the merits of appellant’s case
and denied modification of its prior decision. The Office found that previous work-related
injuries had no bearing on the present claim. The Office held that appellant removed herself
from the performance of duty when she stopped working and left the building to catch her bus:
“The Office finds that you stopped working and went outside to catch your bus after your tour of
duty ended, and you returned back to the premises solely for personal reasons, therefore you are
not considered to be in the performance of your federal job duties when the injury occurred.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of duty.1 The
phrase “sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of performance.”2 To arise out of employment, the injury must have a causal connection
to the employment, either by precipitation, aggravation or acceleration.
“Course of
employment” relates to the elements of time, place and work activity: the injury must occur at a
time when the employee may reasonably be said to be engaged in her employer’s business, at a
place where she may reasonably be expected to be in connection with her employment, and
while she was reasonably fulfilling the duties of her employment or engaged in doing something
incidental thereto.3
As to employees having fixed hours and a fixed place of work, injuries occurring on the
premises while they are going to and from work before or after working hours or at lunchtime
are compensable.4 The course of employment for such employees embraces a reasonable
interval before and after official working hours while the employee is on the premises engaged in
preparatory or incidental acts. What constitutes a reasonable interval depends not only on the

1

5 U.S.C. § 8102(a).

2

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
3

Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp (Joseph L.
Barenkamp), 5 ECAB 228 (1952).
4

Emma Varnerin, M.D., 14 ECAB 253, 254 (1963); 1 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’
COMPENSATION LAW ch. 13 (June 2006).

3

length of time involved but also on the circumstances occasioning the interval and the nature of
the employee’s activity.5
The premises of the employer, as that term is used in workers’ compensation law, are not
necessarily coterminous with the property owned by the employer. They may be broader or
narrower and are dependent more on the relationship of the property to the employment than on
the status or extent of legal title.6 When the place of employment is a building, it is not
necessary that the employer own or lease the place where the injury occurred. It is sufficient if
the employer has some kind of right of passage, as in the case of common stairs, elevators,
vestibules, concourses, hallways, walkways, ramps, foot bridges, driveways or passage ways
through which the employer has something equivalent to an easement.7
ANALYSIS
Appellant had fixed hours and a fixed place of work. Her injury is considered to have
arisen in the course of employment if it occurred (1) on the premises, (2) a reasonable interval
after official working hours and (3) while she was leaving work, or engaged in preparatory or
incidental acts. The Office denied her claim because she left the building after work, thereby,
removing herself from the performance of duty. But leaving the building does not necessarily
mean she left the premises. That depends on the relationship of the surrounding property to the
employment. The Office did not sufficiently develop this evidence. The employing
establishment submitted no diagram of the building and the surrounding property, including
walkways, sidewalks, streets, the parking lot and the position of the bus stop. Appellant did not
make clear exactly where she traveled from the time she left the building, intent on catching the
bus, to the time she reentered the building and fell, nor did she make clear how long this took.
The Board will set aside the Office decisions denying appellant’s claim and remand the case for
further development. After such further development as may be necessary, the Office shall issue
an appropriate final decision on appellant’s claim for compensation.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of
evidence is necessary.

5

Nona J. Noel, 35 ECAB 439 (1983); LARSON § 21.06.

6

Wilmar Lewis Prescott, 22 ECAB 318, 320-21 (1971).

7

LARSON § 13.04[3].

4

ORDER
IT IS HEREBY ORDERED THAT the October 10 and June 22, 2006 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
action consistent with this opinion.
Issued: June 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 19-0849
Issued: October 3, 2019

Case Submitted on the Record

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

JURISDICTION
On March 11, 2019 appellant filed a timely appeal from a January 31, 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
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 3, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On February 4, 2018 appellant, then a 49-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on February 3, 2018 she strained her left lower leg while in the
performance of duty when she was pushing a full bin of mail onto a trailer and felt a pop in her
left calf.
An unsigned emergency room hospital record dated February 3, 2018 indicated that an xray of appellant’s left ankle revealed no fracture or dislocation. The report listed a diagnosis of
gastrocnemius strain.
Appellant submitted a series of physical therapy reports dated March 5, 12, and 28 and
April 4 and 11, 2018. The reports listed a diagnosis of strain of other muscle and tendon of the
left lower leg.
In a development letter dated December 13, 2018, OWCP related that when appellant’s
claim was first received it appeared to be a minor injury that resulted in minimal or no lost time
from work and was therefore administratively approved for payment of a limited amount of
medical expenses. It indicated that her claim had been reopened for consideration. OWCP
informed appellant of the deficiencies of her claim and advised her that additional factual and
medical evidence was needed to establish her claim. It provided a questionnaire for her completion
and afforded her 30 days to submit the necessary evidence. No further evidence was received.
By decision dated January 31, 2019, OWCP denied appellant’s claim finding that the
evidence of record lacked medical evidence containing a medical diagnosis in connection with the
accepted February 3, 2018 employment incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
3

Supra note 1.

4

T.J., Docket No. 18-1500 (issued May 1, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron,41 ECAB 153 (1989).
5

T.J., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
6
T.J., supra note 4; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury. 8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence. 9 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
medical condition and the specific employment incident. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 3, 2018 employment incident.
In support of her claim appellant submitted an unsigned hospital report dated
February 3, 2018. Regarding unsigned reports, the Board has explained that lacking a signature,
it cannot be determined whether a physician was the author of the report. Therefore, the Board
has held that a report that is unsigned or bears an illegible signature lacks proper identification and
cannot be considered probative medical evidence. 11 Thus, this report is of no probative value and
is insufficient to establish appellant’s claim.
In addition, appellant submitted a series of physical therapy reports. However, physical
therapists are not considered physicians as defined under FECA and thus their reports do not
constitute competent medical evidence. 12
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to her February 3, 2018
employment incident.13 Appellant, therefore, has not met her burden of proof.

7

M.H., Docket No. 18-1737 (issued March 13, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., id.; John J. Carlone, 41 ECAB 354 (1989).

9

P.D., Docket No. 19-0600 (issued August 12, 2019).

10

S.S., Docket No. 18-1488 (issued March 11, 2019).

11

L.D., Docket No. 19-0039 (issued May 7, 2019); see L.M., Docket No. 18-0473 (issued October 22, 2018).

12

5 U.S.C. § 8101(2); L.D., id.; J.L., 17-1207 (issued December 8, 2017); David P. Sawchuck, 57 ECAB 316, 322
n.11 (2006).
13

T.J., supra note 4; see D.S., Docket No. 18-0061 (issued May 29, 2018).

3

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 3, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 15-1800
Issued: December 10, 2015

Case Submitted on the Record

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

JURISDICTION
On August 31, 2015 appellant filed a timely appeal of a May 22, 2015 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 to
consider the merits of the case.
ISSUE
The issue is whether OWCP properly determined that appellant was not entitled to
continuation of pay for the period January 7 to February 21, 2015.
FACTUAL HISTORY
Appellant, a 51-year-old window clerk, struck his left knee against a container on
January 7, 2015. He filed a traumatic injury claim (Form CA-1) on April 29, 2015, which

1

5 U.S.C. § 8101 et seq.

OWCP accepted for left knee contusion, deep vein thrombosis on the left, and cellulitis of the
left lower leg.
In a report dated March 6, 2015, Dr. Mark Mantano, a specialist in family medicine,
noted that appellant was at maximum medical improvement and had returned to work on
March 6, 2015.
In a May 22, 2015 decision, OWCP determined that appellant was not entitled to
continuation of pay for the period January 7 to February 21, 2015 because he did not report his
injury on a form approved by OWCP within 30 days following the injury. It noted that his
reported date of injury was January 7, 2015 and that he filed the Form CA-1 traumatic injury
claim on April 29, 2015. OWCP advised appellant that its decision concerned his entitlement to
continuation of pay, but did not affect his entitlement to other compensation benefits. Appellant
could still claim compensation by filing a Form CA-7, through his employer.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes continuation of pay, not to exceed 45 days, to an
employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her
immediate superior on a form approved by the Secretary of Labor within the time specified in
section 8122(a)(2) of this title.2 This latter section provides that written notice of injury shall be
given within 30 days.3 The context of section 8122 makes clear that this means within 30 days
of the injury.4
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time due to the need for medical examination and treatment; (2) file
Form CA-1 within 30 days of the date of the injury (but if that form is not available, using
another form would not alone preclude receipt); and (3) begin losing time from work due to the
traumatic injury within 45 days of the injury.5
The Board has held that section 8122(d)(3) of FECA,6 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because
of exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. Thus, there is no provision in the law for excusing an
employee’s failure to file a claim within 30 days of the employment injury.7

2

Id. at § 8118.

3

Id. at § 8122(a)(2).

4

Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

5

20 C.F.R. § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

6

5 U.S.C. § 8122(d)(3).

7

Dodge Osborne, 44 ECAB 849, 855 (1993).

2

ANALYSIS
Appellant filed a Form CA-1 written notice of a traumatic injury on April 29, 2015, more
than 30 days after his injury on January 7, 2015. Because he filed the claim on April 29, 2015,
the Board finds that it was not filed within 30 days of the injury, as specified in sections 8118(a)
and 8122(a)(2) of FECA. There is no provision in FECA for excusing a late filing and appellant
is not entitled to continuation of pay.8 This is so regardless of any failure on the part of the
employing establishment.9 The Board finds that appellant was not entitled to continuation of pay
as he did not file within the requisite 30 days from the date of injury.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for continuation of pay
from January 7 to February 21, 2015.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 10, 2015
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
8

Id.

9

See 20 C.F.R. § 10.211 (the employing establishment’s responsibilities in continuation of pay cases).

10

Id.

3