United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.E., Appellant
and
U.S. POSTAL SERVICE, COLLEGE PARK
POST OFFICE, College Park, GA, Employer
__________________________________________

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

Docket No. 20-0979
Issued: October 20, 2021

Case Submitted on the Record

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

JURISDICTION
On April 4, 2020 appellant, through her representative, filed a timely appeal from a
December 5, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the December 5, 2019 decision. 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.

ISSUE
The issue is whether appellant has met her burden of proof to modify OWCP’s
December 2, 2004 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On December 15, 1999 appellant, then a 39-year-old city mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that on December 6, 1999, she sustained an emotional condition
when she was robbed at gunpoint while delivering mail in an apartment building in the
performance of duty. She stopped work on December 6, 1999. OWCP accepted the claim for
unspecified reaction to stress.
Appellant received treatment from David B. Rush, PhD., a licensed clinical psychologist.
In progress notes dated December 17, 1999 to January 12, 2000, Dr. Rush advised that appellant
should not return to delivering mail, as it would lead to an increase in her level of anxiety.
Appellant returned to work as a modified city carrier on January 18, 2000.
In a report dated November 7, 2001, Dr. Paris A. Souval, a family practitioner, noted that
he had treated appellant since the employment injury in December 1999. He noted that he did not
recommend that appellant return to full duty on her route, or on any route, but that he would
recommend that she attempt certain tasks towards returning to full status. Dr. Souval related that
appellant had mentioned that she had some problems when she had to perform Express Mail
curbside delivery as well as delivery to some business locations.
In a report dated May 3, 2002, Dr. Rush related that it was not appropriate for appellant to
return to delivering mail, that her hours should not be changed to the late afternoon or evening,
and that he did not recommend that her duty station be moved to the other side of town, as these
actions would increase her stress level and possibly her anxiety.
Due to a lack of limited-duty work, appellant stopped work on May 9, 2002.
On May 20, 2002 the employing establishment offered appellant a limited-duty assignment
as a modified city carrier, Level 1, step 0, $42,635.00 annually and $20.50 hourly. The hours of
the assignment were from 6:00 a.m. to 2:50 p.m., with off days listed as Sunday and Wednesday.
The duties of the position included priority hub run to North Atlanta and hub to Doraville, long
life vehicle (LLV) vehicle provided, casing mail on routes, P.O. Box section, clerical work
(certified mark ups, etc.) process computer forwarding systems (CFS) and Internal Revenue
Service (IRS) mail, deliver express mail and deliver to business, but no neighborhood delivery
collection box units, (NDCBU’s). The physical requirements included walking, standing, sitting
intermittently, fine manipulation and simple grasping with hands. The physical restrictions noted
indicated that appellant could not be exposed to apartment mail delivery and she was advised to
perform all duties within her physician’s limitations. The limited-duty assignment was available
as of May 25, 2002. Although appellant rejected the offer on May 28, 2002 she accepted the
assignment and returned to work as a modified city carrier on June 10, 2002.
By decision dated December 2, 2004, OWCP found that the actual wages of the modified
city carrier position that appellant began on June 10, 2002, fairly and reasonably represented her
2

wage-earning capacity. It noted that, “Your actual wages meet or exceed the wages of the job held
when injured, and no loss of wages has occurred.” OWCP explained that appellant’s entitlement
to compensation for wage loss was terminated according to the provisions of 5 U.S.C. § 8115.
In a March 5, 2012 report, Dr. Rush noted that he saw appellant on a monthly basis related
to the robbery, which occurred in December 1999. He opined that she continued to have problems
with stressful situations and had recently experienced an increase in stress and anxiety due to a
significant change in her work schedule. Dr. Rush advised that appellant’s work duties should
avoid unnecessary stress and pressure and she should be assigned to inside duties.
On March 21, 2012 the employing establishment offered appellant a new modified city
carrier position. The duties of the position included answering telephones/recording appointments,
and completing form and report via computer. All duties were to be performed indoors. The
assignment location was changed to the Hapeville Branch. Appellant accepted the offer on
April 3, 2012.
In a November 28, 2018 treatment note, Dr. Rush reiterated that he saw appellant on a
monthly basis related to the robbery that occurred in December 1999, and that appellant continued
to have problems with stressful situations. He advised that appellant’s “work duties should avoid
unnecessary stress and pressure and she should be assigned inside duties until further notice” and
that appellant “recently presented with increases in stress and anxiety due to a significant change
in her work schedule.”
On December 21, 2018 appellant filed a claim for compensation (Form CA-7) for wage
loss during the period November 28 through December 21, 2018.
In a December 14, 2018 e-mail from the employing establishment, R.W., a manager,
explained that appellant was advised to report to the Lakewood Station for one day. He explained
that she responded that it was “out of her comfort zone.” R.W., explained that, if appellant could
not report to Lakewood, he could not use her in “204B.”
In a December 6, 2018 note, Dr. Rush indicated that appellant had an acute stress disorder
with a work stoppage on November 28, 2018, and a tentative return to work on
December 28, 2018.
On December 20, 2018 the employing establishment offered appellant another modified
assignment at the Old National Post Office facility. The duties included indoor work up to four
hours daily casing mail. Appellant responded that her estimated return to work date was not until
February 1, 2019. She neither accepted nor refused the job offer.
In a December 27, 2018 report, Dr. Rush reiterated that he saw appellant for therapy on a
weekly basis as she was still experiencing unspecified emotional issues that precluded her from
returning to work. He advised that she was expected to return to work pending reevaluation on
February 1, 2019.
On December 28, 2018 appellant filed a Form CA-7 for wage loss during the period
December 22 through 28, 2018.

3

In a development letter dated January 8, 2019, OWCP noted that it had received appellant’s
CA-7 forms for the period November 28 through December 28, 2018. It advised that the medical
evidence of record did not substantiate that her disability was caused by the accepted employment
injury. OWCP indicated that, if a material worsening of an allowed condition was claimed, a
supporting medical opinion should be provided. It also indicated that, if appellant was claiming a
significant change in the work assignment, it “may constitute a new injury. As this was a one-time
event that occurred during the work shift, a CA-1 should be file[d].” OWCP afforded her 30 days
to provide evidence substantiating her claim.
Appellant continued to submit CA-7 forms for wage loss during the periods December 29,
2018 through February 22, 2019.
In a January 18, 2019 report, Dr. Rush noted appellant’s history of injury and treatment.
He related that she had colitis secondary to her stress and high blood pressure. Dr. Rush diagnosed
post-traumatic stress disorder (PTSD), persistent depressive disorder, and unspecified adjustment
disorder. He explained that appellant was seeking updated evidence of her level of function with
regard to her claims for wage-loss compensation. Dr. Rush opined that she continued to
experience symptoms of PTSD, including hypervigilance, exaggerated startle response, irritability,
emotional reactivity, anger, and occasional nightmares and flashbacks. He advised that appellant
was depressed a majority of the time, however, in spite of the persistent PTSD symptoms and
dysthymic mood, she was able to maintain her employment, and denied any specific work
performance problems. Dr. Rush related that a new acting manager hired several months prior
was now harassing appellant in the workplace and that, ‘‘It was for this reason that she requested
to go on leave from her job.” He explained that her depression and PTSD made it difficult to cope
and her symptoms intensified in response to the harassment that she had been experiencing.
OWCP issued additional development letters on January 22, and February 1 and 19, 2019
in response to the additional claims for wage-loss compensation for the periods December 29,
2018 and continuing.
In a January 30, 2019 treatment note, Dr. Rush reiterated that he saw appellant on a
monthly basis related to the robbery that occurred in December 1999. He noted that she continued
to have problems with stressful situations and advised that her work duties should avoid
unnecessary stress and pressure and she should be assigned inside duties until further notice.
Dr. Rush advised that appellant “recently presented with increases in stress and anxiety due to a
significant change in her work schedule.”
By decision dated February 27, 2019, OWCP denied appellant’s claim for compensation
for the period November 28, 2018, and continuing. It found that she had not provided sufficient
medical evidence to establish that she was disabled as a result of her accepted work -related medical
conditions.
Appellant continued to submit Form CA-7 claims.
On March 26, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated April 2, 2019, OWCP denied appellant’s claim for compensation for the
period January 5, 2019 and continuing. It found that she had not provided sufficient medical
4

evidence to establish that her present medical conditions were the result of her December 6, 1999
employment injury.
Appellant continued to submit Form CA-7 claims.
In a March 13, 2019 statement, appellant indicated that she had worked on a detail for six
years since 2012, but that it ended in January 2018, when a new supervisor arrived. She also stated
that her passport office detail was ending as her assigned station did not have work for her.
Appellant noted that she was assigned to a role supervising clerks, but it ended after three months
due to a union grievance. She indicated that she was then assigned to the Hapeville Branch with
a new supervisor and suffered stress related to constant changes in her schedule. Appellant
explained that she preferred to open the employing establishment when others were there as
opposed to closing, which typically involved leaving alone. On several occasions her supervisor
would request that she open, but would show up later and relate that appellant was not supposed
to open, but rather was to close that day. Appellant reported elevated blood pressure, elevated
stress, headaches, sleep disturbance, chest pain, and depression secondary to having to close the
employing establishment. She explained that when she was told to report to the Lakewood Station,
she refused because it was a high crime area with drug activity and shootings. Appellant noted
that despite informing her supervisor of her medical restrictions, she was told not to return to her
current assignment, if she would not report to Lakewood Station. She explained that her condition
was exacerbated by being sent to a location with a high crime level.
Appellant continued to submit Form CA-7 claims.
In a March 18, 2019 report, Dr. Rush repeated his prior findings regarding appellant’s
medical conditions and advised that there was a recent and significant change in her work schedule
due to “a request that [appellant] work in an area that is a high crime area and significantly
increased her anxiety knowing she would need to work in this area.”
On April 1, 2019 appellant accepted an offer of modified work as a modified city carrier,
to case mail, with “indoor work only” at the Old National Post Office, under protest.
On April 30, 2019 appellant reported to OWCP that she had presented to work on
March 23, 2019, however, she was told that the employing establishment had no work available.
In a letter dated May 28, 2019, OWCP’s Branch of Hearings and Review requested that
the employing establishment provide comments or documents it believed to be relevant and
material to appellant’s claim. The employing establishment did not respond.
By decision dated July 9, 2019, OWCP’s hearing representative affirmed the February 27,
2019 decision, finding that none of the three required tests for modifying an LWEC decision had
been met. The hearing representative explained that there was no evidence that the December 2,
2004 decision was issued in error, no evidence of a worsening in the allowed condition, and no
evidence that appellant was vocationally rehabilitated. The hearing representative found that
appellant had declined a temporary assignment at another location the prior November and had
not returned to work since then. The hearing representative noted that appellant indicated that she
was subjected to harassment from a new supervisor and that appellant was advised that this
appeared to be a claim for a new injury and she could file a new claim.

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On September 19, 2019 appellant requested reconsideration. She indicated that she was
submitting new evidence and included the offer of a modified assignment dated March 26, 2019,
and signed on April 1, 2019. Appellant argued that the LWEC determination should be modified
as it was erroneous. She listed her various work assignments and noted that th e modified job
offered on March 26, 2019, was for only two to four hours per day and she was capable of working
eight hours per day. Appellant referred to various prior Board decisions for the premise that wageearning capacity was a measure of the employee’s ability to earn wages in the open labor marker
under normal employment conditions. She also referred to prior Board decisions to support her
argument that the offered position was an odd-lot or makeshift position. Appellant argued that the
positions offered to her were not actual “bona fide” positions, but rather “ad hoc” jobs consisting
of various sub-duties created for her, based on her medical restrictions. She cited to the “odd-lot
doctrine” and argued that her job was odd-lot because it was not regularly and continuously
available under normal employment conditions.
In a September 6, 2019 report, Dr. Rush repeated that he saw appellant on a monthly basis
related to a robbery that occurred in December 1999. He opined that she continued to have
problems with stressful situations, which impacted her anxiety and other medical issues. Dr. Rush
noted that appellant recently presented with an increase in stress and anxiety due to a significant
change in her work schedule. He advised that she should avoid stress and pressure and only be
assigned to inside duties.
In a September 20, 2019 report, Dr. Rush repeated his prior findings. He also related that
appellant continued to be in a “non-pay status,” which exacerbated her medical conditions.
Dr. Rush noted that her work status had changed since December 2018, and caused an increase in
stress and anxiety due to the “significant changes in her work schedule.”
In a November 1, 2019 report, Dr. Rush repeated his findings, advised that appellant’s
work duties should avoid unnecessary stress and pressure and she should be assigned inside duties
until further notice, and noted that she presented with increases in stress and anxiety due to a
significant change in her work schedule.
By decision dated December 5, 2019, OWCP denied modification of the July 9, 2019
decision. It found that appellant had not established that the December 2, 2004 LWEC
determination was issued in error, no evidence of a worsening of the accepted condition, and no
evidence that she had been vocationally rehabilitated. OWCP concluded that she had not
established that modification of the December 2, 2004 LWEC determination was warranted.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Generally, wages actually earned are the best measure of wage-earning capacity and, in
the absence of evidence showing that they do not fairly and reasonably represent the injured

4

5 U.S.C. § 8115(a); see K.B., Docket No. 20-0358 (issued December 10, 2020); O.S., Docket No. 19-1149 (issued
February 21, 2020); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

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employee’s wage-earning capacity, must be accepted as such measure. 5 A determination regarding
whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be
made only after an employee has worked in a given position for at least 60 days. 6 Compensation
payments are based on the wage-earning capacity determination, and it remains undisturbed until
properly modified.7
OWCP’s procedures provide guidelines for determining wage-earning capacity based on
actual earnings. Reemployment may not be considered representative of the injured employee’s
wage-earning capacity when an injured employee who has been released to full-time work is
working less than full-time hours, the job is temporary where the employee’s job when injured
was permanent, and the job represents permanent seasonal employment in an area where year round employment is available (unless the employee was a career seasonal or temporary employee
when injured). 8 In addition, it is well established that a position that is considered an odd -lot or
makeshift position designed for a claimant’s particular needs is not appropriate for a wage-earning
capacity determination. 9
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original determination was in fact erroneous, there
is a material change in the nature and extent of the injury-related condition, or the employee has
been retrained or otherwise vocationally rehabilitated.10 The burden of proof is on the party
attempting to show a modification of the wage-earning capacity determination. 11
ANALYSIS
The Board finds that appellant has not met her burden of proof to modify OWCP’s
December 2, 2004 LWEC determination.
Appellant has not alleged that the modified position was improper as it was part-time,
temporary or seasonal. Rather, she argued that the modified city carrier position she held since
June 10, 2002, was constantly changed, makeshift, or odd-lot, and could not serve as the basis for
the December 2, 2004 LWEC determination. The issue presented is whether the December 2,
2004 LWEC determination was proper when issued, based upon the modified work offer appellant

5

See J.A., Docket No. 18-1586 (issued April 9, 2019).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
7

See M.F., Docket No. 18-0323 (issued June 25, 2019).

8

Supra note 6 at Chapter 2.815.5c(2) (June 2013).

9

See A.J., Docket No. 10-0619 (issued June 29, 2010).

10

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage
Earning Capacity Decisions, Chapter 2.1501.3a (June 2013).
11

O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

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accepted on June 10, 2002. The modified work offers appellant refers to made after December 2,
2004 are irrelevant to this issue.
In evaluating whether an offered position was make-shift or odd-lot, the requirements of a
bona fide position have been established by this Board 12 and these criteria have been met in this
case. The modified city carrier offer was a formal offer and identified the position as Level 1, step
O, $42,635.00 annually, and $20.50 hourly. The hours of the assignment were from 0600-1450
hours, with off days listed as Sunday and Wednesday. The duties of the position were identified
and included priority hub run to North Atlanta and hub to Doraville, LLV provided; casing mail
on routes; P.O. Box section; clerical work; process CFS; IRS mail; deliver express mail and deliver
to businesses, but no NDCBU’s. The physical requirements included walking, standing, sitting
intermittently, fine manipulation, and simple grasping with hands. The position description
indicated that appellant would not be exposed to apartment mail delivery and was advised to
perform all duties within her physical limitations. The Board finds that position was a bona fide
position and appellant has not submitted any evidence establishing that this position was makeshift or odd-lot.13
As appellant performed this position for at least 60 days prior to the wage-earning capacity
determination, the Board finds that appellant has not established that the December 2, 2004 LWEC
determination was erroneously issued. 14
Appellant has also not established that her injury-related condition materially worsened
such that she could not perform the duties of the modified position.15 Dr. Rush noted that he
treated appellant on a weekly basis following the work-related robbery on December 6, 1999.
Appellant submitted numerous reports from Dr. Rush after 2004 in which he related that a change
in appellant’s work schedule increased her stress and anxiety, but he did not provide any medical
findings to support an opinion that appellant’s employment-related medical conditions had
materially worsened. Therefore, these reports are insufficient to establish that the December 2,
2004 LWEC determination should be modified. 16
In a report dated January 18, 2019, Dr. Rush opined that appellant continued to experience
symptoms of PTSD, including hypervigilance, exaggerated startle response, irritability, emotional
reactivity, anger, and occasional nightmares and flashbacks. He advised that appellant was
depressed a majority of the time, however, in spite of the persistent PTSD symptoms and
dysthymic mood, he related that appellant was able to maintain her employment, and denied any
specific work performance problems. Dr. Rush further related that a new acting manager hired
several months prior was now harassing appellant and that was the reason appellant was requesting
leave from her job. He explained that appellant’s depression and PTSD made it difficult to cope
and her symptoms intensified in response to the harassment that she had been experiencing.
12

Supra note 9.

13

Id.

14

Supra note 7.

15

See L.P., Docket No. 17-1624 (issued March 9, 2018); Darletha Coleman, 55 ECAB 143 (2003).

16

See M.G., Docket No. 19-1659 (issued August 18, 2020); D.T., Docket No. 18-0174 (issued August 23, 2019).

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Definition as to when modification of a formal LWEC determination should occur if the claimant’s
medical condition has materially changed is provided in OWCP’s procedures. These procedures
provide for modification of an LWEC determination when current medical evidence demonstrates
a worsening of the accepted medical condition with no intervening injury res ulting in new or
increased work-related disability. 17 Dr. Rush related that appellant was able to perform her job
duties, but stated that her symptoms had intensified due to harassment, the evidence at best
suggests that appellant sustained a worsening of her condition due to an intervening injury . The
reports from Dr. Rush, therefore, do not establish a worsening of appellant’s accepted condition
due to her accepted employment injury.
The Board also finds that there is no evidence of record to show that appellant has been
retrained or otherwise vocationally rehabilitated such that modification of the December 2, 2004
LWEC determination is warranted. 18
For these reasons, the Board finds that appellant has not met her burden of proof to modify
OWCP’s December 2, 2004 LWEC determination.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met her burden of proof to modify OWCP’s
December 2, 2004 LWEC determination.

17

Supra note 10.

18

See J.A., supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the December 5, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed. 19
Issued: October 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

19

In the event appellant is alleging a new injury with regard to anxiety and stress due to the change in work schedule
and/or harassment, she may file a separate claim with OWCP.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF ENERGY,
Pickstown, SD, Employer
__________________________________________

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

Docket No. 06-2182
Issued: January 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 27, 2006 appellant filed a timely appeal from the December 23, 2005
decision of the Office of Workers’ Compensation Programs denying his claim on the grounds
that he failed to establish fact of injury in the performance of duty. On August 31, 2006 the
Office issued a nonmerit decision denying his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant filed a timely claim for compensation under the Federal
Employees’ Compensation Act.
FACTUAL HISTORY
On March 10, 2005 appellant, then a 77-year-old retired hydroelectric senior operator,
submitted a claim for occupational disease, Form CA-2.1 He alleged that he was aware of a
1

The Board notes that appellant also worked as a turbine operator and a journeyman operator at the employing
establishment.

hearing loss and its relationship to his federal employment on August 13, 1975. The employing
establishment filed the form with the Office on August 10, 2005. Appellant alleged that he had
partial hearing loss from his work at the employing establishment between January 1955 and
June 1968. He claimed that he had no protection from noise caused by riveting, grinding,
hammering, welding and the operation of large equipment. Appellant was aware of the effect
that this environment had on his hearing after approximately two years of work. He stated that a
doctor examined him around 1957 and informed him that he had lost his ability to hear high level
tones because of his exposure to excessive amounts of noise. Appellant claimed that he
“mentioned [his] hearing loss while on the job,” but that nothing was done to prevent further
hearing loss since “conditions were becoming less obtrusive.” He alleged that the employing
establishment did not begin to provide annual hearing examinations until after he left in 1968.
Appellant did not file his claim earlier because he was “unaware until recently that similar claims
have received favorable determinations for compensation.” He stated that he was subjected to
high noise levels at the employing establishment from January 1955 to June 1968 for a total of
13½ years. Appellant concluded that “these conditions caused the loss of hearing that I
experience.”
On October 19, 2005 the Office requested additional information. It provided
information to appellant about filing time limits under the Federal Employees’ Compensation
Act and requested an explanation of why the claim had not been made within three years of his
awareness of the relationship between his employment and his hearing loss. The Office
requested additional factual and medical evidence. It did not receive a response to this request in
the 30 days allotted.2
By decision dated December 23, 2005, the Office denied appellant’s claim on the
grounds that he had not provided sufficient evidence to establish that he had sustained an injury.
It noted that appellant had timely filed his claim for compensation. The Office found, however,
that he had not provided evidence sufficient to prove the occurrence of the alleged noise
exposure. It also found that there was no medical evidence diagnosing hearing loss or
connecting it to the claimed employment factor.
On August 17, 2006 appellant filed a request for reconsideration of his claim and
submitted a narrative statement together with medical and employment records that he had
recently received from the National Personnel Records Center. A certificate of medical
examination was completed at the time of appellant’s hire by the employing establishment on
January 17, 1955. This certificate, which was signed by a physician at Fort Randall Hospital,3
indicated that appellant’s hearing was normal (20/20) and that he had no evidence of disease or
injury in either ear. Driver qualification records from June 18, 1956 and January 28, 1957
indicated that his hearing was unchanged. A driver qualification record from March 9, 1960
indicated that appellant’s hearing had diminished to 15/20. Appellant alleged that sometime

2

Appellant presented evidence that he submitted a letter in November 2005 informing the Office that he had
requested his personnel files from the National Personnel Records Center and would provide further information as
soon as he received his file. This letter was not in the record at the time of the Board’s review.
3

The name of the physician is illegible.

2

during this period he contacted a doctor in Mitchell, SD about his hearing loss. He did not
remember the doctor’s name and did not keep records of the visit.
Appellant also provided two reports from federal employment-related medical
examinations that occurred in the mid 1980s. A March 22, 1985 letter from Dr. Roy L. DeHart,
Board-certified in occupational medicine, stated that appellant had “significant neurosensory
high frequency hearing loss” and that he should use ear protection when exposed to noisehazardous environments. An October 8, 1986 letter from Dr. G. Wayne Kelly, Board-certified in
occupational medicine, indicated that appellant should wear hearing protection when in high
noise-level environments.
By decision dated August 31, 2006, the Office denied appellant’s request for
reconsideration of its prior decision on the grounds that appellant had provided no new and
relevant evidence or legal contentions.
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.4 The Board may raise the issue on appeal
even if the Office did not base its decision on the time limitation provisions of the Act.5
For injuries occurring prior to September 7, 1974, the time limitation provisions of the
Act require that an injured employee file a claim for compensation within one year after the
injury.6 The one-year requirement may be waived provided the claim is filed within five years
and: (1) the failure to timely file was due to circumstances beyond the control of the employee;
or (2) the employee has shown sufficient cause or reason in explanation of the late filing and
there has been no material prejudice to the interest of the United States.7 An employee could be
entitled to medical benefits despite the failure to timely file a claim if written notice of injury
was filed in accord with 5 U.S.C. § 8119 or if the immediate supervisor had actual knowledge of
the injury within 48 hours after the occurrence of the injury.8
In a case involving a claim for an occupational illness, the time does not begin to run
until the claimant is aware, or reasonably should have been aware, of the causal relationship
between his condition and federal employment.9 In situations where the exposure to an injurious
employment factor continues after the employee gains such awareness, the time for filing a claim
4

See Charles W. Bishop, 6 ECAB 571 (1954).

5

Id.; Charles Walker, 55 ECAB 238 (2004).

6

5 U.S.C. § 8122 (1968). Section 8122 was amended as of September 7, 1974 to provide the current three-year
time limitation.
7

Id.; see also Allen E. Grether, 24 ECAB 76 (1972).

8

See, e.g., Ida Ambler, 25 ECAB 116 (1974).

9

William L. Gillard, 33 ECAB 265, 268 (1981).

3

begins to run on the date of the employee’s last exposure to those factors.10 The time limitations
do not run against an incompetent individual while he is incompetent and has no duly appointed
legal representative.11
ANALYSIS
Appellant alleged that, in his 13½ years at the employing establishment, from 1995 to
1968, he was regularly exposed to loud noise. He provided medical evidence showing a
diminishment in his ability to hear high frequencies between January 1955 and October 1986.
Appellant stated that he realized between approximately 1957 and 1960 that his hearing loss was
related to his employment. He alleged that the doctor he sought out for diagnosis and treatment
during that time confirmed that loss of the ability to hear certain high frequencies was generally
related to exposure to excessive amounts of noise. The Board finds that appellant was aware of
the relationship between his federal employment and his hearing loss by 1960. Because
appellant continued to be exposed to noise at the employing establishment until June 1968, when
he transferred to a different federal agency, the time limits on filing his claim did not begin to
run until the last date of his exposure. The Board finds that he was last exposed to the
employment factor of high levels of noise in June 1968.
The alleged occupational disease occurred before 1974, therefore, appellant had one year
from the time of his last exposure to the noise to file a claim. In his claim form, appellant stated
that he had a good reason for the delay in filing his claim. If good cause were shown and the
interests of the Federal Government were not prejudiced, the filing limitation could be extended
to five years. Appellant has claimed that the reason he delayed filing his claim was that he was
unaware that such claims could receive favorable determinations for compensation. The Board
has held that ignorance of the law and the benefits it provides is not a sufficient cause or reason
to delay filing of a claim.12 Accordingly, the Board finds that appellant has not provided
sufficient grounds for extending the filing limit to five years.
On the facts of this case, appellant should have filed his claim for hearing loss no later
than June 1969, one year after his last exposure to the noise. As he did not file a claim until
2005, it was not timely filed.
Incompetence of the employee will keep the filing limitations from running for the
duration of the incompetence. As appellant has not alleged any period of mental incompetence,
there is nothing to bar the running of the one year filing limit.
Appellant could still be eligible for medical benefits under the Act if he were able to
demonstrate that a written notice of injury had been filed in accordance with the Act or that his
immediate supervisor had actual knowledge of his condition within 48 hours of appellant’s
awareness that the condition was work related. He has provided any evidence that a written
10

Jaried M. Bailey, 26 ECAB 9 (1974).

11

Allen E. Grether, supra note 6.

12

William D. Goldsberry, 32 ECAB 536 (1981) (interpreting the pre1974 statute).

4

notice was ever filed with the employing establishment. Appellant alleged that he mentioned his
hearing loss on the job, but provided no details as to who he informed, what information he
conveyed or when this occurred. The Board finds that appellant has not provided sufficient
evidence to demonstrate that the employing establishment or his immediate supervisor had actual
knowledge that he had an on-the-job injury.
CONCLUSION
Appellant’s claim is barred by the applicable time limitation provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 31, 2006 and December 23, 2005 be modified to reflect
that appellant’s claim is barred by the time limitation provisions of the Act and affirmed as
modified.13
Issued: January 3, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

The Board’s decision in this case renders the reconsideration issue moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S POSTAL SERVICE, ST. JAMES PARK
STATION POST OFFICE, San Jose, Employer
__________________________________________

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

Docket No. 21-1106
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 July 12, 2021 appellant filed a timely appeal from a June 9, 2021 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 this case. 2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $24,136.16, for the period November 1, 2017
through April 24, 2021, for which she was without fault, because she concurrently received Social
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the June 9, 2021 merit decision. 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.

Security Administration (SSA) age-related retirement benefits while also receiving FECA wageloss compensation without an appropriate offset; and (2) whether OWCP properly denied waiver
of recovery of the overpayment.
FACTUAL HISTORY
On July 6, 1990 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained multiple injuries when attacked from behind by an
unknown female assailant when loading her mail pouch while in the performance of duty. She
stopped work on the date of injury. A July 25, 1990 nonfatal summary (NFS) notes appellant’s
retirement plan code as “K,” indicating her enrollment in the Federal Employees Retirement
System (FERS) and Federal Insurance Contribution Act. On July 31, 1990 OWCP accepted the
claim for multiple abrasions. Appellant remained off work and OWCP paid her total disability
compensation through April 17, 1991. She returned to full-time restricted duty on April 18, 1991.
On January 7, 1994 OWCP accepted a recurrence of disability.
On May 18, 1995 OWCP expanded acceptance of the claim to include displacement of
lumbar intervertebral disc, a cervical disc bulge, and a lumbar sprain. It subsequently expanded
acceptance of the claim to include adjustment disorder with depressed mood.
Following a period of intermittent, part-time light-duty work, appellant retired from the
employing establishment effective September 17, 1998.3 OWCP paid wage-loss compensation
benefits on the periodic rolls. 4
On December 3, 2013 OWCP issued a letter advising appellant to notify OWCP upon her
receipt of SSA retirement benefits. It related that section 8116(d)(2) of FECA (5 U.S.C.
§ 8116(d)(2)) required that a claimant’s continuing compensation benefits be reduced if he or she
began receiving SSA retirement benefits based on his or her age and federal service. OWCP noted
that it was notifying appellant of this requirement as she had recently attained 62 years of age, the
minimum age at which an individual is eligible to receive SSA retirement benefits. It noted that
failure to report receipt of such retirement benefits to OWCP could result in an overpayment of
compensation, which could be subject to recovery. Consequently, if appellant had been approved
for SSA retirement benefits, or were currently receiving SSA retirement benefits, to contact OWCP
immediately so that it could begin the process of making any necessary adjustments to h er
compensation benefits.
On January 7, 2021 OWCP provided SSA with a dual benefits calculation form. It listed
the computation period as November 22, 2013 to present. On March 11, 2021 OWCP received
the completed FERS/SSA dual benefits calculation form, wherein SSA calculated SSA benefit
rates with a FERS offset and without a FERS offset from November 2017 through December 2020.
3
On April 20, 1999 OWCP granted appellant a schedule award for 29 percent permanent impairment of the right
upper extremity and 33 percent permanent impairment of the right lower extremity. The period of the award ran for
185.52 weeks from June 2, 1997 through December 21, 2000. OWCP subsequently reinstated appellant on the
periodic rolls.
4

On March 2, 2012 OWCP changed appellant’s status code to PN, entitled to payment on periodic rolls as she
remained totally disabled and her condition was “not expected to improve.”

2

Beginning November 2017, the SSA rate with FERS was $1,174.00 and without FERS was
$624.10. Beginning December 2017, the SSA rate with FERS was $1,197.40 and without FERS
was $636.50. Beginning December 2018, the SSA rate with FERS was $1,230.90 and without
FERS was $654.30. Beginning December 2019, the SSA rate with FERS was $1,250.50 and
without FERS was $664.70. Beginning December 2020, the SSA rate with FERS was $1,266.70
and without FERS was $673.30.
On May 7, 2021 OWCP prepared a FERS offset calculation based on the SSA
documentation wherein it noted the calculation of appellant’s overpayment from November 1,
2017 through April 24, 2021. It determined that, during the period November 1 through 30, 2017,
she received an overpayment in the amount of $543.86. For the period December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $6,749.29. For the
period December 1, 2018 through November 30, 2019, she received an overpayment in the amount
of $6,938.21. For the period December 1, 2019 through November 30, 2020, appellant received
an overpayment in the amount of $7,068.22. For the period December 1, 2020 through April 24,
2021, she received an overpayment in the amount of $2,836.58. The total overpayment was
determined to be $24,136.16.
In a letter dated May 7, 2021, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related
retirement benefits were attributed to her years of federal service as an employee under FERS and
that portion required an offset of her FECA compensation benefits, in the amount of $593.40 every
28 days. OWCP indicated that, to account for her SSA offset, appellant’s FECA wage-loss
compensation would be adjusted to reflect a new net compensation amou nt of $2,494.25 effective
April 25, 2021.
On May 7, 2021 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $24,136.16 had been created because the
FERS/SSA offset was not applied to payments for the period November 1, 2017 through April 24,
2021 for this period. It determined that appellant was without fault in the creation of the
overpayment. OWCP requested that she submit a completed overpayment recovery questionnaire
(Form OWCP-20) to determine a reasonable repayment method and advised h er that she could
request a waiver of recovery of the overpayment. It further requested financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. OWCP advised appellant that it would deny waiver if
she failed to furnish the requested financial information within 30 days. It provided an
overpayment action request form and further notified her that, within 30 days of the date of the
letter, she could contest the overpayment and request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing. Appellant did not respond.
By decision dated June 9, 2021, OWCP finalized the May 7, 2021 preliminary
overpayment determination that appellant had received an overpayment of compensation in the
amount of $24,136.16 because it had failed to offset her compensation payments for the period
November 1, 2017 through April 24, 2021 by the portion of her SSA benefits that were attributable
to federal service. It further found that she was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment because the evidence of record failed to establish
that recovery of an overpayment would defeat the purpose of FECA as she had not responded to

3

the request for financial information. OWCP further found that recovery of the overpayment
would not be against equity and good conscience as appellant had no t shown that she would
experience severe financial hardship in attempting to repay the debt, and that she had not asserted
detrimental reliance. It directed recovery of the overpayment by lump sum payment of $24,136.16.
Appellant was advised by OWCP that if she was unable to refund the entire amount that she should
contact OWCP if she wished to enter into an installment payment program.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 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. 6
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-related benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA 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. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $24,136.16 for the period November 1, 2017 through April 24,
2021, for which she was without fault, as she concurrently received SSA age-related retirement
benefits and FECA wage-loss compensation without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to f ederal service for the same period. 9 The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to her federal service from November 1, 2017 through April 24, 2021.
Consequently, the fact of overpayment has been established.

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); E.R., Docket No. 21-0133 (issued November 15, 2021); M.R., Docket No. 20-1622 (issued
June 30, 2021); S.S., Docket No. 19-1945 (issued March 25, 2021); see S.O., Docket No. 18-0254 (issued August 2,
2018); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (issued February 3, 1997).

9

See supra note 8; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795
(issued January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).

4

To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were 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 age-related retirement benefits
rates with and without FERS during the specific period November 1, 2017 through April 24, 2021.
OWCP provided its calculation for each relevant period based on a FERS offset calculation
worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2017 through April 24, 2021 and finds that an overpayment of compensation
in the amount of $24,136.16 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is with out fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10 Section 10.438 of OWCP regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.11
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.12
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current 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. 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. 14
OWCP’s procedures provide that the assets must not exceed a resource base o f $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for
10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.438.

12

Id. at §§ 10.434-10.437.

13

Id. at § 10.436.

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2020).

5

each additional dependent. 15 An individual’s liquid assets include, but are not limited to, cash and
the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. Nonliquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two allowed per
immediate family, retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry,
and artwork. 16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment 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. 17 Appellant, however, had the responsibility to provide the appropriate financial
information and documentation to OWCP, but failed to do so.18
In its preliminary overpayment determination dated May 7, 2021, OWCP explained the
importance of providing the completed Form OWCP-20 along with supporting financial
documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish
the requested financial information within 30 days. Appellant did not respond. As she did not
submit a completed Form OWCP-20 with supporting financial documentation of her income,
assets, and expenses, OWCP could not determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.19
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment of compensation.
On appeal, appellant contends that recovery of the overpayment would create financial
hardship as she remained totally disabled due to both occupational and nonoccupational
conditions. As noted above, she did not submit the financial information necessary for OWCP to
consider waiver of recovery of the overpayment.

15

Id. at Chapter 6.400.4a(2).

16

Id. at Chapter 6.400.4b(3)(a), (b).

17

20 C.F.R. § 10.436.

18

Id. at § 10.438.

19

P.N., Docket No. 20-1159 (issued April 20, 2021); see S.W., Docket No. 20-0544 (issued September 21, 2020).

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$24,136.16 for the period November 1, 2017 through April 24, 2021, for which she was without
fault, because she concurrently received SSA age-related retirement benefits while also receiving
FECA benefits without an appropriate offset. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment. 20
ORDER
IT IS HEREBY ORDERED THAT the June 9, 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

20

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. D.J., Docket No. 19-1163 (issued September 22, 2020); J.R.,
Docket No. 19-1418 (issued March 4, 2020). As OWCP did not direct recovery from appellant’s continuing
compensation benefits, the Board does not have jurisdiction over the method of recovery of the overpayment in this
case. 20 C.F.R. § 10.441(a).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Honolulu, HI, Employer
__________________________________________

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

Docket No. 13-305
Issued: May 22, 2013

Case Submitted on the Record

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

JURISDICTION
On November 26, 2012 appellant filed a timely appeal from an October 22, 2012 Office
of Workers’ Compensation Programs’ (OWCP) decision denying his claim for an employmentrelated injury. 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 met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to a September 12, 2012 employment incident,
as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 22, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 17, 2012 appellant, then a 62-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging a left shoulder rotator cuff tear as a result of lifting and
loading bundles in the performance of duty on September 12, 2012.
In a September 17, 2012 report, Dr. Calvin S. Oishi, a Board-certified orthopedic
surgeon, opined that appellant was totally disabled for the period September 14 through
December 20, 2012. On September 19, 2012 he opined that appellant was totally disabled for
the period September 14 to 19, 2012. Dr. Oishi released him to light-duty work effective
September 20, 2012 with the following restrictions: no lifting more than two pounds with
injured left arm.
By letter dated September 20, 2012, OWCP notified appellant of the deficiencies of his
claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a September 14, 2012 report from Dr. Oishi who noted
that appellant complained of left shoulder pain of several months’ duration. Upon examination,
Dr. Oishi found positive impingement and Hawkins’ sign.
A magnetic resonance imaging (MRI) scan of the left shoulder dated September 14, 2012
revealed mild rotator cuff tendinosis.
On September 17, 2012 Dr. Oishi reviewed the September 14, 2012 MRI scan and
diagnosed rotator cuff tear. He advised that appellant was a candidate for repair.
Appellant submitted a narrative statement dated September 24, 2012 reiterating that he
was filing a claim for a traumatic injury which he sustained while loading midweek bundles in a
postal truck. While he was transferring the bundles to the front, he felt a sharp pain in the left
shoulder. Appellant reported that midweek newspaper bundles weigh approximately 15 pounds.
He indicated that he did not have any similar disability or symptoms before the injury.
By decision dated October 22, 2012, OWCP denied the claim finding that the evidence
submitted was insufficient to establish causal relationship between appellant’s condition and the
September 12, 2012 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).

2

and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
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.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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 by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP accepted that the employment incident of September 12, 2012 occurred at the
time, place and in the manner alleged. The issue is whether appellant sustained an injury in the
performance of duty on September 12, 2012. The Board finds that the medical evidence of
record is not sufficient to establish his claim for a compensable employment injury.
Dr. Oishi diagnosed rotator cuff tear and opined that appellant was totally disabled for the
period September 14 through December 20, 2012. Although Dr. Oishi provided a firm
diagnosis, he did not provide medical rationale explaining the mechanism of how lifting and
loading bundles on September 12, 2012 resulted in appellant’s left shoulder condition. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.8 Dr. Oishi
failed to adequately address the issue of causal relationship between the September 12, 2012
employment incident and the diagnosed condition. The Board finds that appellant did not meet
his burden of proof with the submission of Dr. Oishi’s reports.
The September 14, 2012 MRI scan is diagnostic in nature and therefore does not address
causal relationship. As such, the Board finds that it is insufficient to establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

8

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

3

the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. As
appellant has not submitted any rationalized medical evidence to support his allegation that he
sustained an injury causally related to a September 12, 2012 employment incident, he has failed
to meet his burden of proof to establish a claim for compensation.
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 10.607.10
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on September 12, 2012, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2013
Washington, DC

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

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

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

9

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

10

Should appellant wish to claim his condition is an occupational disease, as defined under 20 C.F.R. § 10.5(q),
due to factors of his federal employment occurring in more than one day or shift, he may file such claim with
OWCP.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF AGRICULTURE,
OFFICE OF THE INSPECTOR GENERAL,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-640
Issued: December 17, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2010 appellant filed a timely appeal from a November 24, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the overpayment issues in this case.
ISSUES
The issues are: (1) whether the Office properly found a $21,304.80 overpayment of
compensation for the period February 26, 2004 through September 14, 2008 due to the payment
of augmented compensation; (2) whether the Office properly found that appellant was at fault in
creating the overpayment and therefore not entitled to waiver; and (3) whether the Office
properly determined that the overpayment should be recovered by deducting $600.00 every 28
days from her continuing compensation.
On appeal, appellant asserts that her son was a full-time student and eligible dependent
during the period of the overpayment and provided additional information to verify his
dependant status. She also asserted that the deduction from her continuing compensation created

a significant hardship for her and her family and submitted additional documentation concerning
her current expenses. Appellant also indicated that a new vehicle was purchased on
October 5, 2009.
FACTUAL HISTORY
The Office accepted that on July 31, 2001 appellant, then a 52-year-old contract
specialist, sustained a lumbar sprain/strain after she tripped over binders placed on the edge of a
workstation.1 Appellant stopped work on August 1, 2001. Beginning in late January 2002, she
received total disability compensation on the periodic rolls at the augmented 75 percent rate as
she had a dependent son, born on February 26, 1986. Appellant returned to work 16 hours a
week beginning September 15, 2008 and 20 hours a week beginning October 26, 2008. The
Office adjusted her compensation accordingly.
The record reflects that appellant submitted affidavits of earnings and employment (Form
CA-1032) on December 20, 2003, October 19, 2004, November 13, 2005, November 20, 2006,
December 4, 2007 and February 18, 2008 listing her son as a dependent. The forms explained
the circumstances under which she would be entitled to augmented compensation for her
dependent child. Appellant was advised that compensation for a dependent child may continue
after the 18th birthday only if the dependent was unmarried and either incapable of self-support
due to a mental or physical disability or a full-time student. The forms noted that compensation
was payable until age 23 for an unmarried child who had reached age 18, had not completed four
years of education beyond high school and was a full-time student at an approved educational
institution. Appellant’s son turned 18 on February 26, 2004.
In a December 12, 2007 letter, the Office reiterated the circumstances under which
augmented compensation for a dependant child could continue after the 18th birthday. In her
February 18, 2008 Form CA-1032, appellant claimed compensation for student status for her
son. She stated that her son had attended jobs corps school on a full-time basis since
January 15, 2008. Appellant’s son’s enrollment in the program was confirmed by a career
development counselor at the Woodstock Job Corps Center on February 19, 2008. The
counselor noted that it was open enrollment and that a completion date of the program was
undetermined.
Appellant received augmented compensation until September 15, 2008 when the Office
adjusted her compensation to the basic rate.
On April 1, 2009 the Office advised appellant of its preliminary determination of a
$21,309.20 overpayment of compensation as she received augmented compensation for the
period February 27, 2004 through September 14, 2008 while she had no eligible dependents. In
attached worksheets, it calculated that she received $190,205.24 in compensation from
February 27, 2004 through September 14, 2008 but was only entitled to $168,896.04, a
difference of $21,309.20. The Office noted that appellant’s son reached age 18 on February 26,
2004 but that there was no evidence that he was a full-time student or incapable of self-support.
1

The Office had also accepted that on April 30, 2001 appellant sustained a lumbar sprain/strain while lifting
luggage up a steep incline while on government travel. This case was doubled into the current file.

2

It found her at fault in creating the overpayment because she was aware or should have been
aware that she was not entitled to augmented compensation when she had no eligible dependents
after February 26, 2004.
On April 3, 2009 appellant requested a prerecoupment hearing. In an April 3, 2009 letter,
she verified that her son reached age 18 on February 26, 2004 and stated that he was a full-time
student during the overpayment period. Appellant advised that he completed a high school
equivalency certificate from the University of the District of Columbia through an adult
education program on June 25, 2004 and attached a copy of the certificate. She stated that he
was enrolled in the University of the District of Columbia in August 2005 and joined the
Department of Labor Job Corps in January 20072 and obtained instruction in Culinary Arts.
Appellant noted that he was living with her and she was supporting him in his educational
experiences.
In an April 3, 2009 overpayment recovery questionnaire, appellant indicated that her total
monthly income was $2,492.10 and her total monthly expenses were $2,416.00. The monthly
expenses were comprised of: rent $970.00, food $625.00, clothing $75.00, utilities $421.00,
other expenses $275.00, monthly installments to Capitol One Credit Card $25.00 and First
Premiere Credit Card $25.00. Appellant indicated that she had no assets and had $178.00 in her
checking account. She stated that she used her income to support her son and that she did not
intend to mislead anyone.
In a July 27, 2009 telephonic hearing, appellant stated that her son had been identified as
severely socially and emotionally disabled (SESD-Level 5) at age seven. She noted the type of
schooling he had as a result of his mental disability and behavioral issues and indicated that he
quit school between the ages of 16 and 17 and elected to get his GED, which he received on
June 25, 2004. Appellant stated that her son was enrolled at the University of the District of
Columbia during the fall 2004 semester as a full-time student and after he finished the 2004-05
school year, he enrolled in summer school. She indicated that she was unsure of his student
status during the fall 2005 semester. Appellant testified that her son was enrolled in the Job
Corps in January 2007, but was unsure how long that lasted as the Job Corps released him. She
indicated that she continued to support her son and that she considered him a dependent based on
his inability to function and his emotional problems. Appellant advised that she now worked
about 52 hours every pay period and earned approximately $2,600.00 ($1,533.00 from workers’
compensation and $1,150.00 from her employment). She stated that her current rent was
$1,020.00, but indicated that she was getting married and her rent would increase to $2,800.00 in
September 2009 when she moved to a larger apartment with her new husband. Appellant
advised that her monthly expenses were: $600.00 food, $75.00 clothing, $300.00 miscellaneous.
She noted that she had no assets and that she paid about $130.00 monthly for credit cards.
Appellant stated that she was considering getting a new car and was in the process of buying a
home. She was advised of additional financial evidence needed regarding repayment and
evidence needed about her son’s status.

2

This date was also noted as January 2008 in other correspondence from appellant dated August 13, 2009.

3

In an August 13, 2009 letter, appellant stated that her son was a full-time student at the
University of the District of Columbia from August 25, 2004 through May 2005, but she was
unable to get a copy of his transcript due to an unpaid balance owed to the school. She indicated
that her son was also enrolled with the Job Corps from January to June 2008, but she had not
requested his records. Appellant indicated that, during the three-year period, her son worked
part-time with various companies. She advised that the facilities which rendered treatment or
services to her son either would not provide records of services provided or were closed for
summer break and would not reopen until September 2009. Appellant stated that she was unable
to repay the debt due to her current and anticipated expenses. She noted that she forgot to
include the monthly payments of $25.00 to Peebles and $75.00 to Kay Jewelers. Appellant
stated that she was going to settlement on a new home on August 21, 2009 and that her monthly
mortgage payment would be $3,140.23, monthly home owner association fees, monthly Front
Foot Benefit Fee of $54.17, and that she would also be responsible for paying bills on electricity,
gas, water and cable, of which she had no idea of the amount. She submitted a marriage
certificate indicating that she got married on August 8, 2009, a July 15, 2009 Sprint bill totaling
$638.49, and a copy of her HUD-1 statement, which indicated approximate amounts of a
monthly mortgage of $3,140.23. Appellant also submitted copies of various bills on which
balances were owed. This also included a copy of her government services account statement
showing $447.90 due and a July 2009 statement for her First Premier Bank card.
By decision dated November 24, 2009, an Office hearing representative affirmed as
modified the overpayment of compensation in the amount of $21,304.80 for the period
February 26, 2004 through September 14, 2008 for which appellant was at fault. A corrected
worksheet indicated that, from February 26, 2004 through September 14, 2008, appellant was
paid $190,165.95 at the augmented rate but should have been paid $168,861.15, which resulted
in $21,304.80 overpayment. The hearing representative further found a repayment of the
overpayment at $600.00 every 28 days was reasonable and appropriate as appellant did not
submit any current expenses or any financial information about her spouse which could account
for the remaining amount of income after the mortgage.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.4 Section 8129(a) of the Act provides, in
pertinent part, 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.5
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay. Section 8110 of the Act provides that a claimant is entitled to
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

Id. at § 8129(a).

4

augmented compensation to three fourths of the employee’s rate of monthly pay if he or she has
a dependent.6 Section 8110(a)(3) of the Act provides that a child is considered a dependent if he
or she is under 18 years of age, is over 18 but is unmarried and incapable of self-support because
of a physical or mental disability or is an unmarried student, as defined under section 8101(17).7
The Act provides that compensation will continue at the augmented rate if the child has reached
18 years of age and is a student. Section 8101(17) of the Act defines a student as an individual
under 23 years of age who has not completed four years of education beyond the high school
level and who is regularly pursuing a full-time course of study or training at a school, college or
university or other educational or training institute an additional type of educational or training
institute as defined by the Secretary. The federal regulations provide that an additional type of
educational or training institute means a technical, trade, vocational, business, or professional
school accredited or licensed by the federal or a state government, that provides courses of not
less than three months duration and prepares the individual for a livelihood in a trade, industry,
vocation or profession.8 If a claimant receives augmented compensation during a period where
he or she has no eligible dependents, the difference between the compensation to which he or she
was entitled at the two-thirds compensation rate and the augmented compensation received at the
three-fourths rate constitutes an overpayment of compensation.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation from
February 26, 2004 to September 14, 2008. Appellant’s son, born February 26, 1986, turned 18
on February 26, 2004. The Office continued to issue his compensation at the augmented rate
through September 14, 2008. It found that appellant’s son had turned 18 and there was no
evidence that he was either incapable of self-support or a full-time student.
Despite appellant’s claims to the contrary, there is no evidence to support that her son
was enrolled full time as a student. While she claimed her son was a student from February 26,
2004 through September 14, 2008, there is no evidence to support that assertion. First,
appellant’s son was not enrolled in high school as a student at the beginning of the overpayment
period as he received his high school equivalency degree on June 25, 2004 through an adult
education program. There is no evidence that the adult education program the son attended
through the University of District of Columbia meets the full-time requirement under the Act
necessary for him to qualify as a student.10 Other than the diploma, there are no other school
records, grades, etc. The current record is also void of any evidence that appellant’s son was
6

Id. at § 8110.

7

Id. at § 8110(a)(3).

8

20 C.F.R. § 10.5(aa)(1).

9

5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

10

20 C.F.R. § 10.5(aa)(1) provides, in pertinent part, that the educational institution attended by the student must
be accredited or licensed by the United States Government or a State Government or any political subdivision
thereof. See also G.H., (Docket No. 09-606, issued December 18, 2009) (the Board found an overpayment of
compensation where appellant received augmented compensation during a period where his unmarried child over
the age of 18 attended a nonaccredited education institution).

5

enrolled as a full-time student at the University of District of Columbia beginning in
August 2005. Although appellant alleges her son was a full-time student, she has provided no
transcripts, receipts or other evidence of his attendance. While she submitted evidence on appeal
pertaining to her son’s education during this period, the Board is precluded from reviewing this
evidence for the first time on appeal.11
Appellant also claimed her son joined the Job Corps in January 2007 (or January 2008) to
receive instruction in culinary arts. The record reflects only that her son was enrolled as of
February 19, 2008 at the Woodstock Job Corps Center. The dates of enrollment were not
provided and the completion of course date was undetermined. This evidence is not sufficient to
verify appellant’s son’s attendance for any period of study. There is no other evidence
documenting that her son was pursuing a regular course of study or training as required by the
Act’s regulations.12 As appellant’s son does not meet the requirements of an eligible dependent
under the Act, an overpayment of compensation was created effective February 26, 2004.
The Office provided a detailed accounting of the amount of compensation appellant
should have received at the statutory 66 2/3 percent rate since there were no qualified
dependents. The worksheets reflect that, from February 26, 2004 through September 14, 2008,
she was paid $190,165.95 at the augmented rate but should have been paid $168,861.15. This
amounts to an overpayment amount of $21,304.80. Thus, the Board finds that the Office’s
calculation of a $21,304.80 overpayment was correct. Accordingly, the Office properly
determined the fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless 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.13
Section 10.433 of the implementing regulations specifically provide that the Office may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.14 On the issue of fault, 20 C.F.R. § 10.433(a) provides
that an individual will be found at fault if he or she has done any of the following: (1) made an
incorrect statement as to a material fact which he or she knew or should have known to be
incorrect; (2) failed to provide information which he or she knew or should have known to be
material; or (3) accepted a payment which he or she knew or should have known was incorrect.

11

The Board may not consider new evidence for the first time on appeal that was not before the Office at the time
it issued its final decision. See 20 C.F.R. § 501.2(c).
12

5 U.S.C. § 8101(17).

13

5 U.S.C. § 8129; see P.M., 60 ECAB ___ (Docket No. 07-2169, issued March 3, 2009); Linda E. Padilla, 45
ECAB 768 (1994).
14

5 U.S.C. § 10.433(a).

6

The regulations further provide that each recipient of compensation benefits is
responsible to ensure that payments he or she receives from the Office are proper.15 Whether or
not the Office determines that an individual was at fault with respect to the creation of an
overpayment depends on the circumstances surrounding the overpayment.16
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion, that she accepted payments which she knew or should have known to be
incorrect.17
For the Office to establish that appellant was at fault in creating the overpayment, it must
show that, when she received the compensation in question, she knew or should have known that
the payment was incorrect.18 With respect to whether an individual is with fault, section
10.433(b) of the Office’s regulations provide that whether the Office determines that an
individual was with fault with respect to the receipt of an overpayment depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he or she was
being overpaid.19
The Board finds that appellant was at fault in creating the overpayment. The CA-1032
forms provided information notifying her as to the status of dependents for augmented
compensation. Appellant was advised as to the requirements for claiming a child as a dependent
and informed that a claimant with no dependents was paid at the 66 2/3 percent basic rate, not
the 75 percent augmented rate. The evidence establishes that, when placed on compensation, she
received it at the augmented rate as her son was under the age of 18. While appellant testified
that she did not intend to mislead the Office as she continued to provide support for her son, she
knew or reasonably should have known that she was not entitled to augmented compensation
when her son turned 18 years of age. As noted above, her son did not qualify as a full-time
student. Additionally, there is no evidence to support that appellant’s son was unable to support
himself because of a mental or physical disability. Appellant indicated in her August 13, 2009
letter that during the three-year period, her son worked part time with various companies. While
she may have been unclear as to her son’s status as a student, she knew or should have known
that the payments made at the augmented rates were incorrect in view of the cautionary language
in the CA-1032 forms that she signed. Appellant is at fault in creating the overpayment and is
not eligible for waiver of recovery. The Office is required by law to recover the overpayment.

15

Id.

16

Id. at § 10.433(b).

17

Steven R. Cofrancesco, 57 ECAB 62 (2006).

18

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

19

20 C.F.R. § 10.433(b).

7

Appellant contends on appeal that she did not mislead the Office and submitted some
information regarding her son’s schooling. As noted above, the Board is precluded from
reviewing evidence for the first time on appeal.
LEGAL PRECEDENT -- ISSUE 3
Whenever an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to 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
resulting hardship upon such individual.20
ANALYSIS -- ISSUE 3
The Board finds that the Office properly directed recovery of the overpayment at the rate
of $600.00 every four weeks from appellant’s continuing compensation.
In setting the rate of recovery at $600.00 every four weeks, the hearing representative
noted that appellant did not provide sufficient documentation for various expenses such as food,
miscellaneous expenses, and her new mortgage. The hearing representative noted that, even if
the amount of the new mortgage were accepted, there was insufficient evidence documenting
other expenses. The Office had insufficient documentation regarding appellant’s current
monthly household expenses or any of her household bills for her new home. It is appellant’s
responsibility to provide information about income, expenses and assets.21 Section 10.441(a) of
the Office’s regulations, as noted, directs the Office to take certain matters into consideration in
establishing the repayment schedule, including 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.22 The Office was disadvantaged by appellant’s failure to timely
provide financial documentation. In view of these circumstances, the Office properly considered
the appropriate factors in determining the recovery of the overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation during the period February 26, 2004 to September 14, 2008, in the
amount of $21,304.80. The Board further finds that she was with fault in creating the
overpayment and that the Office properly set the rate of recovery from continuing compensation.

20

20 C.F.R. § 10.441(a); see Steven R. Cofrancesco, supra note 15.

21

Id. at § 10.438.

22

Id. at § 10.441(a).

8

ORDER
IT IS HEREBY ORDERED THAT the November 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0229
Issued: September 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 12, 2014 appellant filed a timely appeal from a May 15, 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 is entitled to compensation for locality pay beginning on
October 9, 2011 as a result of her accepted emotional condition.
On appeal appellant asserts that, because the New York district office could not
accommodate her medical restrictions, she felt obligated to accept a position in the Boston
district office, which had a lower locality pay.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 18, 2011 appellant, then a 55-year-old claims examiner, filed an occupational
disease claim alleging that factors of her federal employment caused stress-related conditions
including panic attacks, anxiety, and depression. She stopped work on January 3, 2011 and
submitted factual and medical evidence to support her claim.
OWCP initially denied the claim on March 14, 2011. On July 12, 2011 an OWCP
hearing representative remanded the case for further development. Appellant accepted a transfer
to the Boston district office and began work there on October 11, 2011 as a rehabilitation
specialist with no loss in pay.2 The employing establishment indicated that the reassignment was
the result of her request for reasonable accommodation. OWCP again denied the claim on
November 2, 2011.
By decision dated February 13, 2012, an OWCP hearing representative determined that
appellant had established two compensable factors of employment: an increased workload and
dealing with difficult claimants. The case was remanded for review of the medical evidence to
determine if the accepted employment factors caused her emotional condition. On March 2,
2012 OWCP accepted the condition of major depression, recurrent episode, severe without
mention of psychotic behavior. Appellant was compensated for wage loss from January 14 to
October 8, 2011, including locality pay for the New York City area.
On September 25, 2013 appellant filed a CA-7, claim for compensation, for loss of
locality pay for the period October 9, 2011 to September 25, 2013. The record reflects that
appellant was a Grade 12 Step 7 claims examiner in New York, and transferred to Boston,
effective October 9, 2011, at the same grade and step. For the year 2011, the record reflects that
the base pay for a Grade 12 Step 7 was $72,326.00. The locality pay for the New York area was
28.72 percent, which yielded a Grade 12 Step 7 salary of $93,101.00. The locality pay for the
Boston area was 24.8 percent for a Grade 12 Step 7 salary of $90,265.00.
In an October 25, 2013 statement, appellant indicated that, upon the recommendation of
her psychiatrist, she initiated disability retirement in 2011 but also searched for a job that would
accommodate her restrictions and agreed to accept a position in Boston as a rehabilitation
specialist. She stated that she relocated at her own expense and, because she continued to have
expenses in the New York area, she requested the difference in locality pay.
By decision dated November 19, 2013, OWCP denied appellant’s claim for additional
locality pay for the period October 9, 2011 through September 25, 2013. Appellant requested a
review of the written record and, in a May 15, 2014 decision, an OWCP hearing representative
affirmed the November 19, 2013 decision.

2

The pay period began on October 9, 2011. Appellant had returned to part-time light-duty work on
June 17, 2011. She last worked at the employing establishment in New York on October 7, 2011.

2

LEGAL PRECEDENT
OWCP procedures indicate that when an injured employee is reemployed in a new locale
with a lower percent of locality pay than the job held on the date of injury, or without the cost-ofliving allowance, the employee may be paid less than previously even if reemployed at the same
grade and step. However, the current pay rate for the job and step when injured should reflect
the pay in the new locale, not the original one.3 The procedures further explain that the
employee is not losing net pay if reemployed at a lower locality pay rate since the cost of living
is less in the new location, as represented by the difference in locality pay.4
ANALYSIS
In the instant case, OWCP accepted that appellant, a Grade 12 Step 7 claims examiner in
the New York district office, sustained an employment-related emotional condition and paid her
appropriate compensation through October 8, 2011, when she transferred to the Boston district
office as a rehabilitation specialist at the same grade and step. Appellant was offered the Boston
position because it comported with restrictions provided by her psychiatrist, and she relocated at
her own expense. She thereafter filed a claim for the difference in locality pay in the New York
and Boston areas, beginning October 9, 2011.
As noted above, OWCP procedures provide that when an injured employee is
reemployed in a new locale, the current pay rate for the job and step when injured should reflect
the pay in the new locale, even if the locality pay is less than at the previous location. The
procedures explain that the employee is not losing net pay if reemployed at a lower locality pay
rate because, as reflected in “locality pay,” the cost of living is less in the new location.5
There is no evidence of record to support appellant’s argument that she was obligated to
accept the position in Boston. The Board finds that, upon her reemployment in Boston in
October 2011, at the same step and grade, appellant would be entitled to the locality pay of the
Boston area and not locality pay for the New York area where she was previously employed.
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 is not entitled to additional locality pay as a result of her
accepted emotional condition.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.4.e(1) (June 2013).
4

Id.

5

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.6
Issued: September 20, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

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

4