K.W. and Department of Defense (Board decision, October 18, 2012)

ECAB final decision on the merits. The Board affirmed OWCP's January 20, 2012 suspension of K.W.'s compensation. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

K.W., a Department of Defense employee, did not return a requested Form CA-1032 reporting earnings and other information. The Board found that OWCP properly suspended compensation for that failure. It affirmed the suspension decision.

Decision snapshot

• Authority: Required earnings disclosure.
• Outcome: Compensation suspension affirmed.
• Key point: Failure to submit the requested form justified suspension.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.W., Appellant
)
)
and ) Docket No. 12-1484
) Issued: October 18, 2012
DEPARTMENT OF DEFENSE, CAMP
)
LEJEUNE, North Carolina, Employer
)
__________ )

Appearances: Case Submitted on the Record
Ernest J. Wright, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On June 28, 2012 appellant, through her attorney, filed a timely appeal of the January 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) which suspended her compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly suspended appellant’s compensation for failing to submit a Form CA-1032, as requested.

FACTUAL HISTORY

On December 1, 2010 appellant, then a 39-year-old language arts teacher, filed an occupational disease claim alleging that on March 5, 2008 her asthma and allergies were caused by her exposure to mold in her classroom. She stopped work on November 8, 2010. By letter dated May 27, 2011, OWCP accepted appellant’s claim for temporary aggravation of allergic rhinitis and extrinsic asthma. It paid wage-loss compensation for temporary total disability.

1
5 U.S.C. § 8101 et seq.
On December 1, 2011 OWCP informed appellant that federal regulations required her to provide an affidavit of any earnings or employment during the previous year, and that a Form CA-1032 was enclosed for that purpose. It notified her that she had to completely answer all questions and return the statement within 30 days, otherwise her benefits would be suspended. The Form CA-1032 was sent to her address of record in North Carolina. No response was received.

In a January 20, 2012 decision, OWCP suspended appellant’s entitlement to compensation for failing to submit the Form CA-1032, as requested.2 It found that she did not reply to its December 1, 2011 correspondence. OWCP further noted that, when appellant completed the Form CA-1032, her compensation benefits would be restored retroactively, if entitled to benefits.

LEGAL PRECEDENT

Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled employee to report her earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies. Pursuant to this authority, as well as her authority under 5 U.S.C. § 8149 to prescribe rules and regulations necessary for the administration and enforcement of FECA, the Secretary has promulgated the following regulations at 20 C.F.R. § 10.528:

“OWCP periodically requires each employee who is receiving compensation benefits to complete an affidavit as to any work, or activity indicating an ability to work, which the employee has performed for the prior 15 months. If an employee who is required to file such a report fails to do so within 30 days of the date of the request, his or her right to compensation for wage loss under 5 U.S.C. [§] 8105 [total disability] or [§] 8106 [partial disability] is suspended until OWCP receives the requested report. At that time, OWCP will reinstate compensation retroactive to the date of suspension if the employee remains entitled to compensation.”

ANALYSIS

On December 1, 2011 OWCP provided appellant with a Form CA-1032 and explained that federal regulations required her to complete it and provide information on any earnings of employment over the prior 15 months. It properly notified appellant that if she did not completely answer all questions and return the statement within 30 days, her benefits would be suspended and that once she completed the form compensation benefits would be reinstated if she were entitled to receive any. The form was sent to her address of record in North Carolina.3

2
In a prior decision dated December 7, 2011, OWCP terminated appellant’s wage-loss compensation effective December 18, 2011 on the grounds that she refused an offer of suitable work under 5 U.S.C. § 8106(c). As the December 7, 2011 decision was issued more than 180 days prior to the filing of the current appeal, the Board has no jurisdiction to review it. See 20 C.F.R. § 501.3(e). 3 Under the mailbox rule, it is presumed, absent evidence to the contrary, that notice mailed to an individual in the ordinary course of business was received by that individual. The presumption arises when the record shows that the notice was properly addressed and mailed. See Levi Drew, Jr., 52 ECAB 442 (2001); Kimberly A. Raffle, 56 ECAB 243 (1999).

2
Appellant did not return the form within 30 days as requested. The Board finds, therefore, that OWCP properly suspended her right to compensation for wage loss under section 10.528 of the implementing regulations.4

On appeal, appellant submitted new evidence. The Board, however, cannot consider evidence that was not before OWCP at the time of the final decision.5 Appellant may resubmit this evidence and legal contentions with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP properly suspended appellant’s compensation for failing to submit a Form CA-1032, as requested.

ORDER

IT IS HEREBY ORDERED THAT the January 20, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 18, 2012
Washington, DC

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

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

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

4
20 C.F.R. § 10.528; see F.D., Docket No. 08-2499 (issued September 9, 2009).
5
See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3