V.R. and Department of the Interior, Bureau of Indian Affairs, Billings, MT (Board decision, February 26, 2013)

ECAB final decision. The Board affirmed OWCP’s October 3, 2012 suspension of V.R.’s wage-loss benefits for failing to submit a requested earnings report. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

V.R., a Bureau of Indian Affairs equipment operator, received wage-loss benefits after an accepted 2002 work injury. OWCP requested a Form EN1032 reporting his work and earnings and warned that benefits could be suspended if the form was not returned within 30 days. V.R. did not submit it before OWCP suspended his wage-loss benefits on October 3, 2012. The Board affirmed the suspension under the reporting regulation. OWCP told him it would restore compensation retroactively when he completed the form. The regulation separately conditions restoration on continued entitlement. The official PDF prints the docket as 13-130; the listing and file URL use 13-0130.

Decision snapshot

• Authority: Earnings reporting, 5 U.S.C. § 8106(c) and 20 C.F.R. § 10.528.
• Outcome: October 3, 2012 wage-loss suspension affirmed.
• Key point: The required report was not received within the stated 30-day period.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
V.R., Appellant
)
)
and ) Docket No. 13-130
) Issued: February 26, 2013
DEPARTMENT OF THE INTERIOR, BUREAU
)
OF INDIAN AFFAIRS, Billings, MT, Employer )
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On October 22, 2012 appellant filed a timely appeal from an October 3, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2

1
5 U.S.C. § 8101 et seq.
2
On appeal appellant notes that he was late and lost his file. He submitted a completed Form EN1032 subsequent to the October 3, 2012 decision and with his appeal. However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); 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).
ISSUE

The issue is whether OWCP properly suspended appellant’s compensation benefits for failure to submit an EN1032 form when requested.

FACTUAL HISTORY

On August 8, 2002 appellant, then a 53-year-old equipment operator, sustained a fractured vertebra and broken arm on August 8, 2002 when he fell off a water wagon. OWCP accepted the claim for a right forearm fracture and C2 fracture. It expanded the claim to include cervical spondylosis without myelopathy. Appellant received wage-loss compensation and medical benefits and was placed on the periodic rolls by letter dated October 17, 2002. He had regularly filed EN1032 forms since being placed on the periodic rolls.

On August 15, 2012 OWCP, in the regular course of business, asked appellant to complete a Form EN1032 within 30 days to provide information regarding his earnings from the prior reporting period. Appellant was advised, as he was regularly advised, that his benefits would be suspended pursuant to 20 C.F.R. § 10.528 if a completed EN1032 form was not received by OWCP within 30 days. No timely response was received.

By decision dated October 3, 2012, OWCP suspended appellant’s wage-loss benefits effective October 3, 2012 because he did not submit a complete Form EN1032, as requested. It informed him that, when he completed the EN1032 form, his compensation would be restored retroactively from the date of suspension.

LEGAL PRECEDENT

FECA authorizes the Secretary of Labor to require a partially disabled employee to report his or her earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies.3

Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt of compensation benefits must complete an affidavit as to any work or activity indicating an ability to work which the employee has performed for the prior 15 months.4 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 is suspended until OWCP receives the requested report.5 At that time, OWCP will reinstate compensation retroactive to the date of suspension if the employee remains entitled to compensation.6

3
5 U.S.C. § 8106(c).
4
20 C.F.R. § 10.528.
5
See Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53 ECAB 305 (2002).
6
Supra note 3.

2
ANALYSIS

OWCP requested that appellant submit an EN1032 form with respect to his employment activity performed for the prior 15 months. It requested the information by letter dated August 15, 2012 and advised him to submit the form within 30 days or his compensation could be suspended. The record establishes that appellant did not respond prior to October 3, 2012. Based on the evidence of record, OWCP properly suspended appellant’s compensation effective October 3, 2012, pursuant to 20 C.F.R. § 10.528.

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 OWCP properly suspended appellant’s compensation benefits based on his failure to timely submit a completed EN1032 form when requested.

ORDER

IT IS HEREBY ORDERED THAT the October 3, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

3