R.R. and Department of Homeland Security, Customs & Border Protection, Ronkonkoma, NY (Board decision, June 13, 2013)

ECAB final decision. The Board affirmed OWCP’s July 5, 2012 decision suspending R.R.’s wage-loss compensation effective July 1, 2012 until it receives his completed earnings report. 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

R.R., a federal pilot with an accepted lumbar disc condition, received wage-loss compensation. OWCP asked him to return a signed Form EN1032 reporting his work and earnings for the previous 15 months. It warned that benefits would be suspended if he did not respond within 30 days. He did not return the form in that period. The Board held that the regulation required the suspension and affirmed it. OWCP had told him that compensation could be restored retroactively after receipt of the form if he remained eligible.

Decision snapshot

• Authority: Earnings reporting and wage-loss suspension under 20 C.F.R. § 10.528.
• Outcome: July 5, 2012 suspension decision affirmed, effective July 1, 2012.
• Key point: A recipient who does not return the required earnings affidavit within 30 days may have wage-loss compensation suspended until OWCP receives it.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.R., Appellant
)
)
and ) Docket No. 13-548
) Issued: June 13, 2013
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Ronkonkoma, NY, Employer
)
__________ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION

On January 2, 2013 appellant filed a timely appeal from a July 5, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE

The issue is whether OWCP properly suspended appellant’s compensation benefits effective July 1, 2012 for failure to submit a completed Form CA-1032 when requested.

1
5 U.S.C. § 8101 et seq.
2
Since using January 8, 2012, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is January 2, 2013, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
FACTUAL HISTORY

On November 29, 1993 appellant, then a 41-year-old pilot, filed an occupational disease claim alleging that he sustained a herniated lumbar disc causally related to factors of his federal employment. OWCP accepted the claim for a herniated nucleus pulposus at L4-5.

By decision dated May 28, 1996, OWCP reduced appellant’s compensation based on its finding that he had the capacity to earn wages as a paralegal effective June 23, 1996.

By letter dated May 10, 2012, OWCP requested that appellant complete, sign and return an enclosed Form EN1032 detailing his earnings and employment for the previous 15 months. It advised him that his benefits would be suspended pursuant to 20 C.F.R. § 10.528 if OWCP did not receive the completed document within 30 days. The letter was mailed to appellant’s address of record.

In a decision dated July 5, 2012, OWCP suspended appellant’s wage-loss compensation effective July 1, 2012 as he did not submit a completed Form EN1032 as requested. It informed him that, when he completed the EN1032 form, it would restore his compensation retroactive to 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

ANALYSIS

On May 10, 2012 OWCP provided appellant with a Form EN1032 requesting information about his earnings and employment activities for the prior 15 months. It explained that federal regulations required him to complete, sign and return the form. OWCP notified

3
5 U.S.C. § 8101 et seq.
4
20 C.F.R. § 10.528.
5
See Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53 ECAB 305 (2002).
6
See supra note 3.

2 appellant that if he did not completely answer all questions and return the signed statement within 30 days, it would suspend his benefits.

Notwithstanding such notice, appellant did not return the form within 30 days as requested. As he did not complete and sign the Form EN1032 affidavit reporting all employment and self-employment, as required by federal regulations, OWCP properly suspended his right to compensation for wage loss under section 10.528.7

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 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 July 5, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7
See James A. Igo, 49 ECAB 189 (1997).

3