P.B. and Department of Homeland Security, Transportation Security Administration, Dallas/Fort Worth International Airport (Board decision, July 23, 2020)

ECAB final decision on this appeal. The Board affirmed OWCP's October 11, 2019 decision suspending P.B.'s wage-loss compensation. Under 20 C.F.R. § 501.6(d), this Board decision becomes final as to the appeal 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

P.B., a transportation security screener receiving compensation for an accepted back condition, was asked to complete an EN1032 report about work and other benefits. OWCP mailed the form to her last known address and warned that wage-loss payments would be suspended if she did not return it within 30 days. The Board found no timely response in the record and affirmed the suspension effective October 12, 2019. The decision states that OWCP would reinstate compensation retroactively upon receiving the completed form if she remained entitled to benefits.

Decision snapshot

• Authority: FECA earnings reporting, 5 U.S.C. § 8106(b); 20 C.F.R. § 10.528.
• Outcome: October 11, 2019 suspension affirmed, effective October 12, 2019.
• Key point: Failure to return the required EN1032 report within 30 days permitted suspension of wage-loss compensation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.B., Appellant
)
)
and ) Docket No. 20-0148
) Issued: July 23, 2020
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, DALLAS/FORT WORTH
)
INTERNATIONAL AIRPORT, TX, Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On October 24, 2019 appellant filed a timely appeal from an October 11, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the October 11, 2019 decision, OWCP received additional evidence. 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 OWCP properly suspended appellant’s wage-loss compensation benefits, effective October 12, 2019, for failure to complete an EN1032 form as requested.

FACTUAL HISTORY

On April 19, 2004 appellant, then a 47-year-old transportation security screener, filed an occupational disease claim (Form CA-2) alleging that she sustained a bulging L5-S1 disc as a result of factors of her federal employment including twisting her waist when moving the belongings of passengers from a table to a conveyer belt. OWCP initially accepted her claim for lumbar strain/sprain and dislocation of the lumbar vertebra, and later expanded acceptance of the claim to include right hip and thigh sprain, chronic pain syndrome, degeneration of the lumbar or lumbosacral intervertebral disc, and displacement of the lumbar intervertebral disc without myelopathy. It paid appellant wage-loss compensation on the periodic rolls commencing October 16, 2016.

On August 12, 2019 OWCP provided appellant a Form EN1032 and informed her that federal regulations required her to report any improvement in her medical condition, any employment, any change in the status of claimed dependents, any third-party settlement, and any income or change in income from federally-assisted disability or benefit programs. It notified her that she was required to fully answer all questions on the EN1032 form and return it within 30 days or her benefits would be suspended. The letter was mailed to appellant’s last known address. However, OWCP received no response.

By decision dated October 11, 2019, OWCP suspended appellant’s compensation benefits, effective October 12, 2019, for failing to complete the EN1032 form as requested. It noted that, if she completed and returned an enclosed copy of the form, her compensation benefits would be restored retroactively to the date they were suspended.

LEGAL PRECEDENT

Section 8106(b) of 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. At that

3
5 U.S.C. § 8106(b).
4
20 C.F.R. § 10.528. See also H.B., Docket No. 19-0405 (issued June 26, 2019); M.S., Docket No. 18-1107 (issued December 28, 2018); C.C., Docket No. 17-0043 (issued June 15, 2018); A.H., Docket No. 15-0241 (issued April 3, 2015).

2 time, OWCP will reinstate compensation retroactive to the date of suspension if the employee remains entitled to compensation.5

ANALYSIS

The Board finds that OWCP properly suspended appellant’s wage-loss compensation benefits, effective October 12, 2019, for failure to complete an EN1032 form as requested.

On August 12, 2019 OWCP provided appellant with an EN1032 form. It properly advised her that, if she did not completely answer all of the questions and return the statement within 30 days, her benefits would be suspended. The record reflects that OWCP’s letter was properly sent to appellant’s last known address and there is no indication that it was returned as undeliverable.6 Under the mailbox rule, a document mailed in the ordinary course of the sender’s business practices to the addressee’s last known address is presumed to be received by the addressee.7

The record indicates that appellant failed to timely submit the EN1032 form within 30 days of OWCP’s request. Appellant was receiving wage-loss compensation and she was therefore required to complete the EN1032 form. Her failure to file an EN1032 form within 30 days resulted in the suspension of compensation. Thus, the Board finds that OWCP properly suspended appellant’s compensation benefits, effective October 12, 2019, pursuant to 20 C.F.R. § 10.528.

CONCLUSION

The Board finds that OWCP properly suspended appellant’s wage-loss compensation benefits, effective October 12, 2019, for failure to complete an EN1032 form as requested.

5
Id.
6
See H.B., supra note 4; J.J., Docket No. 13-1067 (issued September 20, 2013); Kenneth E. Harris, 54 ECAB 502, 505 (2003). 7 Id.

3
 ORDER

IT IS HEREBY ORDERED THAT the October 11, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 23, 2020
Washington, DC

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

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

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

4