J.H. and Department of the Interior, National Park Service, Cuyahoga Valley National Park, Brecksville, OH (Board decision, October 23, 2020)

ECAB final decision. October 16, 2019 wage loss suspension affirmed. 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

J.H., a National Park Service worker with an accepted injury, received wage loss compensation. OWCP sent him an EN1032 disclosure form and warned that benefits would stop if he did not return it within 30 days. The Board found that he did not complete the requested form and affirmed the suspension effective October 13, 2019.

Decision snapshot

• Authority: FECA compensation disclosure form rule, 20 C.F.R. § 10.528.
• Outcome: October 16, 2019 wage loss suspension affirmed.
• Key point: OWCP had given the required notice and the form was not returned.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.H., Appellant
)
)
and ) Docket No. 20-0785
) Issued: October 23, 2020
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE, CUYAHOGA
)
VALLEY NATIONAL PARK, Brecksville, OH,
)
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 JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 25, 2020 appellant filed a timely appeal from an October 16, 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 issuance of the October 16, 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 13, 2019, for failure to complete an EN1032 form as requested.

FACTUAL HISTORY

On January 31, 1984 appellant, then a 37-year-old motor vehicle operator, filed a traumatic injury claim (Form CA-1) alleging that on that day he injured his back, right knee, right elbow, and right shoulder when he stepped on ice-covered steps and fell down to the bottom of the stairway while cleaning the steps in the performance of duty. On June 13, 1984 OWCP accepted the claim for a contusion and sprain of the right shoulder and derangement of the right knee and paid appellant wage-loss compensation on the periodic rolls commencing June 14, 1984.

By decision dated April 12, 1994, OWCP reduced appellant’s wage-loss compensation based on its finding that his actual earnings as a poker dealer, $216.00 per week, effective May 1, 1994, fairly and reasonably represented his wage-earning capacity.

Over the years, OWCP periodically requested that appellant submit completed financial disclosure statements (Form EN1032) which solicited information about his employment, volunteer work, dependent(s) status, receipt of other federal benefits and/or payments, and third- party settlements.

On September 9, 2019 OWCP provided appellant a Form EN1032 and informed him that federal regulations required him to report any improvement in his 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 him that he was required to fully answer all questions on the EN1032 form and return it within 30 days or his benefits would be suspended. The letter was mailed to appellant’s last known address. No response was received within the time allotted.

By decision dated October 16, 2019, OWCP suspended appellant’s compensation benefits, effective October 13, 2019, for failing to complete the EN1032 form as requested. It noted that no response had been received to its September 9, 2019 letter. OWCP advised that, if he completed and returned an enclosed copy of the form, his 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

3
5 U.S.C. § 8106(b).

2

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 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 13, 2019, for failure to complete an EN1032 form as requested.

On September 9, 2019 OWCP provided appellant with an EN1032 form. It properly advised him that, if he had not completely answered all of the questions and return the statement within 30 days, his 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 he was, therefore, required to complete the EN1032 form. His 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 13, 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 13, 2019, for failure to complete an EN1032 form as requested.

4
20 C.F.R. § 10.528. See also P.B., Docket No. 20-0148 (issued July 23, 2020); R.B., Docket No. 20-0176 (issued June 25, 2020); H.B., Docket No. 19-0405 (issued June 26, 2019). 5 Id.; see also id. at § 10.525.
6
See P.B., supra note 4; 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 16, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4