L.T. and U.S. Postal Service, Parkdale Station, Dallas, TX (Board decision, August 9, 2023)

ECAB final decision. The Board affirmed OWCP's November 18, 2022 suspension of wage loss compensation for failure to submit the requested disclosure form. A party may petition the Board for reconsideration within 30 days of issuance unless this 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

A postal carrier received wage loss compensation for an accepted ankle injury. OWCP mailed her a Form EN-1032 asking for earnings and employment information from the prior 15 months and warned that benefits would be suspended without a response. The Board found that OWCP sent the request to her address of record and did not receive a completed form within the required period. It upheld the suspension. Benefits could be restored retroactively upon receipt of the form if she remained entitled to compensation.

Decision snapshot

• Authority: FECA earnings reporting, 5 U.S.C. § 8106(b); 20 C.F.R. § 10.528.
• Outcome: Suspension of wage loss compensation affirmed.
• Key point: Failure to return the required earnings form within 30 days permits suspension until OWCP receives it.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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L.T., Appellant
)
)
and ) Docket No. 23-0369
)
Issued: August 9, 2023
U.S. POSTAL SERVICE, PARKDALE
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STATION, Dallas, TX, Employer
)
__________ )

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

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 5, 2023 appellant filed a timely appeal from a November 18, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.

ISSUE

The issue is whether OWCP properly suspended appellant’s wage-loss compensation benefits, effective November 18, 2022, due to her failure to submit an EN-1032 form, as requested.

1
The Board notes that, following the November 18, 2022 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. 2 5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On October 2, 2001 appellant, then a 52-year-old part-time flexible city carrier, filed a traumatic injury claim (Form CA-1) alleging that on July 14, 2001 she stepped in a hole when delivering mail and twisted her right ankle while in the performance of duty. She stopped work on July 17, 2001. OWCP accepted appellant’s claim for right ankle sprain. It expanded acceptance of the claim to include sprain of the right calcaneofibular ligament and right tarsal tunnel syndrome. Beginning on July 14, 2001 OWCP paid appellant wage-loss compensation on the periodic rolls.

OWCP periodically requested that appellant submit financial disclosure statements (Form EN-1032) which solicited information regarding her employment, volunteer work, dependent(s) status, receipt of other federal benefits and/or payments, and third -party settlements.

In a September 21, 2022 letter, OWCP informed appellant that federal regulations required her to execute an affidavit relative to any earnings or employment during the previous 15 months and that an EN-1032 form was enclosed for that purpose. It notified her that she must fully answer all questions on the enclosed EN-1032 form and return it within 30 days or her benefits would be suspended. OWCP mailed the notice to appellant’s last known address of record. No response was received within the time allotted.

By decision dated November 18, 2022, OWCP suspended appellant’s wage-loss compensation benefits effective that date, due to her failure to submit the EN -1032 form, as requested. It noted that, if she completed and returned the enclosed copy of the EN -1032 form, her compensation benefits would be restored retroactively to the date they were suspended.

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

3
Id. at § 8106(b).
4
20 C.F.R. § 10.528. See also R.S., Docket No. 22-0773 (issued May 22, 2023); R.B., Docket No. 20-0176 (issued June 25, 2020); A.H., Docket No. 15-0241 (issued April 3, 2015). 5 Id.; see also id. at § 10.525.

2
 ANALYSIS

The Board finds that OWCP properly suspended appellant’s wage-loss compensation benefits, effective November 18, 2022, due to her failure to submit an EN-1032 form, as requested.

On September 21, 2022 OWCP provided appellant with an EN-1032 form and notified her that federal regulations required her to complete the form and answer all questions concerning her employment or earnings. It notified her that, if she did not completely answer all questions and return the statement within 30 days, her benefits would be suspended. The Board has held that, absent evidence to the contrary, a notice mailed in the ordinary course of business is presumed to have been received by the intended recipient.6 The presumption is commonly referred to as the “mailbox rule.”7 The record reflects that OWCP’s letter was properly sent to appellant’s address of record and there is no indication that it was returned as undeliverable. The record establishes that appellant did not submit a completed EN-1032 form prior to the November 18, 2022 OWCP decision suspending he benefits. Thus, the Board finds that OWCP properly suspended her compensation benefits, effective November 18, 2022, pursuant to 20 C.F.R. § 10.528.

CONCLUSION

The Board finds that OWCP has met its burden of proof to suspend appellant’s wage-loss compensation benefits, effective November 18, 2022, due to her failure to submit an EN-1032 form, as requested.

6
B.F., Docket No. 22-0585 (issued October 20, 2022); E.G., Docket No. 20-1184 (issued March 1, 2021); R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018); Claudia J. Whitten, 52 ECAB 483 (2001). 7 See B.F., id.; W.L., Docket No. 18-1051 (issued March 24, 2021); M.W., Docket No. 15-0507 (issued June 18, 2015); see also James A. Igo, 49 ECAB 189 (1997).

3
 ORDER

IT IS HEREBY ORDERED THAT the November 18, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 9, 2023
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

4