L.R. and U.S. Postal Service, Container Repair Center (Board decision, March 4, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. 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

OWCP mailed a postal employee a required earnings disclosure form and warned that benefits would be suspended if he did not return it within 30 days. The record showed no timely return of the form. The Board affirmed suspension of wage-loss compensation effective October 10, 2023.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Wage-loss benefits suspended for failure to return the earnings form.
• Key point: The required form was not submitted within the 30-day period.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.R., Appellant
)
)
and ) Docket No. 24-0060
) Issued: March 4, 2024
U.S. POSTAL SERVICE, CONTAINER REPAIR
)
CENTER, Oakland, CA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 30, 2023 appellant filed a timely appeal from an October 10, 2023 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 wage-loss compensation benefits, effective October 10, 2023, pursuant to 20 C.F.R. § 10.528.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the October 10, 2023 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. FACTUAL HISTORY

On May 14, 1999 appellant, then a 53-year-old blacksmith/welder, filed an occupational disease claim (Form CA-2) alleging that he sustained detached rotator cuffs due to factors of his federal employment.3 He noted that he first became aware of his condition on December 15, 1997 and realized its relationship to his federal employment on May 13, 1999. OWCP accepted the claim for bilateral rotator cuff tears. As of May 29, 1998, appellant stopped work and did not return, due to his accepted aggravation of post-traumatic stress disorder under OWCP File No. xxxxxx069. OWCP paid him wage-loss compensation on the supplemental rolls as of May 22, 1999, and on the periodic rolls as of February 23, 2003.

By letter dated August 28, 2023, OWCP informed appellant 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 enclosed financial disclosure statement (Form EN-1032) and return it within 30 days or his benefits would be suspended. The letter was mailed to appellant’s last known address. However, no response was received.

By decision dated October 10, 2023, OWCP suspended appellant’s compensation benefits, effective that date, for failure to complete the EN-1032 form, as requested. It noted that if he completed and returned an enclosed copy of the form, his compensation benefits would be retroactively restored 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.4

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.5 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
OWCP assigned the present claim OWCP File No. xxxxxx473. Appellant also has an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx069, which OWCP accepted for aggravation of post-traumatic stress disorder. He also has a prior occupational disease claim under OWCP File No. xxxxxx355, accepted for lumbar strain and L4-5 disc protrusion. Appellant’s claims have been administratively combined by OWCP, with OWCP File No. xxxxxx473 serving as the master file. 4 5 U.S.C. § 8106(b).
5
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.6

ANALYSIS

The Board finds that OWCP properly suspended appellant’s wage-loss compensation benefits, effective October 10, 2023, pursuant to 20 C.F.R. § 10.528.

By letter dated August 28, 2023, OWCP provided appellant with a Form EN-1032 and notified him that federal regulations required him to complete the form and answer all questions concerning his employment or earnings. It properly notified him that, if he did not completely answer all questions and return the form within 30 days, his benefits would be suspended. The record reflects that OWCP’s letter was sent to appellant’s last known address of record and there is no indication that it was returned as undeliverable.7

As the record establishes that appellant failed to timely submit the Form EN-1032 within 30 days of OWCP’s request, the Board finds that OWCP properly suspended his wage-loss compensation benefits, effective October 10, 2023, pursuant to 20 C.F.R. § 10.528.8

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 wage-loss compensation benefits, effective October 10, 2023, pursuant to 20 C.F.R. § 10.528.

6
Id.; see also id. at § 10.525.
7
See H.B., supra note 5; Kenneth E. Harris, 54 ECAB 502, 505 (2003); J.J., Docket No. 13-1067 (issued September 20, 2013).
8
See L.M., Docket No. 23-0632 (issued September 26, 2023); R.B., Docket No. 20-0176 (issued June 25, 2020).

3
 ORDER

IT IS HEREBY ORDERED THAT the October 10, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 4, 2024
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4