PDF
Version
United States Department of Labor
Employees’ Compensation Appeals Board
|
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, HILLDALE STATION, Tampa, FL, Employer
__________________________________________
|
)
)
)
)
)
)
)
)
|
Docket No. 08-1075
Issued: December 8,
2008
|
Appearances: Case
Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chief Judge
DAVID S. GERSON,
Judge
MICHAEL E. GROOM,
Alternate Judge
JURISDICTION
On February 27, 2008
appellant filed a timely appeal from an April 16, 2007 merit decision of
the Office of Workers’ Compensation Programs finding that he received an
overpayment of compensation and denying waiver of the overpayment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
overpayment decision.
ISSUES
The issues are:
(1) whether appellant received an overpayment of compensation in the
amount of $43,846.23 for the period April 20, 2002 to October 4, 2003
because he received dual benefits from the Office and the Department of
Veterans Affairs; and (2) whether he is entitled to wavier of the
overpayment.
FACTUAL HISTORY
On May 17, 2001
appellant, then a 53-year-old letter carrier, sustained extreme anxiety and
depression due to an altercation with his supervisor. He stopped work on
May 21, 2001. The Office accepted the claim for an anxiety and
depressive reaction. It paid appellant compensation for total disability beginning
July 2, 2001.
Appellant received treatment
following his employment injury from Dr. Walter E. Afield, a
Board-certified psychiatrist. On May 18, 2001 Dr. Afield diagnosed a
severe depressive reaction and anxiety reaction and opined that appellant was
disabled from employment. On June 19, 2001 he noted that appellant had
post-traumatic stress disorder (PTSD). In a report dated August 16, 2001,
Dr. Bala K. Rao, a Board-certified psychiatrist and Office referral
physician, opined that appellant could return to work in his usual employment.
The Office determined that a conflict existed between Dr. Rao and
Dr. Afield regarding the extent of appellant’s disability and referred him
to Dr. Krishan K. Batra, a Board-certified psychiatrist, for
resolution of the conflict. On January 7, 2002 Dr. Batra discussed
appellant’s history of PTSD following a gunshot wound in Vietnam. He diagnosed an adjustment disorder, possible bipolar disorder and a history of
PTSD.
On August 12, 2002
Dr. Gary K. Arthur, a Board-certified psychiatrist, discussed in
detail appellant’s experiences in Vietnam. He diagnosed PTSD due to his Vietnam experiences. In a progress report dated August 21, 2002, Dr. Afield
noted that appellant was “going into great detail about his Vietnam experiences, which apparently have been exacerbated by his situation at the [employing
establishment].” He diagnosed overwhelming PTSD. In a letter to the Office of
the same date, Dr. Afield related that appellant had been shot twice in
combat in Vietnam and received two purple hearts. He diagnosed severe PTSD.
Dr. Afield opined that appellant might harm someone if he returned to the
employing establishment. In a report dated October 23, 2002,
Dr. Gillian Karatinos, a Board-certified psychiatrist, discussed appellant’s
May 17, 2001 work injury. She noted that the Department of Veterans
Affairs (DVA) had increased appellant’s service-related disability to 50
percent and stated, “[Appellant] has flashbacks of people dying in Vietnam as well as almost being blown up himself. He has alternate psychic numbing and
hyperarousal (panic) symptoms…. [Appellant] tries to avoid thinking of what
happened in Vietnam.” Dr. Karatinos diagnosed PTSD and recurrent major
depressive disorder. She attributed his PTSD to his Vietnam experiences and
found that the May 17, 2001 employment injury “appears to be the
triggering factor for the recurrence of the PTSD.” Dr. Karatinos opined
that he was 100 disabled due to service-related PTSD.
By decision dated
December 2, 2002, the Office terminated appellant’s compensation effective
November 30, 2002 on the grounds that the weight of the medical evidence
showed that he had no further employment-related disability.
In a December 16, 2002
report, Dr. Arthur asserted that the May 17, 2001 work incident
aggravated appellant’s preexisting PTSD. In a January 13, 2003
supplemental report for the DVA, he diagnosed pervasive symptoms of PTSD and
opined that appellant remained disabled.
On April 21, 2003 an
Office hearing representative, following a preliminary record review, reversed
the December 3, 2002 decision terminating appellant’s compensation. The
hearing representative noted that both Dr. Arthur and Dr. Karatinos
opined that the May 17, 2001 work incident aggravated appellant’s preexisting
PTSD. He instructed the Office to obtain a second opinion examination
regarding “whether the claimant does indeed suffer from [PTSD] and if so,
whether this condition was aggravated by the May 17, 2001 employment
incident.”
On May 7, 2003 the Office
referred appellant to Dr. Emmy Andri, a Board-certified psychiatrist, for
a second opinion examination. It requested that Dr. Andri address whether
appellant continued to experience anxiety and depression due to the
May 17, 2001 work incident and the extent of any disability. The Office
further requested that he determine whether appellant sustained an aggravation
of preexisting PTSD due to the May 17, 2001 employment incident and, if
so, whether the aggravation was temporary or permanent. On June 4, 2003
Dr. Andri discussed the May 17, 2001 work incident and noted that
appellant had PTSD “while in [the] Vietnam War and has been on 100 [percent]
disability.” She diagnosed a history of PTSD, depression, anxiety and an
adjustment disorder. Dr. Andri opined that appellant had “a chronic
pathology that will interfere with appropriate behavior in a working situation
that requires interpersonal dealings.” She found that his condition was
permanent and “not due to the one episode of May 17, 2001 although it
affected him significantly.” Regarding the question of whether appellant
continued to experience anxiety and depression from his May 17, 2001 work
injury, Dr. Andri responded “yes” and indicated that his “already existing
pathology was activated.”
In an EN-1032 form dated
June 17, 2003, appellant related that the DVA increased his compensation
for a preexisting condition of PTSD from 10 percent to 50 percent retroactive
to October 7, 2002. On March 17, 2003 the DVA increased his
PTSD award to 100 percent on March 17, 2003 retroactive to
May 1, 2002. On May 5, 2003 the Office received a copy of a
March 17, 2003 DVA decision increasing appellant’s evaluation of PTSD to
100 percent effective April 30, 2002. The DVA cited
Dr. Afield’s treatment notes and October 16, 2002 report, the
August 21, 2002 psychological evaluation by Dr. Arthur, the
October 23, 2002 evaluation by Dr. Karatinos and September 5 and
8, 2002 and February 21, 2003 DVA evaluations in concluding that he was
severely disabled due to PTSD.
By letter dated
September 12, 2003, the Office noted that appellant had received a 10
percent award for PTSD from the DVA prior to his employment injury. The DVA
increased the award to 100 percent on April 30, 2002. It informed
him that he must elect between the DVA benefits and his workers’ compensation
benefits plus the 10 percent award for PTSD which the DVA awarded prior to his
work injury. On September 22, 2003 appellant declined to make an election
between benefits from the DVA and benefits from the Office. He asserted that
his PTSD was not related to his civilian employment.
On October 2, 2003 the
Office suspended appellant’s wage-loss compensation effective
October 5, 2003. It noted that the Federal Employees’ Compensation
Act
prohibited a claimant from receiving dual benefits for an employment injury.
The Office notified him that the suspension of his benefits would continue
until he made an election. By decision dated June 2, 2004, an Office
hearing representative affirmed the October 2, 2003 suspension of
compensation. She found that the medical evidence established that appellant
was receiving dual benefits for the same injury.
On July 28, 2004 the
Office notified appellant of its preliminary determination that he received a
$43,846.24 overpayment of compensation from May 30, 2002 through
October 4, 2003 because he received benefits from both the Office and the
DVA. It noted that on March 17, 2003 the DVA had increased his disability
award due to PTSD from 10 percent to 100 percent beginning
April 30, 2002. The Office concluded that the $43,846.24 that
appellant received from the Office from May 30, 2002 through
October 4, 2003 constituted an overpayment of compensation as it was a
dual benefit. It advised him of its preliminary determination that he was not
at fault in the creation of the overpayment. The Office requested that
appellant complete the enclosed overpayment recovery questionnaire and submit
supporting financial documents. Additionally, it notified him that, within 30
days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence or a prerecoupment hearing.
Appellant
requested a prerecoupment hearing on August 8, 2004. He submitted
supporting financial documents. On March 30, 2005 appellant requested
that the Office reschedule the hearing. He again requested that the Office
reschedule the hearing on January 5, 2007. Appellant related that he
did not receive 30 days’ advance notice. On March 15, 2007 the Office
informed him that it had changed his request for an oral hearing to a request
for a review of the written record. It requested current financial information
supporting waiver. By letter dated April 4, 2007, appellant indicated
that he was unaware of the laws regarding dual benefits when he received money
from the Office and the DVA.
By decision dated
April 16, 2007, the Office hearing representative finalized the finding
that appellant received a $43,846.24 overpayment of compensation from May 30,
2002 through October 4, 2003 because he received benefits from both the
Office and the DVA. She found that Dr. Andri opined in a report dated
June 4, 2003 that appellant’s May 17, 2001 employment injury
permanently aggravated his PTSD. The hearing representative also noted that
the DVA cited the reports from Dr. Afield and Dr. Arthur in its
March 17, 2003 award. She finalized the finding that appellant was
without fault in creating the overpayment. The hearing representative denied
waiver after determining that appellant failed to submit supporting financial
documents supporting waiver as requested by letter dated
March 15, 2007. She found that appellant should repay the
overpayment by forwarding the entire amount to the Office.
LEGAL
PRECEDENT -- ISSUE 1
Section 8116(a) of the Federal
Employees’ Compensation Act defines the limitations on the right to receive
compensation benefits. This section of the Act provides in pertinent part as
follows:
“(a) While an
employee is receiving compensation under this subchapter … he may not receive
salary, pay or remuneration of any type from the United States except --
(1) in return for
service actually performed;
(2) pension for
service in the Army, Navy or Air Force;
(3) other benefits
administered by the [Veterans’ Administration] unless such benefits are payable
for the same injury or the same death.…”
Section
8116(b) provides that in such cases an employee shall elect which benefits he
shall receive.
The Act prevents payment of dual benefits in cases where the Office has found
that the injury was sustained in civilian federal service and the Veterans’ Administration
has held that the same injury was caused by military service.
The
Office’s procedure manual discusses when payment of benefits under the Act and
under statues administered by the DVA constitute forbidden dual payments of
compensation, noting that the prohibition against receiving such payments
includes an increase in a veteran’s service-connected disability award, where
the increase is brought about by an injury sustained while in civilian
employment.
Proceedings under the Act are
not adversarial in nature nor are the Office a disinterested arbiter.
While the claimant has the responsibility to establish entitlement to
compensation, it shares responsibility in the development of the evidence. The
Office has the obligation to see that justice is done.
Accordingly, once it undertakes to develop the medical evidence further, it has
the responsibility to do so in the proper manner.
ANALYSIS -- ISSUE 1
The Office accepted
appellant’s emotional condition claim for an anxiety reaction and a depressive
reaction. At the time of its acceptance, he received an award from the DVA for
a 10 percent disability due to PTSD. The DVA increased appellant’s award for
PTSD to 100 percent effective April 30, 2002. The Office found that
the increase in the award constituted a dual benefit as it resulted from the
accepted work injury. It determined that appellant received dual benefits from
the Office and the DVA from April 30, 2002 to October 4, 2003, the
date it suspended his compensation because he refused to make an election of
benefits.
The Board finds that the case
is not in posture for decision. The Act prohibits payments from the Office and
the DVA when the benefits are “payable for the same injury.”
The Office did not sufficiently resolve the issue of whether appellant’s
benefits from the Office under the Act and the increase in his benefits from
the DVA resulted from the same injury. In a decision dated April 21,
2003, a hearing representative instructed it to refer appellant for a second
opinion examination to determine whether he sustained an aggravation of PTSD
due to the May 17, 2001 work incident. The Office referred appellant to
Dr. Andri and requested that the physician provide an opinion on whether
appellant sustained an aggravation of preexisting PTSD due to the May 17,
2001 employment incident and, if so, whether the aggravation was temporary or
permanent. In a report dated June 4, 2003, Dr. Andri noted that appellant
had PTSD “while in [the] Vietnam War and has been on 100 [percent] disability.”
She reviewed the May 17, 2001 work incident and diagnosed a history of
PTSD, depression, anxiety and an adjustment disorder. Dr. Andri opined that
appellant had “a chronic pathology that will interfere with appropriate
behavior in a working situation that requires interpersonal dealings.” She
found that his condition was permanent and “not due to the one episode of
May 17, 2001 although it affected him significantly.” Regarding the
question of whether appellant continued to experience anxiety and depression
from his May 17, 2001 work injury, Dr. Andri responded “yes” and
indicated that appellant’s “already existing pathology was activated.” She did
not adequately respond to the question regarding whether appellant’s
preexisting PTSD was aggravated or contributed to by the May 17, 2001 work
injury. Dr. Andri’s medical report is insufficient to show that the
increase in appellant’s DVA benefits resulted from the accepted civilian work
injury. Further, it does not appear from the record that the Office accepted
that appellant sustained a work-related aggravation of PTSD.
It thus had insufficient basis to conclude that appellant’s compensation
benefits from the Office constituted a dual benefit and thus an overpayment of
compensation.
CONCLUSION
The Board finds that the
Office improperly determined that appellant received an overpayment of
compensation in the amount of $43,846.23 for the period April 20, 2002 to
October 4, 2003 due to his receipt of dual benefits.
ORDER
IT
IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 16, 2007 is reversed.
Issued: December 8, 2008
Washington, DC
Alec J.
Koromilas, Chief Judge
Employees’
Compensation Appeals Board
David S.
Gerson, Judge
Employees’
Compensation Appeals Board
Michael E.
Groom, Alternate Judge
Employees’
Compensation Appeals Boar