In the Matter of NORMAN F. BLIGH and DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Boston, Mass. Docket No. 87-1191; Submitted on the Record; Before GEORGE E. RIVERS, DAVID S. GERSON, The issues are: (1) whether the Office of Workers' Compensation Programs properly determined that the position of an office manager fairly and reasonably represented appellant's capacity to earn wages; and (2) whether appellant was not without fault in the creation of an overpayment of compensation in the amount of $7,722.99 for the period August 14, 1980 through December 31, 1980 and therefore the overpayment was not subject to waiver. Appellant requested oral argument before the Board on the foregoing issues. Oral argument was scheduled for Tuesday, October 3, 1989 at 10:00 a.m. Appellant was served with notice of the scheduled oral argument. The attorney from the Solicitor's Office representing the Director of the Office of Workers' Compensation Programs appeared at the appointed time for hearing. Appellant failed to appear. The Board therefore directed that the appeal proceed on the record submitted. On January 6, 1978 appellant, a 47-year-old group supervisor, sustained injuries to his lower back and neck as a result of a motor vehicle accident occurring while he was in the performance of duty. Appellant was treated that day by Dr. Brendan F. Crotty, a general surgeon, for strain of the cervical and lumbosacral spines as resulting from the January 6, 1978 employment incident. The Office of Workers' Compensation Programs accepted appellant's claim for strain of the cervical and lumbosacral spines and authorized continuation of pay for appellant's absences from work from March 25, 1978. Appellant assumed a sick and annual leave status beginning July 27, 1978. On September 29, 1978 appellant came under the care of Dr. Ronald F. Kaplan, a Board-certified orthopedic surgeon, who diagnosed "aggravation of cervical spondylosis with nerve root compression C4, 5 and C6; lumbosacral syndrome," as causally related to the January 6, 1978 employment injury. Dr. Kaplan added that appellant had been totally disabled since June 15, 1978. On October 24, 1978 appellant entered a leave-without-pay status, and beginning that same date the Office began paying him compensation benefits for temporary total disability. Appellant remained under Dr. Kaplan's care, who continued to submit progress reports of his treatment of appellant and supported continuing employment-related disability. In order to secure a more complete and current evaluation of appellant's employment-related condition, the Office referred appellant, together with the case record and a statement of accepted facts to Dr. David G. Heller, a Board-certified orthopedic surgeon. Dr. Heller evaluated appellant on December 13, 1979 and in a report dated December 14, 1979 stated: "He described his low back pain at this time as being rather minor and bothersome only when spasms accompany the pain, which often occurred at night. His neck and shoulder pain have improved and he feels that his strength is improving. Examination at this time revealed a moderate loss of motion in the neck, lacking 30 degrees of rotation and 30 degrees of neck extension. His motions have performed slowly and deliberately. His shoulder has full range of motion, his grip strength is good. His low back mobility is excellent with 100 degrees of back flexion and normal straight leg raising. Normal reflexes and neurological examination in the lower extremities are noted. "It seemed clear that this man had sustained cervical and lumbosacral strains with less resolution in the former than in the latter, but with an overall clinical picture which should allow him to return to nonstrenuous work. He has been receiving physical therapy and feels that this has helped considerably. He is certainly capable of returning to sedentary work at this time and continuing physical therapy evenings and weekends. The prognosis for full recovery is quite good, although more time will be necessary before he reaches that point. Further physical therapy with heat treatments and traction, as well as range of motion and exercises should be continued." Dr. Heller also completed a work tolerance limitations sheet enumerating the following limitations: lifting up to 10 pounds; walking, standing and sitting on an unlimited basis; light lifting up to 20 pounds, reaching or working above the shoulder; stooping and kneeling on a partial or limited basis; and no moderate lifting from 20 to 50 pounds, no heavy lifting from 50 to 100 pounds, no push ing, pulling, or carrying, no repeated bending, no climbing, and no operation of a motor vehicle. An Office medical adviser reviewed the record on January 7, 1980 and concluded that appellant was "fit for full-time sedentary position." In completing a work tolerance limitations form, the medical adviser indicated that appellant was capable of performing sedentary lifting to a maximum of 10 pounds, light lifting to a maximum of 20 pounds, walking, standing and sitting for one hour at a time, and partial reaching or working above the shoulder. The medical adviser indicated further that appellant was incapable of engaging in the following activities: moderate lifting from 20 to 50 pounds; heavy lifting 50 to 100 pounds; pushing, pulling, and carrying; stooping, kneeling, repetitive bending, and climbing; and operating a motor vehicle. The medical adviser concluded that appellant was capable of working a full eight-hour day. Appellant submitted a progress note by Dr. Kaplan dated January 29, 1980 who reported that appellant was capable of performing light duty as a supervisor and that he could perform administrative functions. However, Dr. Kaplan stated that appellant was incapable of performing the full duties of a criminal investigator "which include substantial physical effort." In an attending physician's report of the same date Dr. Kaplan indicated that appellant was totally disabled. An Office rehabilitation specialist reviewed the case record and determined that appellant had a 42 percent wage-earning capacity or a 58 percent loss of wage-earning capacity, based on his ability to perform the duties of an office manager. The rehabilitation specialist noted that the physical demands of an office manager provided that the individual should be capable of engaging in sedentary lifting to a maximum of 10 pounds, and that he should have the capacity to talk and hear. The working conditions provided that the individual would be inside 75 percent or more of the time and specific vocational preparation was listed at one to two years. The specialist also indicated that the position was reasonably available in appellant's commuting area and that he was capable of earning $8.00 per hour. The Office medical adviser concluded on March 24, 1980 that appellant was capable of performing the duties of an office manager. By decision dated May 15, 1980 the Office advised appellant that he was no longer totally disabled for work and that he was capable of performing the duties of an office manager effective January 1, 1980.1 1 1 Appellant was paid on the automatic compensation payment system through December 31, 1979. The record contains a memorandum of an August 20, 1980 telephone conversation between appellant and an Office claims examiner, at which time appellant requested that the Office terminate his compensation benefits effective August 31, 1980 because effective September 1, 1980 he would be in receipt of retirement benefits dispensed by the Office of Personnel Management, (OPM). Appellant followed up this request by a written letter to the Office, received on August 23, 1980 requesting same. Appellant stated that he was expecting to retire from work on August 31, 1980 since he had reached the age of 50 and had worked for the employing establishment for 20 years. The record reveals that, due to an administrative error, involving the transposing of a case file number resulting in the destruction of the incorrect compensation plate, the Office continued to pay appellant compensation benefits for temporary total disability during the period August 14 through December 31, 1980, resulting in an overpayment of $7,722.99. Appellant requested reconsideration of the Office's May 15, 1980 decision by a letter dated September 12, 1980. Together with his reconsideration request, appellant submitted a progress note by Dr. Kaplan dated July 17, 1980 in which he concluded that appellant had not been able to work since February 1980, and that although appellant "might have been able to do some administrative work at that time, . . . he is unable to do any work because of his constant pain, paresthesias, and numbness, in the left arm." Consequently, Dr. Kaplan concluded that appellant was unable to work. In a letter dated March 17, 1981 the Office found that an overpayment in the amount of $7,722.99 was created because he received compensation benefits and OPM benefits simultaneously during the period August 14 through December 31, 1980 as a result of the administrative error of destroying the wrong compensation plate. The Office made a preliminary finding that appellant was not without fault in the creation of the overpayment because he had made a formal election to receive retirement benefits instead of compensation benefits effective September 1, 1980 and explained that "any compensation received from this Office during the above period should have been returned to this office." The Office advised appellant that he was entitled to submit any evidence or advance arguments regarding the fact and amount of overpayment; that he could request a hearing involving the same issues; and that he should submit current financial information for consideration in the event the Office found him to be without fault and thus had to determine whether or not waiver of the recovery of the overpayment was warranted. In an April 20, 1981 letter, appellant remitted a check in the amount of $50.00 and requested that the Office apply this amount to the outstanding overpayment balance. In a telephonic communication dated September 10, 1981, and subsequent letters dated October 13, 1981 and February 3, 1982, appellant stated that it was his intention to repay the overpayment and requested that the Office apply the money it owed him for medical and travel expenses to the outstanding overpayment balance. Appellant submitted additional progress reports by Dr. Kaplan dated October 1, 1980, December 12, 1980, February 11, 1981, April 16, 1981, August 21, 1981, and September 29, 1982 essentially supporting continued employment-related disability. By decision dated June 28, 1983 the Office found that an overpayment of compensation in the amount of $7,722.99 had been created and that in applying medical and travel expenses reimbursements owed to appellant in the amount of $1,091.57, the overpayment was reduced to $6,631.42. The Office also finalized its preliminary finding of fault for the reason that "Dual benefits are prohibited." Appellant requested a hearing before an Office hearing representative. A prehearing conference was held between appellant, his attorney and the Office hearing representative on December 14, 1983. Consequently, the hearing representative vacated the Office's March 17, 1981 and June 28, 1983 decisions by a January 30, 1984 compensation order. In a remand order which was incorporated by reference into the compensation order, the hearing representative directed the Office to do the following: "1. Redetermine the proper period of the overpayment and recalculate the correct amount of the overpayment, providing full documentation and explanation thereof for the record. Include in your calculation monies already repaid by or credited to the claimant. "2. Complete reconsideration of the May 15, 1980 decision to reduce the claimant's monetary compensation entitlement as requested by the claimant. "3. Address the issue of fault in the occurrence of the overpayment, giving full and proper consideration to the claimant's arguments, summarized in the hearing representative's letter, as well as to actions of the Office as documented in the record. "Upon completion of the above, issue a new decision addressing the issues of overpayment, amount thereof, and fault therein, ensuring that the claimant is provided with the full expla |