United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.G., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Milan, MI, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1444 

Issued: October 28, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 9, 2014 appellant filed a timely appeal of a January 15, 2014 Office of Workers’ 

Compensation Programs’ (OWCP) merit decision finding that he had received an overpayment 

of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case. 

ISSUES 

The issues are: (1) whether appellant received an overpayment of compensation of 

$2,275.53 for the period November 19 to December 14, 2013 for which he was not at fault; and 

(2) whether the overpayment is subject to waiver of recovery. 

FACTUAL HISTORY 

On April 3, 2012 appellant, then a 40-year-old correctional officer, filed a traumatic 

injury claim alleging that on April 3, 2012 a chair he attempted to sit in flipped forward causing 

 1

 5 U.S.C. § 8101 et seq.
2

his right knee to hit the floor, leaving him pinned between the chair and the floor. OWCP 

accepted his claim for tear of the medial meniscus of the right knee on May 17, 2012. Appellant 

underwent right knee arthroscopy with partial medial meniscectomy on July 31, 2012. 

Appellant completed a direct deposit sign-up form on July 26, 2012. His attending 

physician released him to return to full-time limited-duty work on September 17, 2012, but the 

employing establishment was unable to accommodate his restrictions and he was sent home. 

Appellant submitted claims for compensation for the period August 26 through 

December 1, 2012. His vascular surgeon diagnosed deep vein thrombosis as a result of his 

surgery and prescribed Coumadin. Due to this medication, appellant was instructed to avoid all 

prisoner contact. OWCP entered him on the periodic rolls on December 12, 2012. Appellant 

returned to work in his date-of-injury position as a corrections officer effective 

November 19, 2013. He continued to be paid wage-loss compensation for total disability 

through December 14, 2013. 

On December 12, 2013 OWCP made a preliminary determination that appellant had 

received an overpayment of compensation in the amount of $2,275.53 because he received 

compensation for total disability after returning to full-time work from November 19 through 

December 14, 2013. It found that he was not at fault in the creation of the overpayment as he 

received one direct deposit after returning to work. OWCP provided appellant with his appeal 

options and an overpayment recovery questionnaire. Appellant did not complete a recovery 

questionnaire or provide any financial information to show that he is entitled to waiver. 

By decision dated January 15, 2014, OWCP finalized the overpayment and denied waiver 

of recovery. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA2

 provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.3

 Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits. This section of FECA provides that, while an employee is receiving compensation, he 

may not receive salary, pay or remuneration of any type from the United States, excepted in 

limited circumstances.4

 The implementing regulations provide that compensation for wage loss 

due to disability is available only for any periods during which an employee’s work-related 

medical condition prevents him or her from earning the wages earned before the work-related 

injury.5

 A claimant is not entitled to receive temporary total disability and actual earnings for the 

same period. OWCP’s procedures provide that an overpayment in compensation is created when 

a claimant returns to work but continues to receive wage-loss compensation.6

 

 2

 5 U.S.C. §§ 8101-8193, 8102. 

3 Id.

4 Id. at § 8116(a) 

5

 20 C.F.R. § 10.500. 

6 R.A., Docket No. 14-539 (issued June 24, 2014); Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004). 
3

ANALYSIS -- ISSUE 1 

The Board finds that appellant received an overpayment of compensation in the amount 

of $2,275.53 for the period November 19 to December 14, 2013. Appellant was placed on the 

periodic rolls on December 12, 2012 and received wage-loss compensation for total disability. 

The record establishes that appellant returned to work in his date-of-injury position as a 

corrections officer effective November 19, 2013. Appellant continued to receive wage-loss 

compensation for total disability through December 14, 2013. As noted, he is not entitled to 

receive compensation for total disability after he has returned to work and earned his regular 

salary. Accordingly, the Board finds that appellant received an overpayment of compensation. 

OWCP determined that from November 19 through December 14, 2013 appellant 

received $2,275.53 in total net compensation but was not entitled to any compensation during 

this period. Appellant did not dispute the fact or amount of the overpayment. OWCP properly 

explained how the overpayment occurred and provided this information to appellant with the 

preliminary determination of overpayment. There is no evidence that the overpayment did not 

occur as found by OWCP. The Board finds that OWCP properly determined that appellant 

received an overpayment of compensation in the amount of $2,275.53 from November 19 

through December 14, 2013. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that when an overpayment of compensation occurs 

“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later 

payment to which the individual is entitled.7 The only exception to this requirement that an 

overpayment must be recovered is set forth in section 8129(b): 

“Adjustment or recovery by the United States may not be made when incorrect 

payment has been made to an individual who is without fault and when 

adjustment or recovery would defeat the purpose of FECA or would be against 

equity and good conscience.” 

 Thus, a finding that appellant was without fault is not sufficient, in and of itself, for 

OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether 

recovery of the overpayment would “defeat the purpose of FECA or would be against equity and 

good conscience,” pursuant to the guidelines provided in the implementing federal regulations. 

 Section 10.436 of the implementing regulations8

 provide that recovery of an overpayment 

will defeat the purpose of FECA if recovery would cause hardship by depriving a presently or 

formerly entitled beneficiary of income and resources needed for ordinary and necessary living 

expenses and outlines the specific financial circumstances under which recovery may be 

considered to defeat the purpose of FECA. 

Section 10.437 provides that recovery of an overpayment is considered to be against 

equity and good conscience when an individual who received an overpayment would experience 

 7

 5 U.S.C. § 8129(a). 

8

 20 C.F.R. § 10.436. 
4

severe financial hardship attempting to repay the debt and when an individual, in reliance on 

such payments or on notice that such payments would be made, gives up a valuable right or 

changes his or her position for the worse.9 

Section 10.438(a) provides that the individual who received the overpayment is 

responsible for providing information about income, expenses and assets as specified by OWCP, 

as this information is needed to determine whether or not recovery of an overpayment would 

defeat the purpose of FECA or be against equity and good conscience.10 This information would 

also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that 

failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.11

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly determined that appellant did not establish 

entitlement to waiver of recovery of the $2,275.53 overpayment under the above-described 

standards. Appellant did not provide a completed overpayment recovery questionnaire or any 

financial information to show that he was entitled to waiver of the overpayment within 30 days 

of the preliminary overpayment determination. Despite being advised by OWCP’s 

December 12, 2013 letter regarding the importance of providing financial information on an 

overpayment recovery questionnaire form, he failed to provide such information or a completed 

questionnaire prior to OWCP’s January 15, 2014 decision. For these reasons, OWCP properly 

determined that appellant did not show that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience. Therefore, it properly denied 

waiver of recovery of the overpayment.12

CONCLUSION 

The Board finds that appellant received an overpayment of compensation in the amount 

of $2,275.53 for the period November 19 to December 14, 2013 for which he was not at fault 

and that OWCP properly denied waiver of recovery of the overpayment. 

 9 Id. at § 10.437. 

10 Id. at § 10.438(a). 

11 Id. at § 10.438(b). 

12 S.H., Docket No. 14-421 (issued August 27, 2014). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 28, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board