United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.H., Appellant 

and 

DEPARTMENT OF THE NAVY, MARINE 

CORPS, Camp Lejeune, NC, Employer 

__________________________________________ 

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Docket No. 14-2077 

Issued: February 12, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 30, 2014 appellant filed a timely appeal from the September 2, 2014 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. 

ISSUES 

 The issues are: (1) whether OWCP properly determined that appellant received an 

$80,537.26 overpayment of compensation; and (2) whether it properly determined that appellant 

was at fault in the creation of the overpayment of compensation, thereby precluding waiver of 

recovery of the overpayment. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

 OWCP accepted that on June 22, 2010 appellant, then a 49-year-old supervisory equal 

employment specialist, sustained aggravation of disc protrusions at L4-5 and L5-S1 without 

myelopathy due to climbing stairs at work on that date. 

Appellant stopped work on June 22, 2010 and returned to limited-duty work for four 

hours per day on July 8, 2010. She stopped work on November 10, 2010 and began to receive 

disability compensation on the daily rolls. Appellant later received disability compensation on 

the periodic rolls. 

In a July 29, 2011 report, Dr. Robert M. Moore, a Board-certified orthopedic surgeon 

serving as an OWCP referral physician, indicated that appellant could work for eight hours per 

day with restrictions of no bending or climbing, no lifting more than 10 pounds, and no sitting 

for more than four hours per workday. 

On August 9, 2011 appellant returned to work for four hours per day as an equal 

employment specialist supervisor. In an August 17, 2011 letter, OWCP advised her that it was 

reducing her disability compensation effective August 9, 2011 based on her actual earnings of 

$860.10 per week (for work of four hours per day). It stated, “If you receive an increase in pay 

over the amount cited above, you should notify us of the increase immediately. Failure to do so 

could cause an overpayment of compensation.”2

On September 12, 2011 appellant signed a Form EN1032 in which she certified that she 

understood that she had to immediately report to OWCP any employment or employment 

activity, any change in the status of claimed dependents, any third-party settlement, and any 

monies or income or change in monies or income from federally assisted disability or benefit 

programs. 

By letter dated September 14, 2011, OWCP advised appellant that her periodic payment 

of partial disability compensation would begin effective August 15, 2011 and stated: 

“To minimize the possibility of an overpayment of compensation, notify this 

office immediately when you go back to work. Each payment shows the period 

for which payment is made. If you have worked for any portion of this period, 

return the payment to this office, even if you have already advised OWCP that 

you are working.” 

Appellant resigned her position as a supervisory equal employment specialist at Camp 

Lejeune and on January 15, 2012 she started working on a full-time basis for the employing 

establishment as an equal employment manager at Robins Air Force Base.3

 OWCP did not stop 

paying appellant partial disability compensation for four hours per day at that time. In 

 2

 OWCP did not issue a formal wage-earning capacity determination. 

3

 In early 2012 appellant requested that her mailing address of record be changed from her address in 

Jacksonville, NC, to an address in Warner Robins, GA. After this point, OWCP sent its communications to 

appellant’s address in Warner Robins, GA. 
3

April 2014 OWCP received documents concerning the change in appellant’s job on January 15, 

2012 and it stopped paying her disability compensation effective May 3, 2014. 

The record contains evidence (including a Standard Form 50) showing that when 

appellant started working as an equal employment manager at Robins Air Force Base effective 

January 15, 2012 she began to receive pay of $95,459.00 per year. The evidence also shows that, 

at the time of her June 22, 2010 work injury, appellant was earning $89,450.00 as a supervisory 

equal employment specialist at Camp Lejeune. Payment records and OWCP worksheets show 

that appellant received $80,537.26 in disability compensation for the period January 15, 2012 to 

May 3, 2014. 

In a July 30, 2014 notice, OWCP advised appellant of its preliminary determination that 

she received an $80,537.26 overpayment of compensation because she received partial disability 

compensation payments (for four hours per day) for the period January 15, 2012 to May 3, 2014 

after she returned to full-time work without wage loss on January 15, 2012. It also made a 

preliminary determination that she was at fault in the creation of the overpayment. OWCP 

advised appellant that she could submit evidence challenging the fact, amount, or finding of fault 

and request waiver of the overpayment. It informed appellant that she could submit additional 

evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be 

requested within 30 days of the date of the written notice of overpayment. OWCP requested that 

she complete and return an enclosed financial information questionnaire (Form OWCP-20) 

within 30 days. In an accompanying memorandum, it provided a calculation showing that 

appellant received $80,537.26 in disability compensation for the period January 15, 2012 to 

May 3, 2014. OWCP indicated that various OWCP documents, including a September 14, 2011 

wage-loss document and a Form EN1032 provided in September 2011 advised appellant that she 

could not accept payments after a return to work without wage loss. It stated: 

“On January 15, 2012 the claimant accepted a full-time position with the United 

States Air Force, [Robins Air Force Base], GA, as an [e]qual [e]mployment 

[m]anager. 

“Per SF-50 with an effective date of January 15, 2012, it supports that the position 

accepted was for full time at an annual rate of $95,459[.00]. The claimant’s 

annual and effective rate was based at $89,450.[00] at the time of the injury. In 

calculating the claimant’s wage-earning capacity, ... it was noted a 105 percent 

[wage-earning capacity] indicating that the claimant was not entitled to any 

compensation on or after January 15, 201[2].” 

Appellant did not respond within the allotted time. On August 27, 2014 she called 

OWCP advising that she had just received its July 30, 2014 letter and to ask for an extension to 

submit materials. Appellant was told that there was no indication in the record that the letter was 

not properly sent to her in a timely manner. 

In a September 2, 2014 decision, OWCP determined that appellant received an 

$80,537.26 overpayment of compensation. It also determined that she was at fault in the creation 

of the overpayment, thereby precluding waiver of recovery of the overpayment. OWCP 

indicated that appellant did not respond to the July 30, 2014 preliminary determination within 30 
4

days4

 and indicated that it was proper to find appellant at fault in the creation of the overpayment 

because she accepted payments which she knew or reasonably should have known were 

incorrect. It indicated that it would request payment of the full amount of the overpayment 

within 30 days.5

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA 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.6

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 

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

limited circumstances.7

 OWCP’s regulations state in pertinent part: 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.8

 

ANALYSIS -- ISSUE 1 

The Board finds that appellant received an $80,537.26 overpayment of compensation for 

the period January 15, 2012 to May 3, 2014. OWCP accepted that on June 22, 2010 she 

sustained aggravation of disc protrusions at L4-5 and L5-S1 without myelopathy due to climbing 

stairs at work on that date. After a period of total disability, appellant returned to work in 

August 2011 for four hours per day as a supervisory equal employment specialist and she began 

to receive partial disability compensation. She resigned her position as a supervisory equal 

employment specialist at Camp Lejeune and on January 15, 2012 she started working on a fulltime basis for the employing establishment as an equal employment manager at Robins Air Force 

Base. OWCP did not stop paying appellant partial disability compensation for four hours per 

day at that time. The record contains evidence showing that when appellant started working as 

an equal employment manager at Robins Air Force Base effective January 15, 2012 she began to 

receive pay of $95,459.00 per year. The evidence also shows that, at the time of her June 22, 

2010 work injury, appellant was earning $89,450.00 as a supervisory equal employment 

specialist at Camp Lejeune. OWCP did not stop paying appellant partial disability compensation 

 4

 OWCP stated, “Although we received a call asking for an extension, it is irrelevant as she did not complete and 

return the [Form OWCP-20].” 

5

 With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP 

seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB 

217 (2002). As appellant was not in receipt of continuing compensation at the time of OWCP’s overpayment 

determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. 

See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441. 

6

 5 U.S.C. § 8102. 

7 Id. at § 8116(a). 

8

 20 C.F.R. § 10.500. 
5

until May 3, 2014 and payment records and OWCP worksheets show that she received 

$80,537.26 in disability compensation for the period January 15, 2012 to May 3, 2014. 

Appellant was not entitled to receive both a salary and partial disability wage-loss compensation 

for the same period. Therefore, the $80,537.26 in compensation constituted an overpayment.9

 

On appeal, appellant alleged that she was unable to adequately challenge the 

overpayment because she received OWCP’s July 30, 2014 preliminary overpayment notice at too 

late a date to adequately respond. However, there is no evidence that OWCP’s July 30, 2014 

preliminary overpayment notice was not sent to appellant’s address of record in a timely 

manner.10 On August 27, 2014 appellant requested an extension to submit additional materials. 

She has no right to such an extension and there is no evidence that OWCP acted improperly in 

denying this request. For the above-noted reasons, the evidence shows that appellant received an 

$80,537.26 overpayment of compensation. 

LEGAL PRECEDENT -- ISSUE 2 

 Section 8129(a) of FECA provides that where an overpayment of compensation has been 

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

payments to which an individual is entitled.11 The only exception to this requirement is a 

situation which meets the tests set forth as follows 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 this 

subchapter or would be against equity and good conscience.”12 No waiver of payment is 

possible if the claimant is not “without fault” in helping to create the overpayment.13

 In determining whether an individual is not “without fault” or alternatively “at fault” in 

the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provide in relevant part: 

“A recipient who has done any of the following will be found to be at fault with 

respect to creating an overpayment: 

(1) Made an incorrect statement as to a material fact which he or she 

knew or should have known to be incorrect; or 

 9 See id. 

10 In early 2012 appellant requested that her mailing address of record be changed from her address in 

Jacksonville, NC, to an address in Warner Robins, GA. After this point, OWCP sent all its communications to 

appellant’s current and correct address of record in Warner Robins, GA. In the absence of evidence to the contrary, 

a letter properly addressed and mailed in the course of due business is presumed to have arrived at the mailing 

address in due course if not returned. This is known as the mailbox rule. See, e.g., Kenneth E. Harris, 54 ECAB 

502 (2003). 

11 5 U.S.C. § 8129(a). 

12 Id. at § 8129(b). 

13 L.J., 59 ECAB 264 (2007). 
6

(2) Failed to provide information which he or she knew or should have 

known to be material; or 

(3) Accepted a payment which he or she knew or should have known to 

be incorrect....”14

 Section 10.433(b) of OWCP’s regulations provide: 

“Whether or not OWCP determines that an individual was at fault with respect to 

the creation of an overpayment depends on the circumstances surrounding the 

overpayment. The degree of care expected may vary with the complexity of those 

circumstances and the individual’s capacity to realize that he or she is being 

overpaid.”15 

ANALYSIS -- ISSUE 2 

 The Board finds that OWCP properly found that appellant was at fault in the creation of 

the $80,537.26 overpayment of compensation under the third prong of the above-detailed test, 

thereby precluding waiver of recovery of the overpayment.16 For the period January 15, 2012 to 

May 3, 2014, appellant accepted payments which she knew or reasonably should have known 

were incorrect. 

The Board notes that appellant had ample notice that she could not receive partial 

disability beginning January 15, 2012 after she returned to work on January 15, 2012 without 

wage loss. In an August 17, 2011 letter, OWCP advised appellant that, if she received an 

increase in pay over the amount cited in the letter, she should notify it of the increase 

immediately and that “failure to do so could cause an overpayment of compensation.” On 

September 12, 2011 appellant signed a Form EN1032 in which she certified that she understood 

that she had to immediately report to OWCP any change in monies or income from federally 

assisted disability or benefit programs. By letter dated September 14, 2011, OWCP advised 

appellant that to minimize the possibility of an overpayment of compensation, she should notify 

it immediately when she went back to work. It stated, “Each payment shows the period for 

which payment is made. If you have worked for any portion of this period, return the payment to 

this office, even if you have already advised OWCP that you are working.” 

 Despite being aware that she could not receive partial disability compensation and full 

pay at the same time, appellant accepted compensation to which she was not entitled for the 

period January 15, 2012 to May 3, 2014. Therefore, she accepted $80,537.26 in payments she 

knew or should have known that she could not receive during this period. In addition to the 

above-noted notice regarding the need to return checks for compensation to which she was not 

 14 20 C.F.R. § 10.433(a). 

15 Id. at § 10.433(b). 

16 See supra note 14. 
7

entitled, the extended length that appellant received improper compensation payments would 

also have reasonably led her to believe that the payments were improper.17

 On appeal, appellant argued that she was not at fault in the creation of the overpayment 

because she never hid information from OWCP about her return to work. The Board notes that, 

although appellant advised OWCP of her change of address in early 2012, there is no evidence 

that she advised OWCP at that time of her change to a new job without wage loss. Moreover, 

even if OWCP is negligent in continuing to issue a claimant checks for temporary total disability 

after it was informed he or she had returned to work without wage loss, this does not excuse a 

claimant’s acceptance of checks which he or she knew or should have been expected to know 

should have been returned to OWCP.18 For these reasons, OWCP properly found that appellant 

was at fault in the creation of the $80,537.26 overpayment, thereby precluding waiver of 

recovery of the overpayment.

CONCLUSION 

 The Board finds that OWCP properly determined that appellant received an $80,537.26 

overpayment of compensation. The Board further finds that OWCP properly determined that 

appellant was at fault in the creation of the overpayment of compensation thereby precluding 

waiver of recovery of the overpayment. 

 17 See Claude T. Green, 42 ECAB 274, 281 (1990). 

 18 Robert W. O’Brien, 36 ECAB 541, 547 (1985). 
8

ORDER 

IT IS HEREBY ORDERED THAT the September 2, 2014 merit decision of the Office 

of Workers’ Compensation Programs is affirmed. 

Issued: February 12, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board