United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-1178 

Issued: December 17, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 4, 2015 appellant filed a timely appeal from an April 2, 2015 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 a 

$2,396.69 overpayment of compensation; and (2) whether it abused its discretion by refusing to 

waive recovery of the overpayment. 

FACTUAL HISTORY 

OWCP accepted that on January 21, 2012 appellant, then a 46-year-old rural carrier, 

sustained right shoulder adhesive capsulitis and muscle spasm due to a vehicular accident at 

work. Appellant stopped work and received disability compensation on the daily rolls effective 

 1

 5 U.S.C. § 8101 et seq. 
2

March 26, 2012. She received disability compensation on the periodic rolls effective 

November 18, 2012. By letter dated November 16, 2012, OWCP advised appellant that she was 

required to provide notice upon return to any work and to return all payments received for 

periods after return to work. Appellant returned to full-time regular work for the employing 

establishment on May 1, 2013.2

In a July 19, 2013 notice, OWCP advised appellant of its preliminary determination that 

she received a $2,396.69 overpayment of compensation for the period May 1 to June 1, 2013 

because she continued to receive total disability after she returned to full-time regular work for 

the employing establishment on May 1, 2013.3

 It also made a preliminary determination that she 

was at fault in the creation of the overpayment. OWCP noted that appellant was aware or 

reasonably should have been aware that she could not accept disability compensation monies 

after she returned to full-time regular work on May 1, 2013. It advised appellant that she could 

submit evidence challenging the fact, amount, or finding of fault and request waiver of recovery 

of the overpayment. OWCP requested that appellant complete and return an enclosed financial 

information questionnaire within 30 days even if she was not requesting waiver of the 

overpayment. 

In a form dated August 1, 2013 and received August 2, 2013, appellant contested 

OWCP’s preliminary determination that she was at fault in the creation of the claimed $2,396.69 

overpayment. She asserted that she contacted OWCP on several occasions, by letter and 

telephone, regarding her return to work. It does not appear that appellant provided the requested 

financial information within 30 days of OWCP’s July 19, 2013 notice. 

OWCP requested that the employing establishment clarify whether appellant returned to 

work on May 1 or June 1, 2013. In a March 31, 2015 e-mail to OWCP, the employing 

establishment confirmed that appellant returned to work on May 1, 2013. 

In an April 2, 2015 decision, OWCP determined that appellant had received a $2,396.69 

overpayment of compensation and that she was not at fault in the creation of the overpayment 

because she appeared to have been confused about her return to work date.4

 It further found that 

appellant had not established eligibility for waiver of recovery of the $2,396.69 overpayment of 

compensation because she did not submit financial information within the allotted time period 

which would justify such a waiver of recovery. 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. 

 2

 In a May 28, 2013 letter to OWCP, appellant indicated that she should not receive any compensation after 

June 1, 2013 and that “June 1, 2013 should be my last check.” 

3

 The record contains evidence showing that appellant received $2,396.69 in compensation for the period May 1 

to June 1, 2013. 

4

 It was noted that in a May 28, 2013 letter to OWCP appellant asserted that “June 1, 2013 should be my last 

check.” 
3

LEGAL PRECEDENT -- ISSUE 1 

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

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

performance of his or her duty.5

 Section 8129(a) of FECA provides, in pertinent part: 

“When an overpayment has been made to an individual under this subchapter 

because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”6

Section 8116(a) of FECA provides that while an employee is receiving compensation or 

if he or she has been paid a lump sum in commutation of installment payments until the 

expiration of the period during which the installment payments would have continued, the 

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

except in limited specified instances.7

ANALYSIS -- ISSUE 1 

The Board finds that appellant received a $2,396.69 overpayment of compensation for the 

period May 1 to June 1, 2013. Appellant received wage-loss compensation during this period 

despite the fact that she returned to full-time regular work on May 1, 2013. She was not entitled 

to receive both a salary and wage-loss compensation for the same period.8 The record contains 

evidence showing that appellant received $2,396.69 in compensation for the period May 1 to 

June 1, 2013. For these reasons, the Board finds that she received a $2,396.69 overpayment of 

compensation. 

LEGAL PRECEDENT -- ISSUE 2 

 The waiver or refusal to waive an overpayment of compensation by OWCP is a matter 

that rests within OWCP’s discretion pursuant to statutory guidelines.9 These statutory guidelines 

are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an 

overpayment] 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.”10 When a claimant is found to 

be without fault in the matter of the overpayment, then, in accordance with section 8129(b), 

OWCP may only recover the overpayment if it determined that recovery of the overpayment 

would neither defeat the purpose of FECA nor be against equity and good conscience. 

 5

 5 U.S.C. § 8102(a). 

6 Id. at § 8129(a). 

7 Id. at § 8116(a). 

8 See supra note 9. 

9 See Robert Atchison, 41 ECAB 83, 87 (1989). 

10 5 U.S.C. § 8129(b). 
4

 Section 10.438 of OWCP’s regulations provide: 

“(a) The individual who received the overpayment is responsible for providing 

information about income, expenses and assets as specified by OWCP. 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. 

This information will also be used to determine the repayment schedule, if 

necessary. 

“(b) Failure to submit the requested information within 30 days of the request 

shall result in denial of waiver, and no further request for waiver shall be 

considered until the requested information is furnished.”11

ANALYSIS -- ISSUE 2 

 The Board finds that appellant failed to establish waiver of the recovery of the $2,396.69 

overpayment. Appellant failed to provide financial information within the allotted period after 

OWCP’s July 19, 2013 preliminary overpayment determination.12 She did not submit evidence 

showing that she was entitled to waiver of the overpayment because adjustment or recovery 

would defeat the purpose of the relevant subchapter of FECA or would be against equity and 

good conscience.13 Therefore, OWCP did not abuse its discretion by refusing to waive recovery 

of the $2,396.69 overpayment. 

CONCLUSION 

 The Board finds that OWCP properly determined that appellant received a $2,396.69 

overpayment of compensation. The Board further finds that OWCP did not abuse its discretion 

by refusing to waive recovery of the overpayment. 

 11 20 C.F.R. § 10.438. 

12 See supra note 13. 

13 See supra note 12. 
5

ORDER 

IT IS HEREBY ORDERED THAT the April 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board