United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.H., Appellant 

and 

U.S. POSTAL SERVICE, MEMPHIS 

PROCESSING & DISTRIBUTION CENTER, 

Memphis, TN, Employer 

__________________________________________ 

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Docket No. 15-0776 

Issued: July 7, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 19, 2015 appellant filed a timely appeal from a February 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 the case. 

ISSUES 

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

amount of $4,031.97 during the period December 8, 2012 through January 12, 2013; and 

(2) whether OWCP properly found appellant was at fault in creating the overpayment thereby 

precluding waiver of the overpayment. 

 1

 5 U.S.C. §§ 8101-8193 
2

FACTUAL HISTORY 

On April 3, 2012 appellant, then a 43-year-old mail processing clerk, filed an 

occupational disease claim alleging that his work on the delivery bar code sorter (DBCS) 

machine aggravated his right shoulder. OWCP accepted the claim for supraspinatus strain of the 

right shoulder and paid appropriate benefits, including a right shoulder surgery which appellant 

underwent on October 3, 2012. Appellant began receiving compensation benefits on the periodic 

compensation rolls as of November 18, 2012. He returned to work in a full-time, limited-duty 

capacity on December 8, 2012. Appellant received wage-loss compensation on the periodic rolls 

through January 12, 2013. 

In a November 14, 2012 letter, OWCP notified appellant that he would be receiving 

compensation payments through the periodic compensation rolls. To minimize the possibility of 

an overpayment of compensation, appellant was instructed to notify OWCP immediately when 

he went back to work. OWCP noted that, if he received his compensation payments via paper 

check, the payment showed the period for which payment is made. If appellant worked for any 

portion of that period, he was to return the payment to OWCP, even if he had already advised 

OWCP that he was working. For payments sent by electronic funds transfer (EFT), a 

notification of the date and amount of payment appeared on the statement from his financial 

institution. Appellant was expected to monitor his EFT deposits carefully, at least every two 

weeks. If he worked for any portion of the period for which a deposit was made, he was to 

advise OWCP immediately so that the overpayment could be collected. OWCP noted that 

appellant’s first payment would be for the period October 3 to November 17, 2012. 

In a check dated December 15, 2012, appellant received a compensation payment in the 

amount of $3,135.98 for the period November 18 to December 15, 2012. In a check dated 

January 12, 2013, appellant received a compensation payment in the amount of $3,135.98 for the 

period December 16, 2012 to January 12, 2013. 

In a compensation termination calculation worksheet, OWCP noted that for the 

compensation period December 8 to 15, 2012, by check dated December 15, 2012, appellant 

received overpayment of $895.99 and for the compensation period December 16, 2012 to 

January 12, 2013, by check dated January 12, 2013, appellant received overpayment of 

$3,135.98 for a total overpayment of $4,031.97. 

By letter dated January 23, 2013, OWCP advised appellant of a preliminary 

determination that an overpayment of $4,031.97 had occurred during the period December 8, 

2012 to January 12, 2013 as he was paid compensation after his return to full duty on 

December 8, 2012. It noted that the total compensation paid for the period December 8, 2012 to 

January 12, 2013 was $6,271.96. OWCP found that for the period November 18 to December 7, 

2012, a period of 20 days, appellant was owed $2,239.99. It subtracted the total received of 

$6,271.96 from the $2,239.99 and found the amount of overpayment was $4,031.97. OWCP 

found that appellant was at fault in creating the overpayment as he knew or should have known 

that he could not receive wage-loss compensation after returning to full-time work. It advised 

appellant to complete an OWCP-20 questionnaire and submit supporting financial documents, as 

this was necessary information on the issues of waiver and recovery of the overpayment. 

Appellant returned to work in a full-time limited-duty capacity on December 8, 2012. 
3

By letter dated January 29, 2013, appellant requested a prerecoupment hearing on the 

issues of fault and a possible waiver of the overpayment. He stated that he was not at fault for 

the overpayment. 

OWCP indicated that appellant completed an Overpayment Recovery Questionnaire.2

 It 

indicated that on the questionnaire, appellant stated that OWCP withheld his payments for five 

months and he was entitled to this payment and any payment. Appellant indicated that he was 

told early on by OWCP that payments were automatic and he had a decision letter dated 

December 18, 2012 denying benefits for September 8 through October 5, 2012. He thought the 

payment was for disability compensation because after he filed his claim in April he had not 

received any compensation until November 1, 2012. Appellant stated that he thought the 

compensation he received was that what was owed him. He also stated that he had a field nurse 

assigned to him for recovery back to work and that he was under the impression that the nurse 

notified OWCP of back to work document as well as doing any necessary paperwork to forward 

to OWCP on his behalf. 

On February 11, 2014 appellant indicated that he no longer desired a hearing and 

requested immediate cancellation from the Branch of Hearings and Review. On March 18, 2014 

OWCP accepted his request for withdrawal of the hearing. 

By decision dated February 2, 2015, OWCP finalized the overpayment determination that 

an overpayment in the amount of $4,031.97 was created for the period December 8, 2012 

through January 12, 2013 for which appellant was at fault as he accepted compensation 

payments he knew or reasonably should have known he was not entitled to. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 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 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 

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

limited circumstances.4

 Section 10.500 of OWCP regulations provide that compensation for 

wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.5

 

 2

 This is not of record. 

3

 5 U.S.C. § 8102(a). 

4 Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005). 

5

 20 C.F.R. § 10.500. 
4

ANALYSIS -- ISSUE 1 

Appellant was not entitled to wage-loss compensation after he returned, to work at full 

salary. The record establishes that appellant returned to full-time, limited-duty work on 

December 8, 2012. He continued to receive wage-loss compensation until January 12, 2013. By 

check dated December 15, 2012, appellant received compensation for the period November 18 to 

December 15, 2012 in the amount of $3,135.98. He was entitled to compensation for the period 

November 18 to December 7, 2012 for a total of $2,239.99. The remaining amount of $895.99 

represents an overpayment for the period December 8 to 15, 2012. By check dated January 12, 

2013, appellant also received a compensation payment in the amount of $3,135.98 for the period 

December 16, 2012 to January 12, 2013. The resulting overpayment is $895.99 plus $3,135.98 

for a total of $4,031.97. Thus, the Board finds that an overpayment of $4,031.97 was created in 

this case. 

LEGAL PRECEDENT -- ISSUE 2 

5 U.S.C. § 8129(b) provides: 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.6 A claimant who is at fault in creating the overpayment is not entitled to waiver.7 

On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or 

she has done any of the following: (1) made an incorrect statement as to a material fact which he 

or she knew or should have known to be incorrect; (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 was incorrect. 

ANALYSIS -- ISSUE 2 

OWCP found appellant was at fault in the creation of the overpayment because he 

accepted payments he knew or should have known to be incorrect. Appellant returned to work in 

a full-time, limited-duty capacity on December 8, 2012. He received compensation payments by 

checks dated December 15, 2012 and January 12, 2013 for temporary total disability after 

returning to work. With respect to whether an individual is with fault, section 10.433(b) of 

OWCP regulations provide that whether or not OWCP determines that individual was without 

fault with respect to the creation of the overpayment depends on the circumstances surrounding 

the overpayment. The degree of care expected could vary with the complexity of the 

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

Board has also noted that in applying the tests to determine fault, OWCP should apply a 

reasonable person test.8

 6

 5 U.S.C. § 8129(b). 

7 See Robert W. O Brien, 36 ECAB 541, 547 (1985). 

8 C.D., Docket No. 12-193 (issued August 2, 2013). 
5

The Board finds that appellant was at fault in the creation of the overpayment. When 

appellant returned to full-time, limited-duty capacity on December 8, 2012, he knew he was no 

longer totally disabled. Appellant was informed of his reporting responsibilities to avoid 

overpayments in OWCP’s November 14, 2012 letter. The checks appellant received on 

December 15, 2012 and January 12, 2013 clearly noted the period for which wage-loss 

compensation covered. Even though OWCP incorrectly continued to issue appellant checks for 

wage-loss compensation after December 8, 2013, this does not excuse his acceptance of such 

checks which he knew or should have known were incorrect.9

 Appellants do not get to keep 

monies erroneously paid merely because they received it. For these reasons, OWCP properly 

found appellant at fault in the creation of the $4,031.97 overpayment, thereby precluding waiver 

of recovery of the overpayment.10 As appellant is no longer receiving FECA wage-loss 

compensation, the Board does not have jurisdiction with respect to recovery of the 

overpayment.11

CONCLUSION 

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation during the period December 8, 2012 through January 12, 2013 in the amount of 

$4,031.97. The Board further finds that OWCP properly determined that he was at fault in 

creating the overpayment of compensation, thereby precluding waiver of recovery of the 

overpayment. 

 9 See Robert W. O Brien, 36 ECAB 541, 547 (1985). 

10 5 U.S.C. § 8129(b); L.J., 59 ECAB 264 (2007). 

11 See Desiderio Martinez, 55 ECAB 245 (2004). 
6

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: July 7, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board