United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Francisco, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-611 

Issued: June 2, 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 H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 23, 2015 appellant filed a timely appeal from a December 19, 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 appellant received an overpayment of compensation in the 

amount of $1,733.36 for the period October 19 to November 15, 2014 because she returned to 

work but continued to receive disability compensation; and (2) whether she was at fault in the 

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

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 14, 2008 appellant, then a 47-year-old window distribution clerk, filed an 

occupational disease claim alleging that she sustained bilateral medial epicondylitis as a result of 

using her hands in repetitive motions. OWCP accepted her claim for right medial epicondylitis.2

On October 14, 2009 appellant filed a recurrence claim alleging that on September 24, 

2009 she stopped work because the employing establishment could not accommodate her 

modified-duty requirements. OWCP accepted the claim and paid wage-loss compensation 

benefits. 

In a letter dated December 23, 2009, appellant was advised that she was placed on the 

periodic rolls effective November 7, 2009. In that same letter, OWCP informed her that she was 

only entitled to compensation benefits when she could not perform her duties due to her 

employment injury. Appellant was to advise OWCP if she returned to work, and to return any 

payment to which she was not entitled. 

Appellant received compensation by direct deposit. 

On October 20, 2014 appellant returned to full-time light duty. On November 15, 2014 

OWCP issued a payment of compensation via direct deposit in the amount of $1,733.36 for the 

period October 19 to November 15, 2014. 

On November 18, 2014 OWCP made a preliminary determination that appellant received 

an overpayment of compensation in the amount of $1,733.36 because she returned to full-time 

light duty on October 20, 2014 but received a disability payment for the period October 19 

through November 15, 2014. It found that she was at fault in the creation of the overpayment 

because she accepted a payment that she knew or reasonably should have known to be incorrect. 

OWCP explained how it calculated the amount of the overpayment and noted that appellant 

received a payment of $1,733.36 for the period October 19 to November 15, 2014. It requested 

that she complete the Overpayment Recovery Questionnaire and submit relevant financial 

information within 30 days. 

By decision dated December 19, 2014, OWCP finalized the determination that appellant 

received an overpayment in compensation in the amount of $1,733.36 for the period October 19 

to November 15, 2014 because she continued to receive compensation after she returned to work. 

It found that she was at fault in the creation of the overpayment because she knew or reasonably 

should have known that she was not entitled to compensation after returning to work. As 

appellant was no longer receiving compensation from OWCP, it found that she should forward a 

check for the full amount of the debt. 

 2

 The record reveals that appellant has two previously accepted claims for January 6, 2001 (File No. xxxxxx025) 

and June 1, 2004 (File No. xxxxxx007) injuries. 
3

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.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, she 

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

limited circumstances.4

 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

 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim and paid appropriate wage-loss compensation benefits. 

Appellant returned to full-time light duty on October 20, 2014. As of that date, she was no 

longer entitled to wage-loss compensation benefits. After appellant returned to work, OWCP 

made an automatic payment of compensation in the amount of $1,733.36 on November 15, 2014. 

The payment was made by direct deposit covering the period October 19 to November 15, 2014. 

The Board finds that the direct deposit of this compensation created an overpayment of 

compensation in the amount of $1,733.36 for the period October 19 to November 15, 2014 as 

appellant was not entitled to compensation for total disability after returning to work. The Board 

has reviewed OWCP’s calculation of the overpayment in its preliminary determination and finds 

that it is correct. Accordingly, the Board will affirm OWCP’s December 19, 2014 decision on 

the issues of fact and amount of overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that, when 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. The only exception to this requirement is when an incorrect 

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

would defeat the purpose of FECA or be against equity and good conscience.6

 No waiver of 

payment is possible if appellant is with fault in helping to create the overpayment.7

 3

 5 U.S.C. § 8102(a). 

4 Id. at § 8116(a). 

5

 20 C.F.R. § 10.500(a). 

6

 5 U.S.C. § 8129(b). 

7 Robert W. O’Brien, 36 ECAB 541, 547 (1985). 
4

In determining whether an individual is not without fault or alternatively, with fault, 

section 10.433(a) of OWCP’s regulations provide in relevant part: 

An individual is with fault in the creation of an overpayment who: 

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

knew or should have known to be incorrect; or 

“(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.8

” 

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.9

ANALYSIS -- ISSUE 2 

OWCP found appellant at fault in creating the overpayment of compensation because she 

accepted a payment which she knew or should have known to be incorrect. The Board finds, 

however, that OWCP failed to provide any explanation of how she was at fault in creating the 

overpayment when she could not avoid the incorrect payment sent by electronic fund transfer 

(EFT). In Tammy Craven,

10 the Board explained that an employee who receives payment from 

OWCP in the form of a direct deposit may not be at fault for the first incorrect deposit into his or 

her account since the acceptance of the overpayment, at the time of receipt of the direct deposit, 

lacks requisite knowledge. The Board has recognized that in the case of EFTs, an employee 

would not receive notification of the date and amount of payment until after the deposit was 

made and the overpayment created.11

In this case, appellant received one electronic deposit on November 15, 2014 in the 

amount of $1,733.36. Although she accepted the overpayment at the time it was deposited into 

her account, OWCP has not shown that she knew or should have known at the time of the direct 

deposit on November 15, 2014 that the payment was incorrect. It has not presented evidence to 

establish that appellant accepted a payment at the time of deposit which she knew or should have 

known to be incorrect.12 Appellant had no reason to suspect at the time of the direct deposit that 

 8

 20 C.F.R. § 10.433(a). 

9 Id. at § 10.433(b). 

10 Docket No. 05-249 (issued June 20, 2005), order granting petition for recon. and reaffirming prior decision 

(issued July 24, 2006). 

11 See J.H., Docket No. 15-195 (issued March 17, 2015). 

12 V.A., Docket No. 12-637 (issued August 27, 2012). 
5

OWCP had issued an incorrect payment since this was the first and only incorrect payment 

made.13 Thus, the Board finds that she was not at fault in creating the overpayment received on 

November 15, 2014. A finding of no fault, however, does not mean that the claimant may keep 

the money, only that OWCP must consider eligibility for waiver for this period.14 The Board 

will remand the case for OWCP to obtain current financial information regarding income and 

expenses and consider waiver of recovery of the overpayment based on appellant’s updated 

financial information. 

CONCLUSION 

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

of $1,733.36 because she received wage-loss compensation after she returned to work. The 

Board further finds that OWCP improperly found that she was at fault in creating the 

overpayment and will remand the case for consideration of waiver of the recovery of the 

overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board. 

Issued: June 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 13 See S.C., Docket No. 14-1730 (issued April 13, 2015). 

14 D.B., Docket No. 14-397 (issued June 3, 2014); M.F., Docket No. 12-456 (issued November 13, 2012).