United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rochester, MN, Employer 

__________________________________________ 

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Docket No. 14-898 

Issued: March 26, 2015 

Appearances: Oral Argument February 25, 2015 

Appellant, pro se 

Office of Solicitor, for the Director

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 11, 2014 appellant filed a timely appeal from a February 5, 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 overpayment decision. 

ISSUES 

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

overpayment in the amount of $104,428.67 for the period October 30, 2010 through March 9, 

2013 because he continued to receive compensation for a schedule award after the period of the 

award had expired; and (2) whether it properly found that he was at fault in the creation of the 

overpayment and was, therefore, ineligible for waiver of recovery of the overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 30, 2008 appellant, then a 43-year-old mail processing clerk, filed a Form CA-2 

claim for benefits, alleging a right wrist condition causally related to employment factors. 

OWCP accepted the claim for right-sided de Quervains/tenosynovitis. Appellant underwent 

surgery on October 29, 2008 and began receiving compensation for temporary total disability. 

On July 29, 2009 appellant accepted a job as a modified mail processing clerk with the 

employing establishment. 

By decision dated October 23, 2009, OWCP reduced appellant’s compensation to zero, 

finding that his actual wages as a modified mail processing clerk exceeded his wages for the job 

he held on the date of injury, that he had held this position for two months or more, and that 

therefore the position fairly and reasonably represented his wage-earning capacity. Its final 

payment of disability compensation, in the amount of $871.51, was sent to him to cover the 

period July 18 to 27, 2009, the date he began work as a modified mail processing clerk. 

In a Form CA-7 dated May 4, 2010, appellant requested a schedule award based on a 

partial loss of use of his right upper extremity. 

By decision dated August 16, 2010, OWCP granted appellant a schedule award for a 10 

percent permanent impairment of the right upper extremity for the period March 25 to 

October 29, 2010 or a total of 31.2 weeks of compensation. The decision stated that “payment of 

your award ends when you have been paid for the last day shown in item 3 above.” 

In a Form EN1032 completed on September 22, 2010, received by OWCP on 

September 27, 2010, appellant indicated that he had last worked from July 29, 2009 to March 17, 

2010 and that he was currently receiving disability retirement checks. 

In Forms EN1032 completed on September 22, 2011 and October 4, 2012, appellant 

reported that he had not received any benefits paid by the Federal Government within the past 15 

months. 

In a letter dated March 25, 2013, the employing establishment’s Office of the Inspector 

General (OIG) informed OWCP that it had identified an overpayment of appellant’s OWCP 

benefits. It stated that appellant had been granted a schedule award on August 16, 2010 for a 

period of 31.2 weeks of compensation, at the weekly rate of $824.25. The total amount of the 

award was $25,716.60; however, appellant was still receiving schedule award benefits pursuant 

to this award. OIG’s letter indicated that he had received payments from March 25, 2010 

through March 9, 2013, totaling $130,214.92. This resulted in an overpayment of $104,499.32 

($130,214.92 in payments minus $25,716.60 the amount of benefits he should have received 

from March 25 to October 29, 2010). The letter included a worksheet listing monthly payments 

to appellant from March 25, 2010 to March 9, 2013. 

In a letter dated December 5, 2013, OWCP advised appellant that it had made a 

preliminary determination that he received a $104,428.67 overpayment of compensation for the 

period October 30, 2010 to March 9, 2013. This overpayment occurred, the letter explained, 

because a computer system error continued to make schedule award payments for a significant 
3

period of time after the schedule award ended. OWCP found that appellant was with fault in the 

creation of this overpayment because he continued to accept payments without returning them to 

OWCP, when he knew or should have known that he was not entitled to the compensation, 

thereby creating an overpayment. It calculated the amount of the overpayment for the period 

October 30, 2010, the last day of the schedule award to March 9, 2013 by adding the monthly 

checks appellant received during this period. OWCP advised him that he must complete and 

submit an enclosed Form OWCP-20 overpayment recovery questionnaire within 30 days if he 

wished to request waiver of the overpayment. 

On January 20, 2014 appellant completed the form OWCP-20 and listed his monthly 

income and expenses. He also submitted a January 20, 2014 letter in which he stated that, after 

he received the final payment for the schedule award, he received another payment from OWCP. 

At this time his wife called OWCP and was told that “everything was fine and payment was not 

an error.” Appellant stated that he subsequently received another payment but continued to 

suspect that an error had been made. He asserted that, because he had previously received 

payment for loss of wages, he assumed that this was why he was still receiving payments. 

In a decision dated February 5, 2014, OWCP finalized its determination regarding the 

overpayment of a schedule award for which appellant was at fault and not eligible for waiver. It 

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

payments were incorrect. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA2 and its implementing regulations3 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use, of scheduled members or functions of the body. Section 20 C.F.R. § 10.404 

states that compensation is provided for specified periods of time for the permanent loss or loss 

of use of certain members. 

ANALYSIS -- ISSUE 1 

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

of compensation in the amount of $104,428.67 for the period October 30, 2010 to 

March 9, 2013. The amount of the overpayment is not in dispute. 

Appellant was granted a schedule award on August 16, 2010 for the period March 25 to 

October 29, 2010, for a total of 31.2 weeks of compensation. The evidence of record establishes 

that he continued to receive schedule award payments from OWCP after October 29, 2010, the 

date the award was scheduled to expire, until March 9, 2013. Consequently, any payments 

appellant received from OWCP beginning October 30, 2010 constituted an overpayment of 

benefits. OWCP properly calculated the $104,428.67 overpayment by totaling the amount of 

 2 Id. at § 8107. 

3

 20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009). 
4

compensation checks appellant received during the period October 30, 2010 through 

March 9, 2013. The Board affirms its finding of fact and amount of overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129 of FECA4

 provides that an overpayment must be recovered unless 

“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.” 

No waiver of an overpayment is possible if the claimant is not “without fault” in helping to 

create the overpayment.5

In determining whether an individual is with fault, section 10.433(a) of OWCP’s 

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: 

Made an incorrect statement as to a material fact which the individual 

knew or should have known to be incorrect; or 

Failed to provide information which the individual knew or should have 

known to be material; or 

Accepted a payment which he or she knew or should have known to be 

incorrect.6

” 

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s 

regulations provide in relevant part: 

“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.”7

ANALYSIS -- ISSUE 2 

OWCP applied the third standard in determining that appellant was at fault in creating the 

overpayment. 

 4

 5 U.S.C. § 8129(a)-(b). 

5 Bonnye Mathews, 45 ECAB 657 (1994). 

6

 20 C.F.R. § 10.433(a). 

7 Id. at § 10.433(b). 
5

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

accepted payments that he knew or should have known he was not entitled to receive. The 

record establishes that it informed appellant in its August 16, 2010 schedule award decision that 

payment of his award was supposed to end when he had been paid for the last day shown in the 

award, October 29, 2010. Appellant stated in his January 20, 2014 letter that his wife contacted 

OWCP and inquired as to the propriety of the continuing schedule award payments. This 

demonstrated his awareness that acceptance of compensation benefits for periods after 

October 29, 2010 was incorrect. The record also indicates that OWCP discontinued 

compensation for wage loss effective July 27, 2009, the date he had returned to work. Appellant 

therefore had no expectation or right to further wage-loss benefits. 

Further, the Board notes that on the Forms EN1032 appellant completed on 

September 22, 2011 and October 4, 2012, he stated, incorrectly, that he had not received any 

benefits paid by the Federal Government within the past 15 months. 

The record clearly indicates that appellant knew or should have known that acceptance of 

compensation benefits for periods after October 29, 2010 was incorrect. However, appellant 

continued to accept payments after this date which he knew or should have known were 

incorrect. As appellant accepted compensation benefits from OWCP which covered the period 

October 30, 2010 through March 9, 2013, the Board finds that he was at fault in the creation of 

the overpayment and is not entitled to waiver.8

With respect to the recovery of the overpayment in compensation, the Board’s 

jurisdiction is limited to reviewing those cases where OWCP seeks recovery from continuing 

compensation benefits under FECA.9 As appellant is no longer receiving wage-loss 

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

under the Debt Collection Act.10

CONCLUSION 

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

of $104,428.67 for the period October 30, 2010 through March 9, 2013 because he continued to 

receive compensation for a schedule award after the period of the award had expired. The Board 

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

overpayment and is therefore not entitled to waiver. 

 8 Lawrence J. Dubuque, 55 ECAB 667, 673 (2004). 

9 Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004). 

10 Cheryl Thomas, id. 
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ORDER 

IT IS HEREBY ORDERED THAT the February 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 26, 2015 

Washington, DC 

 

Patricia Howard Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board