United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 14-521 

Issued: October 17, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 31, 2013 appellant, through his attorney, filed a timely appeal from a 

September 26, 2013 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 in compensation in the 

amount of $5,172.30 because he received duplicate reimbursements for nursing services between 

November 1, 2011 and April 1, 2012; and (2) whether OWCP properly found him at fault in the 

creation of the overpayment. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On November 4, 2004 appellant, then a 48-year-old work study student, filed a traumatic 

injury claim, alleging that he injured his back while lifting boxes on October 28, 2004. On 

November 30, 2005 OWCP accepted the claim for lumbar strain with radiculopathy. In 2006, 

appellant was placed on the periodic compensation rolls and attendant care for two hours a day 

was authorized in September 2008. In October 2008, he was referred to vocational 

rehabilitation. In accordance with the provisions of sections 8113(b) and 8104 of FECA, by 

decision dated April 22, 2010, OWCP adjusted appellant’s monetary compensation to zero 

because he failed, without good cause, to cooperate with vocational rehabilitation efforts. On 

February 16, 2011 appellant was granted a schedule award for 16 percent impairment of the left 

lower extremity and 16 percent impairment on the right.2 In a merit decision dated 

June 17, 2011, OWCP denied modification of the April 22, 2010 decision. Appellant requested 

reconsideration on June 13, 2012. In an April 15, 2013 decision, OWCP denied his request, 

finding that the reconsideration request was untimely filed and did not establish clear evidence of 

error.3

 

On July 29, 2013 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $5,172.30 because he received duplicate 

reimbursements for nursing services between November 1, 2011 and April 1, 2012. It found him 

at fault because he submitted two claims for reimbursement for the same period. Appellant was 

provided an overpayment action request form and an overpayment questionnaire.4 

The record includes a claim for medical reimbursement submitted by appellant dated 

August 8, 2012 that indicated that he was claiming reimbursement totaling $8,830.64 for services 

of Barbara Dupree for the period November 1, 2011 through April 30, 2012. On a second form 

that is undated, he also claimed reimbursement totaling $8,830.64 for services by Ms. Dupree 

during the same period. Copies of receipts from Ms. Dupree for this period are found in the 

record. Remittance vouchers dated September 15 and October 27, 2012 show that OWCP paid 

appellant two checks of $2,586.15 for services beginning on November 1, 2011, for a total of 

$5,172.30. A third remittance voucher dated November 17, 2012 shows that he was paid 

$8,830.64 for this same period. Copies of checks, endorsed by appellant, dated September 20 

and November 1, 2012 for $2,586.15 each and a third check for $8,830.64 dated 

November 23, 2012 are found in the record. 

 2

 The record indicates that appellant is also in receipt of Veterans Affairs benefits for paranoid schizophrenia. 

3

 In a December 2, 2013 order remanding case, the Board set aside the April 15, 2013 OWCP decision finding 

that the reconsideration request was timely filed. The Board remanded the case to OWCP for application of the 

standard for reviewing a timely request for reconsideration as set forth in 20 C.F.R. § 10.606(b)(2). Docket No. 13-

1350 (issued December 2, 2013). 

4

 An OWCP fiscal officer initially sent an overpayment letter on January 8, 2013 with supporting documentation. 

On July 29, 2013 OWCP informed appellant that he was sent the overpayment letter in error, noting that it was the 

type sent to medical providers and had limited appeal rights. 
3

On an overpayment action request dated August 21, 2013, appellant requested waiver, 

stating that he did not know there was an overpayment. The record also contains overpayment 

questionnaires completed by him on April 24 and August 21, 2013. 

On September 26, 2013 OWCP finalized the July 29, 2013 preliminary overpayment 

decision, finding that appellant was at fault in creating the $5,172.30 overpayment because he 

knew or should have known that he was not entitled to a check for $8,830.64, the full amount of 

his request for reimbursement of Ms. Dupree’s services, when he had already received two 

checks of $2,586.16 each, for a total of $5,172.30. It explained that he was only entitled to a 

further payment of $3,658.29 rather than the full amount requested ($8,830.64), which yielded an 

overpayment of compensation of $5,172.30. OWCP directed appellant to forward monthly 

payments of $50.00. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8103 of FECA provides that the United States shall furnish to an employee who 

is injured while in the performance of duty, the services, appliances and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree or the period of disability or aid in lessening the amount of the monthly 

compensation.5

 While OWCP is obligated to pay for treatment of employment-related 

conditions, the employee has the burden of establishing that the expenditure is incurred for 

treatment of the effects of an employment-related injury or condition.6

 In interpreting section 

8103(a) of FECA, the Board has recognized that OWCP has broad discretion in approving 

services provided under FECA to ensure that an employee recovers from his or her injury to the 

fullest extent possible in the shortest amount of time. OWCP has administrative discretion in 

choosing the means to achieve this goal and the only limitation on OWCP’s authority is that of 

reasonableness.7

Section 8111 of FECA provides that the Secretary of Labor may pay an employee who 

has been awarded compensation an additional sum of not more than $1,500.00 a month, as the 

Secretary considers necessary, when the Secretary finds that the service of an attendant is 

necessary constantly because the employee is totally blind or has lost the use of both hands or 

both feet or is paralyzed and unable to walk or because of other disability resulting from the 

injury making him or her so helpless as to require constant attendance.8

 

 5

 5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003). 

6 Kennett O. Collins, Jr., 55 ECAB 648 (2004). 

7 R.L., Docket No. 08-855 (issued October 6, 2008). 

8

 5 U.S.C. § 8111. OWCP procedures allows payment for services of an attendant where it is medically 

documented that the claimant requires assistance to care for personal needs such as bathing, dressing, eating, etc. 

Such services are paid as a medical expense directly to the provider of services under 5 U.S.C. § 8103. Prior to the 

January 1999 revision to the Federal Regulations, an attendant allowance was paid directly to the claimant. Any 

such allowance approved prior to January 1999 continued to be paid to the claimant until the need for the attendant 

ceased. Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, 

Chapter 2.810.21 (September 2010). 
4

When a claimant receives a duplicate reimbursement payment for a period that he or she 

has already received reimbursement, an overpayment of compensation is created.9 

ANALYSIS -- ISSUE 1 

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

of compensation in the amount of $5,172.30 because he received duplicate reimbursements for 

nursing services between November 1, 2011 and April 1, 2012. The record reflects that 

appellant submitted a claim for medical reimbursement on August 8, 2012 which indicated that 

he was claiming reimbursement for services of Ms. Dupree for the period November 1, 2011 

through April 30, 2012, totaling $8,830.64. On a second form that is undated, he also claimed 

reimbursement for services by Ms. Dupree for the same period, also totaling $8,830.64. Copies 

of receipts from Ms. Dupree for this period are in the record. Remittance vouchers dated 

September 15 and October 27, 2012 show that OWCP paid appellant $2,586.15 on two occasions 

for services beginning on November 1, 2011, for a total of $5,172.30. A third remittance 

voucher dated November 17, 2012 shows that he was paid $8,830.64 for this same period. 

Copies of checks endorsed by appellant, dated September 20 and November 1, 2012 for 

$2,586.15 each and a third check for $8,830.64 dated November 23, 2012 are found in the 

record. 

As appellant was only entitled to reimbursement of $8,830.64, an overpayment of 

compensation in the amount of $5,172.30 was created. 

LEGAL PRECEDENT -- ISSUE 2 

 Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”10

Section 10.433(a) of OWCP regulations provide that OWCP: 

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events which may 

affect entitlement to or the amount of benefits. A recipient who has done any of 

the following will be found to be at fault in 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 generally C.W., Docket No. 10-263 (issued September 14, 2010). 

10 5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994). 
5

(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. (This provision applies only to the overpaid individual).”11

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines 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.12

ANALYSIS -- ISSUE 2 

OWCP found that appellant accepted a payment he knew or should have known was 

incorrect. As explained above, appellant submitted two reimbursement claims for services for 

the same period. Each claim was for a total of $8,830.64. Remittance vouchers dated 

September 15 and October 27, 2012 show that OWCP paid appellant a total of $5,172.30 in two 

checks of $2,586.15 and a third remittance voucher of $8,830.64 for the same services. Copies 

of the two checks, endorsed by appellant, dated September 20 and November 1, 2012 for 

$2,586.15 and the third check for $8,830.64 dated November 23, 2012 are found in the record. 

Appellant’s wage-loss compensation was reduced to zero on April 22, 2010 because he 

had failed to cooperate with rehabilitative efforts. On February 16, 2011 he was granted a 

schedule award for 16 percent impairment of the left lower extremity and 16 percent impairment 

on the right. The period of the award was August 24, 2010 to May 30, 2012. At the expiration 

of the schedule award on May 30, 2012, appellant was not entitled to any monetary 

compensation and therefore had no expectation of reimbursement from OWCP other than further 

request reimbursement of $8,830.64 for the services of Ms. Dupree for the period 

November 1, 2011 and April 1, 2012. 

Under these circumstances, the Board finds that appellant knew or should have known he 

was not entitled to reimbursements for Ms. Dupree’s services for the period November 1, 2011 

and April 1, 2012 totaling $14,002.94, when he had requested reimbursement of $8,830.64. 

OWCP, therefore, properly found him at fault.13 As appellant was at fault in the creation of the 

overpayment he was not entitled to waiver.14

 11 20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430. 

12 Id. at 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006). 

13 The Board notes that it is unclear why OWCP was paying appellant directly for Ms. Dupree’s services since, in 

accordance with OWCP procedures, care authorized after 1999 is paid directly to the provider. Federal (FECA) 

Procedure Manual, supra note 8. In this case attendant care was authorized in September 2008. 

14 The Board notes that its jurisdiction is limited to reviewing those cases where OWCP seeks recovery from 

continuing compensation benefits under FECA. Where, as here, a claimant is no longer receiving wage-loss 

compensation benefits, the Board does not have jurisdiction with respect to OWCP’s recovery of the overpayment 

under the Debt Collection Act. Albert Pineiro, 51 ECAB 310 (2000). 
6

CONCLUSION 

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

of compensation in the amount of $5,1762.30 and that, as he was at fault, he was not entitled to 

waiver. 

ORDER 

IT IS HEREBY ORDERED THAT the September 26, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 17, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board