United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Cleveland, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0153 

Issued: October 8, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

On October 31, 2014 appellant, through counsel, filed a timely appeal from an October 8, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) which finalized 

a preliminary determination that appellant received an overpayment of compensation in the 

amount of $1,244.16. The Board docketed the appeal as No. 15-0153. 

The Board has duly considered the matter and finds that the case is not in posture for 

decision. 

On October 3, 2007 appellant, a 50-year-old tractor operator, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a right leg injury on August 15, 2007 as a result of 

tripping and twisting his right knee during removal of scrap operation equipment. OWCP 

accepted the claim for right knee sprain and lateral and medial meniscus tears of the right knee. 

On April 11, 2012 appellant, through counsel, filed a claim for a schedule award. By decision 

dated September 17, 2012, OWCP granted appellant a schedule award for 12 percent permanent 

impairment to the right lower extremity. 

In a decision dated January 8, 2014, OWCP expanded appellant’s accepted conditions to 

include localized secondary osteoarthritis of the lower right leg. By decision dated February 21, 

2014, it rescinded appellant’s schedule award because it was “calculated based on incorrect 
2

information and mathematical calculations, resulting in an incorrect schedule award 

determination.” By decision dated August 21, 2014, OWCP granted appellant a schedule award 

for 10 percent permanent impairment to the right lower extremity. 

In a September 3, 2014 letter, OWCP advised appellant of its preliminary determination 

that he received a $1,244.16 overpayment of compensation due to an incorrect payment of a 

schedule award. It found that he had received $22,628.16 in compensation for 12 percent 

permanent impairment to the right lower extremity when he was only entitled to $21,384.00 in 

compensation for a 10 percent permanent impairment. OWCP also made a preliminary 

determination that appellant was not at fault in the creation of the overpayment of compensation 

as he had not accepted a payment that he knew or should have known was incorrect. By decision 

dated October 8, 2014, it finalized its preliminary determination that appellant received an 

overpayment of compensation in the amount of $1,244.16. However, in a decision dated 

October 17, 2014, an OWCP hearing representative set aside OWCP’s schedule award decisions 

dated February 21 and August 21, 2014 and remanded the case to refer appellant for a new 

second opinion examination to determine the nature and extent of his right lower extremity 

impairment. 

The Board finds that OWCP had jurisdiction to issue its October 17, 2014 decision 

vacating its prior schedule award decisions because appellant did not file her appeal to this Board 

until October 31, 2014.1

 Thus, the October 17, 2014 OWCP decision did not change the status 

of the decision on appeal because there was no Board appeal at the time of issuance.2

When OWCP makes a determination that an overpayment of compensation has occurred 

because the claimant received an erroneous schedule award, it must first calculate the schedule 

award.3

 However, the percentage of impairment remains in question as per the October 17, 2014 

decision of OWCP’s hearing representative who set aside the schedule award decisions. Because 

OWCP has not determined the correct extent of appellant’s right lower extremity impairment, it 

cannot show that he received an overpayment of compensation. Therefore, OWCP had no basis 

for issuing its October 8, 2014 overpayment decision. For this reason, the fact of overpayment is 

not in posture for decision pending further adjudication of appellant’s right lower extremity 

impairment. Accordingly, the case is remanded to OWCP for further development of the 

evidence regarding this matter. After such development as it deems necessary, OWCP shall 

issue a de novo decision regarding any overpayment issues. 

                                                             1 See Douglas E. Billings, 41 ECAB 880 (1990) (where the Board held that the only decisions of OWCP that are 

null and void because the case is on appeal to the Board are those which change the status of the decision on appeal). 

2 Id. The Board notes that had OWCP issued the schedule award decision after the Board had acquired 

jurisdiction, the decision would have been null and void as it would have changed the status on appeal. The Board 

and OWCP may not exercise simultaneous jurisdiction over the same issue in a case on appeal. See id.; see also 

20 C.F.R. § 501.2(c)(3). 

3 See C.A., Docket No. 08-1076 (issued November 17, 2008) (where the Board found that the overpayment issue 

was not in posture for decision because OWCP had not properly resolved the schedule award issue). 
3

IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further development 

consistent with this order of the Board. 

Issued: October 8, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board