United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New Orleans, LA, Employer 

__________________________________________ 

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Docket No. 16-1127 

Issued: December 12, 2016 

Appearances: Case Submitted on the Record

J. Courtney Wilson, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 5, 2016 appellant, through counsel, filed a timely appeal from November 24, 

2015 and December 16, 2015 merit decisions of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act2

 (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 $2,985.20 for the period July 26 to August 22, 2015 as she received duplicate 

compensation payments and not entitled to waiver of recovery; (2) whether OWCP properly 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

found appellant at fault in creation of the overpayment; and (3) whether OWCP properly denied 

appellant’s request for a prerecoupment hearing as untimely. 

FACTUAL HISTORY 

OWCP accepted that on April 6, 2015 appellant, then a 59-year-old mail handler, 

sustained a right leg sprain and right knee contusion when the door of a postal container struck 

her knee. She stopped work on April 7, 2015. Appellant’s physicians held appellant off work 

through August 6, 2015 and continuing. Appellant was released to modified-duty work as of 

October 5, 2015. 

Appellant received continuation of pay and was then placed on the supplemental rolls 

from June 18 to 27, 2015 and on the periodic rolls beginning June 28, 2015. On April 24, 2015 

she elected to receive compensation by direct electronic deposit. In a July 15, 2015 letter, 

OWCP explained to appellant that on July 25, 2015 she would be issued a one-time 

compensation payment of $2,985.20 for the period June 28 to July 25, 2015. 

An August 31, 2015 memorandum reflects that appellant telephoned OWCP to advise 

that she had not received the paper compensation checks dated July 25 and August 22, 2015. 

In a September 4, 2015 letter, OWCP notified appellant that it had initiated tracer and 

stop payment actions for the check dated July 25, 2015 and the check dated August 22, 2015. It 

advised her to notify OWCP immediately if she received or found the checks. 

In a September 15, 2015 memorandum, OWCP noted that an August 22, 2015 

compensation paper check was “sent to the incorrect address,” and that no electronic deposits 

had yet occurred in appellant’s case. It advised her that the August 22, 2015 payment would be 

reissued as an electronic funds transfer (EFT) and deposited directly into her bank account. On 

September 18, 2015 OWCP issued an EFT payment for the period July 26 to August 22, 2015 in 

the amount of $2,985.20. 

In an October 7, 2015 memorandum, OWCP noted that, on an unspecified date, appellant 

cashed the check dated August 22, 2015, covering the period July 26 to August 22, 2015. It 

explained that an overpayment was created because she endorsed and cashed the check covering 

the period July 26 to August 22, 2015, although she had also received an EFT on September 15, 

2015 for the same period. OWCP noted that appellant had been instructed to notify OWCP 

immediately if she received the check and not to cash it. 

In an October 19, 2015 worksheet, OWCP noted that appellant received a $2,985.20 

overpayment of compensation as she received both a paper check and an EFT payment for the 

period July 26 to August 22, 2015. It explained that she cashed the check dated August 22, 

2015, covering the period July 26 to August 22, 2015, after she also received an EFT on 

September 18, 2015 for same period. 

By notice dated October 21, 2015, OWCP advised appellant that it made a preliminary 

finding that she had received a $2,985.20 overpayment of compensation as she received both an 

EFT and a paper check for the period July 26 to August 22, 2015. It made the preliminary 

finding that she was at fault in creating the overpayment as she accepted a duplicate payment that 

she knew or reasonably should have known was incorrect. OWCP afforded appellant 30 days to 
3

submit information regarding her income, assets, and expenses, request a prerecoupment hearing; 

or request a conference. It enclosed an overpayment recovery questionnaire (Form OWCP-20). 

Appellant telephoned OWCP on October 28, 2015. A memorandum noted that OWCP 

advised her that “[appellant] received paper check and direct deposit check for the same period.” 

OWCP advised appellant that “[appellant] should have return[ed] the paper check.” Appellant 

contended that she was told on an unspecified date that it was “okay to cash check.” 

A compensation payment history printout dated November 10, 2015 listed duplicate 

payments for the period July 26 to August 22, 2015, a paper check on August 22, 2015 in the 

amount of $2,985.20, and an EFT on September 18, 2015 in the amount of $2,985.20. OWCP 

also issued an EFT on September 19, 2015 for the period August 23 to September 19, 2015, in 

the amount of $2,985.20. 

By decision dated November 24, 2015, OWCP finalized the preliminary overpayment 

finding of a $2,985.20 overpayment for the period July 26 to August 22, 2015. It found that 

appellant received duplicate payments of $2,985.20, as OWCP issued both a paper check and 

EFT payment for the same period. OWCP found her at fault in creating the overpayment as she 

accepted a duplicate payment that she knew, or reasonably should have known, was incorrect. It 

further found that as appellant was at fault in creating the overpayment, it was not subject to 

waiver of recovery. OWCP directed recovery of the overpayment by a single payment of 

$2,985.00. 

In an overpayment recovery questionnaire dated and postmarked on November 21, 2015, 

appellant requested a prerecoupment hearing. She acknowledged receiving duplicate payments 

“in the correct amounts,” but contended that she was entitled to both the paper check and the 

EFT payment as she did not receive compensation payments in August or September 2015. 

Appellant therefore considered the duplicate July 26 to August 22, 2015 payments as a substitute 

for the allegedly missing payment. She completed the overpayment recovery questionnaire and 

submitted pay stubs.3

 

By decision dated December 16, 2015, OWCP denied appellant’s request for a 

prerecoupment hearing, finding that a “final decision concerning an overpayment [was] not 

subject to the hearing provision of 5 U.S.C. § 8124(b).” 

LEGAL PRECEDENT -- ISSUE 1 

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 his or her 

duty.4 When an overpayment has been made to an individual because of an error of fact or law, 

 3

 Appellant noted that she supported her minor granddaughter. She listed $2,985.20 in monthly income from 

compensation payments, and $330.00 in cash and savings. Appellant enumerated $2,832.00 in monthly expenses: 

$990.00 in rent or mortgage; $480.00 for food; $50.00 for clothing; $220.00 for utilities; $350.00 for miscellaneous 

expenses; $50.00 in student loan payments; $361.00 for automobile insurance; and $331.00 for an automobile loan 

repayment. 

4

 5 U.S.C. § 8102(a). 
4

adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing 

later payments to which the individual is entitled.5

 

ANALYSIS -- ISSUE 1 

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

of $2,985.20 for the period July 26 to August 22, 2015. 

On August 22, 2015 OWCP issued appellant a check in the amount of $2,985.20, 

covering the period from July 26 to August 22, 2015. As appellant advised OWCP on 

August 31, 2015 that she did not receive the check, OWCP issued a stop payment on 

September 3, 2015. OWCP instructed her by September 4, 2015 letter to contact OWCP 

immediately if she received the check. On September 15, 2015 it issued appellant an EFT 

payment for $2,985.20, covering the same period. However, on or before October 7, 2015 

appellant received and cashed the check dated August 22, 2015. Thus, the record establishes that 

she was paid twice for the period July 26 to August 22, 2015, creating an overpayment of 

$2,985.20. 

The Board notes that appellant acknowledged receiving duplicate payments in the 

November 21, 2015 overpayment recovery questionnaire. As well, on appeal, counsel admits 

that appellant received a duplicate payment for the period July 26 to August 22, 2015.6 He 

contends, however, that the duplicate payment should be considered an “offset” against a 

missing payment for the period June 28 to July 25, 2015. The issue on appeal is whether an 

overpayment of compensation was created for the period July 26 to August 22, 2015. The record 

establishes such duplicate payments which both appellant and counsel acknowledge. 

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.7

 

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 -- 

Made an incorrect statement as to a material fact which he or she knew or 

should have known to be incorrect; or 

 5 Id. at § 8129(a). 

6

 The Board notes that this argument is irrelevant, as it concerns a period that is not at issue on the present appeal. 

7 C.V., Docket No. 13-2108 (issued June 17, 2014); W.M., Docket No. 11-2000 (issued May 21, 2012). 
5

Failed to provide information which he or she knew or should have known 

to be material; or 

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

incorrect.”8

 

The regulations further provide that each recipient of compensation benefits is 

responsible to ensure that payments he or she receives from OWCP are proper.9

 Whether or not 

OWCP determines that an individual was at fault with respect to the creation of the overpayment 

depends on the circumstances surrounding the overpayment.10 

ANALYSIS -- ISSUE 2 

OWCP determined that appellant was at fault in the creation of the overpayment under 

the third standard, because she cashed a check after receiving an electronic payment for the same 

period. It initially issued a paper check on August 22, 2015 in the amount of $2,985.20, covering 

the period July 26 to August 22, 2015. On August 31, 2015 appellant advised OWCP that she 

did not receive the check. OWCP stopped payment on the check, and in a September 4, 2015 

letter instructed her to report immediately if she received it. Appellant was thus on notice that 

she was not to cash the check. 

On September 15, 2015 OWCP issued an EFT for $2,985.20 for the period July 26 to 

August 22, 2015 to substitute for the lost check, which it had instructed appellant not to 

negotiate. However, between September 18 and October 7, 2015, appellant cashed the check. 

The record contains an image of the face of the check and her signature endorsing the check on 

the reverse. Appellant thus knew or should have known at the time she cashed this check that 

she was not entitled to receive a paper check for the same period for which she had already 

received the EFT payment. 

Additionally, both appellant and counsel acknowledged that she knew that she received 

duplicate payments. Appellant noted in the November 21, 2015 overpayment recovery 

questionnaire that she knew she received both an EFT deposit and paper check for the period 

July 26 to August 22, 2015. 

Therefore, OWCP has shown that appellant knew or should have known at the time she 

deposited the August 22, 2015 check that she was not entitled to this compensation payment. It 

has presented evidence to establish that she accepted a payment at the time of deposit, which she 

 8

 5 U.S.C. § 8129(b). 

9

 20 C.F.R. § 10.433(a). 

10 Id. 
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knew or should have known to be incorrect.11 Thus, the Board finds that appellant was at fault in 

creating the overpayment.12 

LEGAL PRECEDENT -- ISSUE 3 

In response to a preliminary notice of overpayment, an individual may present evidence 

to OWCP in writing or at a prerecoupment hearing. The evidence must be presented or the 

hearing requested within 30 days of the date of the written notice of overpayment. Failure to 

request the hearing within this 30-day time period shall constitute a waiver of that right.13 

The only review of a final decision concerning an overpayment is an appeal to the 

Board. The provisions of 5 U.S.C. §§ 8124(b) and 8128(a) regarding hearings and 

reconsideration do not apply to a final overpayment decision.14

ANALYSIS -- ISSUE 3 

The overpayment action request form that accompanied the October 21, 2015 preliminary 

determination was specific as to the 30-day time limitation and the method for requesting a 

prerecoupment hearing, including the particular address where the signed, written request was to 

be mailed. Appellant submitted an overpayment recovery questionnaire dated and postmarked 

November 21, 2015.15 OWCP’s implementing regulations specify that evidence and argument 

regarding a prerecoupment hearing must be presented to OWCP within 30 days of the written 

notice of overpayment.16 

OWCP’s procedures for requesting a prerecoupment hearing specify that “[a]dditional 

evidence and arguments must be submitted by the claimant within 30 days of the date of the 

letter.”17 As the questionnaire was not received by OWCP within 30 days of October 21, 2015, 

OWCP’s December 16, 2015 decision denying appellant’s request for a prerecoupment hearing 

was proper under the law and facts of this case. 

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

12 With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those cases where 

OWCP seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 

ECAB 217 (2002). Therefore, the Board does not have jurisdiction over the recovery issue in this case. 

13 20 C.F.R. § 10.432. See also D.P., Docket No. 13-630 (issued August 2, 2013); M.B., Docket No. 12-19 

(issued October 5, 2012). 

14 20 C.F.R. § 10.440(b). 

15 The 30th day following October 21, 2015 was Friday November 20, 2015. 

16 20 C.F.R. § 10.432. 

17 Federal (FECA) Procedure Manual, Chapter 6.200.4.a(2), Debt Management, Initial Overpayment Actions, 

Preliminary and Final Decisions (June 2009). 
7

CONCLUSION 

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

of $2,985.20 for the period July 26 to August 22, 2015 as she received duplicate compensation 

payments. The Board further finds that OWCP properly found her at fault in creation of the 

overpayment. The Board further finds that OWCP properly denied appellant’s request for a 

prerecoupment hearing as untimely. 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated December 16 and November 24, 2015 are affirmed. 

Issued: December 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board