United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.F., Appellant 

and 

DEPARTMENT OF THE NAVY, U.S. MARINE 

CORPS, MARINE CORPS BASE CAMP 

BUTLER, Okinawa, Japan, Employer 

__________________________________________ 

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Docket No. 16-0436 

Issued: August 2, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 7, 2016 appellant filed a timely appeal from a December 17, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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.3

 1

 The record also contains an October 30, 2015 nonmerit decision of OWCP, but appellant has not appealed this 

decision. 

 2

 5 U.S.C. § 8101 et seq. 

 3

 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated May 5, 2016, 

the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be 

addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 16-0436 (issued 

May 5, 2016). The Board’s Rules of Procedure provide that any appeal in which a request for oral argument is not 

granted by the Board will proceed to a decision based on the case record and any pleadings submitted. 20 C.F.R. 

§ 501.5(b). 
2

ISSUES 

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

$94,981.93 overpayment of compensation; and (2) whether it properly determined that appellant 

was at fault in the creation of the overpayment of compensation, thereby precluding waiver of 

recovery of the overpayment. 

FACTUAL HISTORY 

On March 25, 1999 appellant, then a 49-year-old public works maintenance supervisor, 

filed an occupational disease claim (Form CA-2) alleging that he sustained acquired Parkinson’s 

syndrome due to working as a welder in poorly ventilated spaces for more than 20 years. He 

indicated that he first became aware of his claimed condition on December 17, 1998 and that he 

first realized on December 17, 1998 that it was caused or aggravated by his employment. 

On March 8, 2000 OWCP accepted that appellant sustained acquired Parkinson’s 

syndrome (toxic) causally related to factors of his federal employment. 

In a November 13, 2002 decision, OWCP granted appellant a schedule award for 65 

percent permanent impairment of his right upper extremity, 64 percent permanent impairment of 

his left upper extremity, 48 percent permanent impairment of his right lower extremity, and 48 

percent permanent impairment of his left lower extremity. It advised him that the schedule 

award ran for 678.96 weeks and that the “Period of Award” was August 10, 2000 to 

August 14, 2013. OWCP noted, “Your compensation stops when you have been paid for the last 

day shown in the ‘Period of Award’ above.” 

In May 2011 OWCP sent appellant a CA-1032 form, which contained questions about his 

employment activities and earnings for the prior 15 months, and requested that he complete and 

return the form. The top of the form contains a notation indicating an “Expiration Date” of 

April 30, 2014 under the listed form number. In May 2015, OWCP sent appellant another CA1032 form and requested that he complete and return the form. The top of the form contains a 

notation indicating an “Expiration Date” of May 31, 2017 under the listed form number. 

In an August 24, 2015 notice, OWCP advised appellant of its preliminary determination 

that he received a $94,981.93 overpayment of compensation for the period August 14, 2013 to 

May 30, 2015 because he continued to receive compensation for his schedule award even though 

the award ended on August 14, 2013. The record contains payment records and worksheets 

showing that the amount of schedule award compensation appellant received between August 14, 

2013 and May 30, 2015 equals $94,981.93. OWCP also made a preliminary determination that 

he was at fault in the creation of the overpayment because he was aware or should have 

reasonably been aware that the schedule award ended on August 14, 2013. It advised appellant 

that he could submit evidence challenging the fact, amount, or finding of fault and request 

waiver of the overpayment. OWCP informed appellant that he could submit additional evidence 

in writing or at prerecoupment hearing, but that a prerecoupment hearing must be requested 

within 30 days of the date of the written notice of overpayment. It requested that appellant 

complete and return an enclosed financial information questionnaire (Form OWCP-20) within 30 

days even if he was not requesting waiver of recovery of the overpayment. 
3

On September 9, 2015 appellant spoke with an OWCP official via telephone and asserted 

that he did not know his schedule award ended in 2013 because “he figured he was reevaluated 

and determined that he would be further entitled.” 

In a document postmarked September 29, 2015, appellant requested a prerecoupment 

hearing in connection with the preliminary overpayment determination. He indicated that he was 

contesting the fault finding of the preliminary overpayment determination and submitted a Form 

OWCP-20 which he completed on September 18, 2015.4

By decision dated October 30, 2015, OWCP denied appellant’s request for a 

prerecoupment hearing as untimely because it was not made within 30 days of its August 24, 

2015 preliminary overpayment determination. 

In a December 17, 2015 decision, OWCP determined that appellant received a 

$94,981.93 overpayment of compensation for the period August 14, 2013 to May 30, 2015 

because he continued to receive schedule award compensation after his schedule award ended on 

August 14, 2013. It found that appellant was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment. OWCP noted that appellant was clearly 

informed that his schedule award ended on August 14, 2013.5

LEGAL PRECEDENT -- ISSUE 1 

Section 8102(a) of 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 duty.6 Section 8129(a) of FECA provides, in pertinent part: 

“When an overpayment has been made to an individual under this subchapter 

because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”7

Section 8116(a) of FECA provides that, while an employee is receiving compensation or 

if he or she has been paid a lump sum in commutation of installment payments until the 

expiration of the period during which the installment payments would have continued, the 

 4

 Appellant indicated, “The correspondence I received in May of 2011 from OWCP concerning my award that 

states an expiration date of April 30, 2014. In April [sic] of this year (2015), I received correspondence extending 

the expiration date to May 31, 2017.... I contend that based on the correspondence I received from [OWCP] my 

payment will continue up to May 31, 2017.” 

 5

 OWCP indicated that appellant should forward a check in the amount of $94,981.93. With respect to the 

recovery of an 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). As 

appellant was not in receipt of continuing compensation at the time of OWCP’s overpayment determination, the 

Board does not have jurisdiction over the method of recovery of the overpayment in this case. See Lorenzo 

Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441. 

6

 5 U.S.C. § 8102(a). 

 7 Id. at § 8129(a). 
4

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

except in limited specified instances.8

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained acquired Parkinson’s syndrome (toxic) due to 

his work as a welder. In a November 13, 2002 decision, OWCP granted him a schedule award 

for 65 percent permanent impairment of his right upper extremity, 64 percent permanent 

impairment of his left upper extremity, 48 percent permanent impairment of his right lower 

extremity, and 48 percent permanent impairment of his left lower extremity. The period of the 

award was August 10, 2000 to August 14, 2013. However, appellant continued to receive 

schedule award payments after August 14, 2013 until these payments were stopped on 

May 30, 2015. The evidence of record shows that appellant received $94,981.93 in schedule 

award compensation from August 14, 2013 to May 30, 2015 despite the fact that his schedule 

award ended August 14, 2013 and he was not entitled to receive such monies for this period. 

Therefore, the Board finds that appellant received a $94,981.93 overpayment of compensation.9

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that where 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.10 The only exception to this requirement is a 

situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery 

by the United States may not be made when incorrect payment has been made to an individual 

who is without fault and when adjustment or recovery would defeat the purpose of this 

subchapter or would be against equity and good conscience.”11 No waiver of payment is 

possible if the claimant is not “without fault” in helping to create the overpayment.12

In determining whether an individual is not “without fault” or alternatively “at fault” in 

the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provides 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: 

(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 

 8 Id. at § 8116(a). 

9 See supra notes 8 and 9. 

 10 5 U.S.C. § 8129(a). 

 11 Id. at § 8129(b). 

 12 L.J., 59 ECAB 264 (2007). 
5

(3) Accepted a payment which he or she knew or should have 

known to be incorrect....”13

Section 10.433(b) of OWCP’s regulations provides: 

“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.”14

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly found appellant at fault in the creation of the 

$94,981.93 overpayment of compensation because he accepted payments which he knew or 

should have known to be incorrect.15 Appellant continued to accept schedule award payments 

after August 14, 2013 despite the fact that he knew or should have known that he could not 

accept such payments after his schedule award ended on August 14, 2013. He had been clearly 

advised by OWCP regarding the period of his schedule award. In the November 13, 2002 

decision granting appellant’s schedule award, OWCP advised appellant that the schedule award 

ran for 678.96 weeks and that the “Period of Award” was August 10, 2000 to August 14, 2013. 

It noted, “Your compensation stops when you have been paid for the last day shown in the 

‘Period of Award’ above.” 

On September 9, 2015 appellant spoke with an OWCP official via telephone and asserted 

that he did not know his schedule award ended in 2013 because “he figured he was reevaluated 

and determined that he would be further entitled.” However, there is no indication in the record 

that appellant had any basis to believe that he was entitled to additional schedule award 

compensation other than the amount awarded on November 13, 2002. 

On appeal appellant asserted that OWCP misled him regarding the date when his 

payments for schedule award compensation would end and therefore he was not aware that he 

impermissibly received compensation after his schedule award had ended. Appellant claimed 

that several documents advised him that the end date of his schedule award had changed. For 

example, he noted that a CA-1032 form which OWCP asked him to complete in May 2011 

contains a notation indicting an “Expiration Date” of April 30, 2014 under the listed form 

number.16 In May 2015, OWCP sent appellant another CA-1032 form containing a notation 

indicating an “Expiration Date” of May 31, 2017 under the listed form number. However, the 

“Expiration Date” of these forms clearly refers to the expiration date of each form, not the period 

of disability. These generic CA-1032 forms do not in any way inform appellant about the 

 

 13 20 C.F.R. § 10.433(a). 

 14 Id. at § 10.433(b). 

15 See supra note 14. 

16 The CA-1032 form contained questions about appellant’s employment activities and earnings for the prior 15 

months. 
6

conditions of his specific schedule award payments and they could not reasonably be interpreted 

as referring to the expiration date of his November 13, 2002 schedule award.17

When an employee is at fault in the creation of an overpayment of compensation, no 

waiver of recovery of the overpayment is possible under FECA.18 For the above-described 

reasons, OWCP properly found that appellant was at fault in the creation of the $94,981.93 

overpayment and it properly denied waiver of recovery of the overpayment. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant received a $94,981.93 

overpayment of compensation. The Board further finds that OWCP properly determined that 

appellant was at fault in the creation of the overpayment of compensation, thereby precluding 

waiver of recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the December 17, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Moreover, the CA-1032 form that appellant received in May 2015 was received almost two years after his 

schedule award ended on August 14, 2013 and, therefore, it could not in any way serve as a basis for him to 

reasonably believe in 2013 that the end date of his schedule award had been changed. 

18 See supra note 13.