United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

West Sacramento, CA, Employer 

__________________________________________ 

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Docket No. 16-0986 

Issued: September 1, 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 April 8, 2016 appellant filed a timely appeal of a March 10, 2016 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 to 

consider the merits of the case. 

ISSUES 

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $662.71 for the period September 26 through October 2, 2015; and (2) whether 

appellant was at fault in the creation of the overpayment such that repayment is not subject to 

waiver of recovery. 

FACTUAL HISTORY 

On July 20, 2015 appellant, then a 46-year-old letter carrier filed an occupational disease 

claim (Form CA-2) alleging that he developed stiffness and pain in his right knee with swelling. 

 1

 5 U.S.C. § 8101 et seq.
2

On September 4, 2015 OWCP accepted his claim for sprain of the right knee and leg as well as 

tear of the right medial meniscus. In the September 4, 2015 letter, it notified appellant that he 

was to immediately inform it upon his return to work to avoid an overpayment of compensation. 

OWCP also noted that, if he worked during any period covered by a compensation payment that 

he had to return the payment to OWCP. 

Appellant filed a claim for compensation (Form CA-7) requesting compensation for leave 

without pay from August 29 through September 18, 2015. His attending physician released him 

to return to full work on September 24, 2015. Appellant returned to full duty on 

September 26, 2015. He filed a second CA-7 form on September 29, 2015 requesting leave 

without pay from September 19 through 25, 2015. The September 29, 2015 Form CA-7 

indicated that appellant returned to full duty on September 26, 2015. 

On October 1, 2015 OWCP issued appellant compensation benefits from August 29, 

through October 2, 2015 in the amount of $4,276.01. It determined on October 23, 2015 that he 

was not entitled to compensation from September 26 through October 23, 2015 in the amount of 

$797.40. On October 28, 2015 OWCP determined that appellant was entitled to compensation 

from September 26 through October 2, 2015 for 6.30 hours of leave without pay in the amount of 

$134.69 for this period. 

In a preliminary determination dated February 8, 2016, OWCP determined that appellant 

received a $662.71 overpayment because he returned to full-time work on September 26, 2015, 

but received compensation for total disability through October 2, 2015. It reported that the 

amount of the overpayment did not include a total of 6.3 hours of leave without pay that he 

utilized for physical therapy visits on September 26 and October 1, 2015. OWCP provided 

appellant with an overpayment recovery questionnaire, (OWCP-20) as well as his appeal rights. 

By decision dated March 10, 2016, OWCP found that appellant had received an 

overpayment of compensation in the amount of $662.71 as he returned to work on a full-time 

basis on September 26, 2015, but continued to receive compensation for total disability through 

October 2, 2015. It found that he was at fault in the creation of the overpayment as he accepted a 

payment that he knew or reasonably should have known was incorrect. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA2

 provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.3

 When an overpayment has been made to an individual 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 the individual is entitled.4

 2

 5 U.S.C. § 8102. 

3 Id. 

4

 5 U.S.C. § 8129(a). 
3

A claimant is not entitled to receive temporary total disability and actual earnings for the 

same period.5

 OWCP regulations provide that compensation for wage loss due to disability is 

available only for any periods during which an employee’s work-related medical condition 

prevents him or her from earning the wages earned before the work-related injury.6

ANALYSIS -- ISSUE 1 

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

of $662.71 because he had been paid in error for the period September 26 through 

October 2, 2015. Appellant had returned to full duty on September 26, 2015, but received 

compensation for disability from OWCP through October 2, 2015 except for 6.3 hours of leave 

without pay that he utilized for physical therapy visits on September 26 and October 1, 2015. As 

he received full-time wages for an eight-hour position job for the period September 26 through 

October 2, 2015, he was not entitled to disability compensation from OWCP for this same 

period. Therefore, appellant received an overpayment of compensation as calculated by OWCP. 

LEGAL PRECEDENT -- ISSUE 2 

 Section 8129(a) of FECA7

 provides that, where an overpayment of compensation has 

been made “because of an error or fact of law,” adjustment shall be made by decreasing later 

payments to which an individual is entitled. 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 [FECA] or would be 

against equity and good conscience.”8 Accordingly, no waiver of an overpayment is possible if 

the claimant is with fault in helping to create the overpayment. 

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

regulations9 provides in relevant part: 

“An individual is with fault in the creation of an overpayment who: 

(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 furnish information which he or she knew or should have 

known to be material; or 

 5 See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016). 

6 See Danny E. Haley, 56 ECAB 393 (2005); 20 C.F.R. § 10.500. 

7

 5 U.S.C. § 8129(a). 

8 Id. at § 8129(b). 

9

 20 C.F.R. § 10.433(a). 
4

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

was incorrect.”10

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.11

Even if an overpayment resulted from negligence by OWCP, this does not excuse the 

employee from accepting payment, which the employee knew or should have been expected to 

know she was not entitled.12

ANALYSIS -- ISSUE 2 

In this case, OWCP applied the third standard in determining that appellant was at fault in 

creating the overpayment. In order for it to establish that appellant was at fault in creating the 

overpayment of compensation, OWCP must establish that, at the time appellant received the 

compensation check in question, he knew or should have known that the payment was 

incorrect.13 

Each recipient of compensation benefits is responsible for taking all reasonable measures 

to ensure that payments he or she receives are proper14 and the recipient must show good faith 

and exercise a high degree of care in reporting events that may affect entitlement to or the 

amount of benefits.15 In the September 4, 2015 acceptance letter, OWCP clearly advised 

appellant that he was to immediately inform it upon his return to work to avoid an overpayment 

of compensation and that, if he worked during any period covered by a compensation payment, 

he had to return the payment to OWCP. 

Thus, appellant should have known that he could not receive wage-loss compensation 

after his return to work.16 Although the employing establishment notified OWCP of appellant’s 

return to full duty on September 25, 2015, he did not return the compensation he received. 

The Board therefore finds that appellant should have known that, at the time he returned 

to work, he was not entitled to continue to receive compensation and had an obligation to return 

payments he knew or should have known were incorrect.17 Under section 10.433(a) of OWCP’s 

 10 Id. 

11 Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006); Y.Z., Docket No. 15-1704 (issued February 4, 2016). 

12 Diana L. Booth, 52 ECAB 370 (2001). 

13 Linda E. Padilla, 45 ECAB 768, 772 (1994). 

14 Y.Z., supra note 11. 

15 Id. 

16 Id. 

17 Id. 
5

regulations, appellant is at fault. As he was at fault in creating the overpayment, appellant is not 

eligible for waiver of recovery of the overpayment of compensation.18

With respect to 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. As appellant is no longer receiving wage-loss compensation, the Board 

does not have jurisdiction with respect to the recovery of the overpayment under the Debt 

Collection Act.19 

CONCLUSION 

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

of $662.71 for the period September 26 through October 2, 2015 because he continued to receive 

compensation after his return to work. The Board further finds that OWCP properly found him 

at fault, and thus, he was not entitled to waiver of recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the March 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 1, 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 

 18 Id. 

19 Cheryl Thomas, 55 ECAB 610 (2004).