United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.W., widow of J.W., Appellant 

and 

DEPARTMENT OF THE NAVY, MARE 

ISLAND NAVAL SHIPYARD, Vallejo, CA, 

Employer 

__________________________________________ 

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Docket No. 15-0955 

Issued: October 20, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 18, 2015 appellant filed a timely appeal from a February 18, 2015 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.2

 

ISSUES 

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

amount of $2,019.34 for the period July 27 to August 23, 2014; (2) whether she was at fault in 

the creation of the overpayment; and (3) whether OWCP properly reduced appellant’s continuing 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the February 18, 2015 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2

compensation benefits by deducting $203.00 every 28 days as a means of recovering the 

overpayment of compensation. 

On appeal, appellant reiterated her argument that she was not at fault in creating the 

overpayment. 

FACTUAL HISTORY 

The employee, a 57-year-old aircraft mechanic, quality control and metals inspector died 

on September 24, 1993 after having worked for the employing establishment for several periods 

of employment (1961 to 1969) and (1981 to 1991) where he had either heavy or light asbestos 

exposure. By decision dated May 1, 1996, OWCP ultimately accepted that appellant’s death was 

employment related and granted appellant survivor benefit compensation. Appellant had been 

receiving survivor benefits from Office of Personnel Management (OPM) from August 25, 1993 

to May 31, 1996. She retroactively elected to receive FECA benefits and by decision dated 

July 23, 1996 she was advised of her compensation benefits commencing June 1, 1996 which 

would be retroactive to August 25, 1993. Upon the employee’s death, the wife of the employee 

(appellant) filed a claim for survivor benefits claiming his death was employment related. 

On September 19, 2014 appellant advised OWCP that her bank account information on 

file was incorrect. She thought Commerce Bank had notified OWCP that her account was 

closed, but it had not. Appellant requested that her compensation payment be reissued to her 

account at New Era Bank. 

On September 26, 2014 OWCP notified appellant that if it reissued the check to her home 

address it would delay her compensation payment. To avoid a delay, appellant went through the 

electronic compensation process. New Era Bank scanned a canceled check for her and sent it to 

OWCP. OWCP received the document and advised appellant that it would reissue a direct 

payment to be deposited into her New Era Bank account on October 3, 2014. 

OWCP payment records establish that an electronic funds transfer (EFT) check in the 

amount of $2,019.34 for the period July 27 to August 23, 2014 had been deposited and processed 

through Commerce Bank on August 22, 2014. It made arrangements to cancel the EFT check 

sent to Commerce Bank and reissued appellant’s compensation payment via direct pay to New 

Era Bank. OWCP payment records establish that an EFT check in the amount of $2,019.34 for 

the period July 27 to August 23, 2014 was deposited and processed through New Era Bank on 

October 3, 2014. 

The record contains documentation indicating that Commerce Bank returned an EFT 

check dated September 19, 2014 in the amount of $2,038.30 to the treasury department. 

On January 16, 2015 OWCP issued a preliminary determination that appellant had 

received an overpayment of compensation in the amount of $2,019.34 because she received a 

double payment for the period July 27 to August 23, 2014. It found that she was at fault in 

creating the overpayment because she accepted a payment that she knew or reasonably should 

have known was incorrect. 
3

In a January 30, 2015 letter, appellant stated that she had not been overpaid and did not 

receive an additional compensation check. She explained that New Era Bank purchased 

Commerce Bank in July 2014 and failed to meet the deadline to have automatic deposits 

transferred between banks. Appellant stated that on September 19, 2014 her scheduled 

compensation check went to Commerce Bank and they told her that they had to send the check 

back to the treasury department. On October 3, 2014 she received her compensation check for 

September 2014 at New Era Bank. 

By decision dated February 18, 2015, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $2,019.34 for the 

period July 27 to August 23, 2014. It further found that she was at fault in the creation of the 

overpayment and reduced her continuing compensation benefits by deducting $203.00 every 28 

days as a means of recovering the overpayment of compensation. 

LEGAL PRECEDENT -- ISSUE 1 

FECA authorizes payment of compensation for the disability or death of an employee 

resulting from personal injury sustained while in the performance of duty.3 An overpayment 

arises where an employee receives multiple payments from OWCP for the same period of lost 

wages. Section 8129(a) of FECA provides authority for recovery of an overpayment made to an 

individual because of an error of fact or law.4 

ANALYSIS -- ISSUE 1 

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

of $2,019.34 for the period July 27 to August 23, 2014. 

On September 19, 2014 appellant advised OWCP that her bank account information on 

file was incorrect. She thought Commerce Bank had notified OWCP that her account was 

closed, but it had not. Appellant wanted her compensation payment to be reissued to her account 

at New Era Bank. OWCP made arrangements to cancel the EFT check sent to Commerce Bank, 

however, an EFT check in the amount of $2,019.34 for the period July 27 to August 23, 2014 

had already been deposited and processed through Commerce Bank on August 22, 2014. 

Nonetheless an EFT check in the amount of $2,019.34 for the period July 27 to August 23, 2014 

was also deposited and processed through New Era Bank on October 3, 2014. Thus, the record 

establishes that appellant was paid twice for the period July 27 to August 23, 2014. 

There is no evidence that appellant returned the duplicate payment. The record 

establishes that an EFT check dated September 19, 2014 in the amount of $2,038.30 was 

canceled and returned to the treasury department. However, this compensation check was for the 

period August 24 to September 20, 2014, not the period in question. Accordingly, the Board 

finds that appellant received an overpayment of compensation in the amount of $2,019.34 for the 

period July 27 to August 23, 2014. 

                                                             3

 5 U.S.C. § 8102(a). 

4 Id. at § 8129(a). 
4

LEGAL PRECEDENT -- ISSUE 2 

OWCP may consider waiving an overpayment only if the individual to whom it was 

made was not at fault in either accepting or creating the overpayment.5

 Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure that payments 

she receives from OWCP are proper.6

 Recipients must show good faith and exercise a high 

degree of care in regard to receipt of their benefits.7

 A recipient will be found to be at fault with 

respect to creating an overpayment if she accepted a payment which she knew or should have 

known to be incorrect.8

 

ANALYSIS -- ISSUE 2 

The Board finds that appellant was at fault in the creation of the overpayment. 

OWCP found appellant at fault because she accepted payment which she knew or should 

have known to be incorrect. Whether an individual is at fault in creating an overpayment 

depends on the circumstance of the overpayment.9 The degree of care expected may vary with 

the complexity of those circumstances and the individual’s capacity to realize that she is being 

overpaid.10 In determining fault OWCP applies a reasonable person standard.11 

In a January 30, 2015 letter, appellant stated that she had not been overpaid and did not 

receive an additional compensation check. She explained that that New Era Bank purchased 

Commerce Bank in July 2014 and failed to meet the deadline to have automatic deposits 

transferred. Appellant indicated that on October 3, 2014 she received her compensation check 

for September 2014 at New Era Bank. The Board finds, however, that the October 3, 2014 

compensation check was for the period July 27 to August 23, 2014, not the month of 

September 2014. 

As noted, appellant advised OWCP on September 19, 2014 that her account at Commerce 

Bank had been closed and requested that her compensation payment be reissued to her new 

account at New Era Bank. On September 26, 2014 OWCP notified her that if it reissued the 

check to her home address it would delay her compensation payment. To avoid a delay, 

appellant went through the electronic compensation process. OWCP received the electronic 

deposit document and advised her that it would reissue a direct payment to be deposited into her 

New Era Bank account on October 3, 2014. Payment records establish that an EFT check in the 

                                                             5 Id. at § 8129(b); 20 C.F.R. § 10.433(a). 

6

 20 C.F.R. § 10.433(a). 

7 Id. 

8 Id. at § 10.433(a)(3). 

9 Id. at § 10.433(b). 

10 Id.; see also M.R., Docket No. 14-0549 (issued June 11, 2014). 

11 See L.D., 59 ECAB 673, 679 (2008). 
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amount of $2,019.34 for the period July 27 to August 23, 2014 was deposited and processed 

through Commerce Bank on August 22, 2014 and an EFT check in the amount of $2,019.34 for 

the same period July 27 to August 23, 2014 was deposited and processed through New Era Bank 

on October 3, 2014. 

The Board finds that appellant is at fault in the creation of the overpayment of 

compensation for the period July 27 to August 23, 2014 because she accepted two compensation 

checks for the same period that she knew or should have known to be incorrect. Appellant 

notified OWCP that her bank account information had changed. OWCP promptly reissued her 

compensation check and deposited into her New Era Bank account on October 3, 2014. 

Appellant knew or should have known that she was not entitled to both the original payment and 

the October 3, 2014 replacement check, i.e., that she was not entitled to be paid twice for the 

same period of time.12 That OWCP may have been negligent in issuing the August 22, 2014 

check to her through Commerce Bank does not mitigate this finding.13 Even if an overpayment 

resulted from negligence by OWCP, this does not excuse appellant from accepting payment 

which she knew or should have been expected to know she was not entitled to receive.14 As 

appellant is at fault in the creation of the overpayment of compensation, she is not eligible for 

waiver of recovery.15 

LEGAL PRECEDENT -- ISSUE 3 

When an overpayment has been made to an individual who is entitled to further payments 

and no refund is made, OWCP shall decrease later payments of compensation, taking into 

account the probable extent of future payments, the rate of compensation, the financial 

circumstances of the individual and any other relevant factors so as to minimize any hardship.16 

The individual who received the overpayment is responsible for providing information about 

income, expenses, and assets as specified by OWCP.17 This information is used to determine an 

appropriate repayment schedule, if necessary.18 

ANALYSIS -- ISSUE 3 

The Board finds that OWCP properly reduced appellant’s continuing compensation 

benefits by deducting $203.00 every 28 days as a means of recovering the overpayment of 

compensation. 

                                                             12 See M.R., supra note 10. 

13 20 C.F.R. § 10.435(a); see William E. McCarty, 54 ECAB 525 (2003). 

14 See Diana L. Booth, 52 ECAB 370 (2001). 

15 20 C.F.R. § 10.441(b). 

16 Id. at § 10.441(a); see 5 U.S.C. § 8129(a). 

17 Id. at § 10.438(a). 

18 Id. 
6

Appellant failed to submit an overpayment recovery questionnaire (OWCP-20) in 

response to OWCP’s preliminary overpayment determination. As such, there is limited 

information in the record regarding her current financial circumstances. OWCP ordered that 

$203.00 be deducted from appellant’s 28-day gross compensation payments of $2,268.92. The 

8.95 percent reduction in benefits would resolve appellant’s debt in less than a year. Under the 

circumstances, the Board finds that OWCP reasonably imposed a repayment schedule of $203.00 

every 28 days to be withheld from appellant’s continuing compensation payments.19 

CONCLUSION 

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

of $2,019.34 for the period July 27 to August 23, 2014. The Board further finds that she was at 

fault in the creation of the overpayment and OWCP properly reduced her continuing 

compensation benefits by deducting $203.00 every 28 days as a means of recovering the 

overpayment of compensation. 

ORDER 

IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

                                                             19 See M.R., supra note 10.