United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Greensboro, NC, Employer 

__________________________________________ 

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Docket No. 17-0622 

Issued: August 9, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 4, 2017 appellant filed a timely appeal from a December 13, 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 over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant received a $1,624.80 overpayment of compensation 

for the period September 30 through October 15, 2016; (2) whether OWCP properly denied 

waiver of recovery of the overpayment. 

FACTUAL HISTORY 

On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down 

 1

 5 U.S.C. § 8101 et seq.
2

steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of 

left hip, left side lumbago with sciatica, and left hip trochanteric bursitis. Appellant stopped 

work following the injury and received wage-loss compensation on the supplemental rolls as of 

May 28, 2016 and on the periodic rolls from June 26 to October 15, 2016. 

On September 30, 2016 appellant accepted an offer of modified assignment to return to 

full-time work as a city carrier. In a telephone memorandum dated October 13, 2016, OWCP 

noted that appellant had called to advise that she had returned to full-time light-duty work on 

September 30, 2016. Appellant requested that her periodic rolls benefits be stopped. 

By letter dated October 26, 2016, OWCP made a preliminary determination that appellant 

received an overpayment of compensation in the amount of $1,624.80 from September 30 

through October 15, 2016 because she continued to receive disability compensation after her 

return to full-time work with no wage loss. It found that she was not at fault in the creation of 

the overpayment, making her eligible for waiver of recovery of the overpayment. An OWCP 

memorandum and fiscal worksheet noted that appellant was on periodic rolls and received 

compensation every 28-calendar days in the amount of $2,843.41. It divided this amount by 28 

days, and multiplied the daily rate by the 16-calendar days overpaid to calculate an overpayment 

of $1,624.80. OWCP provided appellant with an overpayment recovery questionnaire (Form 

OWCP-20) and advised that she could request a prerecoupment hearing if she wished to 

challenge the fact of overpayment or to request waiver of recovery of the overpayment. If she 

wished a waiver of the overpayment, appellant was advised to submit financial information and a 

completed overpayment recovery questionnaire (Form OWCP-20) within 30 days. 

On November 15, 2016 appellant contested the overpayment decision and requested that 

OWCP make a decision based on the written evidence on the issues of fault and possible waiver 

of overpayment. She argued that she called OWCP on September 30, 2016 to notify them that 

she was returning to work. 

On November 15, 2016 OWCP received appellant’s completed overpayment recovery 

questionnaire, which indicated that she received a net monthly income of $3,800.00. Appellant 

reported monthly household expenses totaling $2,160.00 in the amount of $400.00 for food, 

$100.00 for clothing, $700.00 for rent/mortgage, $650.00 for utilities, and $310.00 for 

miscellaneous expenses. She itemized other debts for a total $3,433.00 in monthly expenses. 

Appellant reported $60.00 in cash on hand and negative $290.00 in her checking account, 

totaling negative $230.00 in net assets. She explained that she notified OWCP as soon as she 

went back to work so that she would not receive an overpayment. 

By decision dated December 13, 2016, OWCP finalized the preliminary determination 

finding that appellant was overpaid in the amount of $1,624.80 from September 30 through 

October 15, 2016 because she continued to receive disability compensation after her return to 

full-time work. It noted that she currently owed only $878.80 as $746.01 had been recovered 

from her compensation check after she had returned to work. The decision found appellant 

without fault. The decision further found that as appellant had not responded to the preliminary 

decision or returned the overpayment questionnaire along with financial documentation as 

requested, she was not eligible for waiver of recovery. It determined that appellant could pay 

$50.00 per month beginning on January 18, 2017 to repay the debt. 
3

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA 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.2

Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits. This section of FECA provides that, while an employee is receiving compensation, he 

or she may not receive salary, pay or remuneration of any type from the United States, except in 

limited circumstances.3

 OWCP’s regulations state in pertinent part: 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.4

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

same period. OWCP’s procedures provide that an overpayment in compensation is created when 

a claimant returns to work but continues to receive wage-loss compensation.5

ANALYSIS -- ISSUE 1 

In the present case, appellant began receiving wage-loss compensation for total disability 

as of May 28, 2016. OWCP placed her on the periodic compensation rolls as of June 26, 2016. 

Appellant continued to receive compensation for total disability every 28 days, through 

October 15, 2016. The record indicates, however, that she had returned to full-time, light-duty 

work on September 30, 2016. Appellant does not contest that she returned to light-duty work on 

that date. 

As noted above, a claimant is not entitled to receive compensation for total disability 

during a period in which he or she had actual earnings. Therefore, an overpayment of 

compensation was created in this case. 

The amount of the overpayment was calculated to be $1,624.80. This represented the net 

compensation appellant was paid for the 16 calendar days from September 30 to 

October 15, 2016. No contrary evidence was submitted. The Board accordingly finds that 

OWCP properly found that an overpayment of compensation in the amount of $1,624.80 was 

created during the period September 30 to October 15, 2016. 

LEGAL PRECEDENT -- ISSUE 2 

5 U.S.C. 8129(b) provides: “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 

 2

 5 U.S.C. § 8102. 

3 Id. at § 8116(a). 

4

 20 C.F.R. § 10.500. 

5 B.H., Docket No. 09-292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004). 
4

adjustment or recovery would defeat the purpose of FECA or would be against equity and good 

conscience.”6 A claimant who is at fault in creating the overpayment is not entitled to waiver.7 

On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or 

she has done any of the following: “(1) made an incorrect statement as to a material fact which 

he or she knew or should have known to be incorrect; (2) failed to provide information which he 

or she knew or should have known to be material; or (3) accepted a payment which he or she 

knew or should have known was incorrect.” 

The Board has held that an employee who receives payments from OWCP in the form of 

direct deposit may not be at fault the first time incorrect funds are deposited into her account, as 

the acceptance of the resulting overpayment lacks the requisite knowledge.8 

ANALYSIS -- ISSUE 2 

In its October 26, 2016 preliminary decision, OWCP determined that appellant received 

an overpayment of compensation in the amount of $1,624.80 from September 30 through 

October 15, 2016 because she continued to receive disability compensation after her return to 

full-time light-duty work. It further found that she was without fault in the creation of the 

overpayment, making her eligible for waiver of recovery of the overpayment. 

The final decision dated December 13, 2016 found appellant without fault in the creation 

of the overpayment rendering her eligible for waiver of recovery of the overpayment. 

The Board finds that OWCP properly found appellant without fault, but notes that 

OWCP’s December 13, 2016 decision incorrectly found that appellant had not responded to the 

preliminary finding or contest the decision with regard to waiver of recovery of the overpayment. 

The evidence of record establishes that appellant had submitted a timely overpayment action 

request, received on November 15, 2016, contesting the overpayment decision and requesting 

waiver of recovery. 

Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is 

before OWCP at the time of its final decision,9

 it is necessary that OWCP review all evidence 

submitted by a claimant and received by OWCP prior to issuance of its final decision. As the 

Board’s decisions are final as to the subject matter appealed,10 it is crucial that all evidence 

relevant to that subject matter which was properly submitted to OWCP prior to the time of 

issuance of its final decision be addressed.11

 6

 5 U.S.C. § 8129(b). 

7 See Robert W. O’Brien, 36 ECAB 541, 547 (1985). 

8 Tammy Craven, 57 ECAB 689 (2006). 

9 See 20 C.F.R. § 501.2(c). 

10 Id. at § 501.6(c). 

11 See William A. Couch, 41 ECAB 548, 553 (1990). 
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The Board, therefore, must set aside OWCP’s December 13, 2016 decision and remand 

the case so that OWCP may fully consider the evidence that was properly submitted by appellant 

prior to the issuance of this decision, regarding the issue of waiver of recovery of the 

overpayment.12 Following such further consideration and after such further development as it 

deems necessary, OWCP shall issue a de novo decision.13 

CONCLUSION 

The Board finds that appellant received a $1,624.80 overpayment of compensation for the 

period September 30 through October 15, 2016. The Board further finds that this case is not in 

posture for decision regarding waiver of recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the December 13, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. This case is 

remanded to OWCP for further proceedings consistent with this decision. 

Issued: August 9, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 M.P., Docket No. 16-1325 (issued November 2, 2016). 

13 J.B., Docket No. 11-2005 (issued July 23, 2012).