United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.R., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Beaumont, TX, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1374 

Issued: September 16, 2016 

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 June 5, 2015 appellant filed a timely appeal from a May 6, 2015 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). Pursuant to 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 $4,708.79 during the period August 24 through December 13, 2014; and (2) whether 

OWCP properly found appellant was at fault in creating the overpayment thereby precluding 

waiver of recovery of the overpayment. 

FACTUAL HISTORY 

On April 25, 2014 appellant, then a 55-year-old maintenance worker supervisor/general 

foreman, filed a claim for a March 15, 2014 traumatic injury (Form CA-1) when he slipped and 

fell on his right side while in the performance of his duties. He claimed injury to his right hand, 

right elbow, right shoulder, right knee, and lower back. OWCP administratively handled the 

claim to allow for payment of a limited amount of medical expenses. On July 7, 2014 it formally 

adjudicated the claim as the medical bills exceeded $1,500.00. The claim was accepted for right 
2

closed fracture of base of other metacarpal bones and benign neoplasm of connective and other 

soft issue of right upper limb, including right shoulder. The record reflects that appellant used 

sick leave from May 8 to June 29, 2014 and leave without pay for the period June 30 to 

August 23, 2014. 

By e-mail dated August 26, 2014, the employing establishment informed OWCP that 

appellant had filed two claims for the same date of injury, March 15, 2014. Appellant had 

received continuation of pay from March 24 through May 7, 2014 pursuant to the first claim, 

OWCP File No. xxxxxx243. OWCP further noted that appellant had received wage-loss 

compensation from June 30 until August 10, 2014. Appellant remained off work as of 

August 11, 2014. 

In a September 3, 2014 letter, OWCP notified appellant that he would be receiving 

compensation payments through the periodic compensation rolls. To minimize the possibility of 

an overpayment of compensation, appellant was instructed to notify OWCP immediately when 

he returns to work. OWCP noted that the first payment was for the period June 30 to July 12, 

2014 for a net amount of $2,048.99. Regular payments on the periodic compensation rolls would 

be paid every 28 days, with the first payment commencing for the period August 24 to 

September 20, 2014 for a net amount of $4,708.79. For payments sent by electronic funds 

transfer (EFT), a notification of the date and amount of payment will appear on the statement 

from his financial institution. Appellant was expected to monitor his EFT deposits carefully, at 

least every two weeks. 

On September 20, 2014 appellant received his first periodic rolls payment for the period 

August 24 to September 20, 2014. 

On November 17, 2014 OWCP received notification from appellant that he would be 

using his available sick leave while undergoing medical treatment, therefore he should be 

removed from the periodic rolls. It also received a Form CA-3, Report of Termination of 

Disability/and or Payment, from the employing establishment on November 20, 2014. The 

employing establishment noted that appellant had been using sick leave since August 24, 2014. 

It advised that since appellant had been paid sick leave by the employing establishment and 

wage-loss compensation from OWCP, appellant wanted to repay the compensation benefits that 

it had issued. Appellant continued to receive compensation on the periodic compensation rolls 

through December 13, 2014.1

 

Appellant received compensation via direct deposit for the period August 24 through 

December 13, 2014, in the amount of $18,467.48. In a compensation calculation worksheet, 

OWCP noted that appellant started using his own leave as of August 24, 2014. It found that for 

the period August 24 through December 13, 2014, appellant had an overpayment in the amount 

of $18,467.48. For the period August 24 through September 20, 2014, he received a net amount 

of $4,708.79; for the period September 21 through October 18, 2014, appellant received a net 

amount of $4,616.87; for the period October 19 through November 15, 2014, he received a net 

amount of $4,541.65; for the period November 16 through December 13, 2014, appellant 

received a net amount of $4,600.17. 

 1

 On November 18, 2014 OWCP expanded appellant’s claim to include additional conditions of sprain of 

shoulder and upper arm, supraspinatus right; other affections of shoulder region not elsewhere classified, right. 
3

By letter dated February 6, 2015, OWCP advised appellant of a preliminary 

determination of an overpayment of compensation in the amount of $18,467.48 for the period 

August 24 through December 13, 2014 as he had been drawing pay through sick leave while 

receiving compensation for total disability on the periodic rolls. It also determined that he was at 

fault in the creation of the overpayment as he had accepted payments that he knew or should 

have known were incorrect as he should have reasonably been aware that he was not entitled to 

total disability compensation for eight hours a day while being on paid sick leave. OWCP 

advised appellant to complete an OWCP-20 overpayment recovery questionnaire and submit 

supporting financial documents, as this was necessary information concerning the issues of 

waiver and recovery of the overpayment. 

On February 17, 2015 appellant indicated that the initial payment of $4,708.79 for the 

period August 24 through September 20, 2014 was “just” compensation. He contended that the 

correct overpayment amount was $13,758.69 and attached a check in that amount. Appellant 

argued that he had not received compensation for the period July 27 through August 23, 2014 

and thus he was entitled to the first payment of compensation that he received on 

September 20, 2014. He submitted copies of OWCP’s benefit statements, copies of earning and 

leave details for periods June 29 to July 12; July 13 to July 26; and July 27 to August 23, 2014. 

Appellant also submitted Web TA certified time and attendance summaries which validated that 

he used 160 hours of leave without pay from July 27 through August 23, 2014. He noted that he 

notified his employing establishment and asked OWCP to remove him from the periodic rolls for 

workers’ compensation. Appellant stated that he would retire on December 31, 2014. He did 

not submit a completed Form OWCP-20. 

On March 26, 2015 OWCP received a check from appellant in the amount $13,758.69. 

By decision dated May 6, 2015, OWCP finalized its preliminary determination that an 

overpayment for the period August 24 through December 13, 2014 in the amount of $4,708.79 

had occurred for which appellant was with fault because he knew or reasonably should have 

known that the payment was incorrect. The original overpayment of $18,467.48 was adjusted to 

$4,708.79 as appellant had repaid $13,758.69. 

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 duty.2 FECA, however, also places limitations on an employee’s right to receive 

compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he 

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

circumstances.3

 The Board determined that if an employee receives sick leave from the 

employing establishment at the same time he is being paid compensation, this will cause an 

overpayment.4

 2

 5 U.S.C. § 8102(a). 

3 Id. at § 8116(a). 

4 E.V., Docket No. 10-1284 (issued February 3, 2011). 
4

ANALYSIS -- ISSUE 1 

Appellant is not entitled to receive wage-loss compensation under FECA if he is 

receiving sick leave from the employing establishment. The record establishes that appellant 

began using and receiving sick leave from the employing establishment on August 24, 2014. 

OWCP determined that appellant received an overpayment of compensation for the period 

August 24 through December 13, 2014 as he received sick leave from the employing 

establishment at the same time he received wage-loss compensation under FECA. In its 

preliminary overpayment determination OWCP found the entire amount of compensation he 

received for this time period, $18,467.48, to be an overpayment. Before issuance of the final 

overpayment decision, appellant repaid OWCP $13,758.69. OWCP therefore concluded in its 

final overpayment decision that appellant had been overpaid in the amount of $4,708.79. 

The record substantiates that for the period August 24 through December 13, 2014, 

appellant received $18,467.48 in compensation while on the periodic compensation rolls. For 

the period August 24 through September 20, 2014, appellant received a net amount of $4,708.79; 

for the period September 21 through October 18, 2014, he received a net amount of $4,616.87; 

for the period October 19 through November 15, 2014, appellant received a net amount of 

$4,541.65; for the period November 16 through December 13, 2014, he received a net amount of 

$4,600.17, for a total amount of $18,467.48. Appellant has not disputed the fact of overpayment. 

He conceded the overpayment and repaid OWCP $13,758.69. The final amount of overpayment 

was therefore $4,708.79. The Board finds that OWCP properly determined that an overpayment 

of $4,708.79 was created in this case. 

Appellant alleges that the amount of $4,708.79 was not an overpayment because he did 

not receive compensation during the period July 27 through August 23, 2014. The record 

indicates that appellant used leave without pay during the period July 27 through 

August 23, 2014. The record, however, remains unclear as to whether appellant received 

compensation during this time period. The record in this regard is complicated by the fact that 

appellant was also in receipt of compensation for the same date of injury under another OWCP 

claim number. Appellant can pursue the issue of entitlement to compensation for the period 

July 27 through August 23, 2014 with OWCP. The record is clear that this appeal pertains to 

compensation appellant received during the period August 24 to December 13, 2014, and OWCP 

properly determined that amount of overpayment for this period, in question. 

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 

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

conscience.5 A claimant who is at fault in creating the overpayment is not entitled to waiver.6 

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 

 5

 5 U.S.C. § 8129(b). 

6 See Robert W. O Brien, 36 ECAB 541, 547 (1985). 
5

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. 

Whether or not OWCP determines that individual was at fault with respect to the creation 

of the overpayment depends on the circumstances surrounding the overpayment. The degree of 

care expected may vary with the complexity of the circumstances and the individual’s capacity to 

realize that he is being overpaid.7

ANALYSIS -- ISSUE 2 

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

he accepted payments he knew or should have known to be incorrect. 

The Board finds that appellant was at fault in creating the overpayment in the amount of 

$4,708.79. Appellant acknowledged, and the record establishes, that he received compensation 

for the period August 24 to December 13, 2014 while he also requested and was paid sick leave 

from the employing establishment. OWCP informed appellant by letter dated September 3, 2014 

that he would receive periodic rolls payments, with the regular first payment to be paid for the 

period August 24 to September 20, 2014. Appellant wrote to OWCP on November 17, 2014 

noting that he should be taken off the periodic compensation rolls because he was using his sick 

leave. He was thus aware or reasonably should have been aware that he was not entitled to 

receive both wage-loss compensation and leave pay for the same period of time, i.e., that he was 

not entitled to be paid twice for the same period of time.8 The Board finds that appellant is at 

fault in the creation of the overpayment from August 24 through December 13, 2014 because he 

accepted payments that he knew or should have known to be incorrect. That OWCP may have 

been negligent in issuing the compensation check to appellant does not mitigate this finding.9 Its 

finding that appellant was at fault in the creation of the overpayment is proper under the facts 

and the circumstances of this case. As appellant is at fault in the creation of the overpayment 

from January 13 to February 28, 2005, he is not eligible for waiver. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation during the period August 24 through December 13, 2014 in the amount of 

$4,708.79. The Board further finds that OWCP properly determined that he was at fault in 

creating the overpayment of compensation, thereby precluding waiver of recovery of the 

overpayment. 

 7 C.D., Docket No. 12-193 (issued August 2, 2013). 

8 R.D., Docket No. 08-1340 (issued January 6, 2009). 

9 See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 6, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: September 16, 2016 

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