United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Forestville, CA, Employer 

__________________________________________ 

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Docket No. 17-1185 

Issued: September 18, 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 May 9, 2017 appellant filed a timely appeal from a March 10, 2017 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 OWCP properly determined that appellant received a 

$4,226.31 overpayment of compensation for the period October 19 to December 12, 2015; and 

(2) whether OWCP properly determined that appellant was at fault in the creation of the 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on November 5, 2014 appellant, then a 52-year-old rural carrier, 

sustained a sprain of his left shoulder (trapezius). He stopped work on November 5, 2014 and 

returned to full-time work on November 9, 2014. Appellant stopped work again on 

December 8, 2014. On February 23, 2015 he filed a Claim for Compensation (Form CA-7) 

claiming wage loss for the period January 22 to February 20, 2015, and he later filed Forms 

CA-7 claiming wage loss for various periods after February 20, 2015. On April 3, 2015 

appellant received compensation on the daily rolls for wage loss beginning February 28, 2015. 

He received two more payments on the daily roll before being placed on the periodic rolls 

beginning May 3, 2015. 

In a May 12, 2015 letter, OWCP informed appellant that, beginning May 3, 2015, he had 

total disability compensation on the periodic rolls every 28 days. It advised him that, to 

minimize the possibility of an overpayment of compensation, he must notify it immediately 

when he went back to work. OWCP informed appellant that, if he worked for any portion of the 

period for which he received compensation, he must return the payment to OWCP even if he had 

already advised it that he was working.2 

In an October 9, 2015 report, Dr. Shawn Hsieh, an attending Board-certified physical 

medicine and rehabilitation physician, indicated that appellant could return to full-duty work 

with no limitations or restrictions on October 19, 2015. 

On October 19, 2015 appellant returned to full-duty work for the employing 

establishment. 

The record reflects that, on December 14, 2015, a human resources official from the 

employing establishment, L.M., telephoned an OWCP claims examiner, S.C., and advised that 

appellant had returned to work a “month and a half ago.” On December 15, 2015 the human 

resources official telephoned another OWCP official, D.M., and advised that appellant returned 

to work on October 19, 2015. 

In a March 7, 2016 notice,3 OWCP advised appellant of its preliminary determination 

that he received a $4,226.31 overpayment of compensation for the period October 19 to 

December 12, 2015 because he received total disability compensation for this period after he 

 2

 OWCP advised appellant that, for payments sent by electronic fund transfer (EFT), a notification of the date and 

amount of payment appears on the statement from his financial institution and that he was expected to monitor his 

EFT deposits carefully, at least every two weeks. OWCP informed appellant that, if he worked for any portion of 

the period for which a deposit was made, he must advise OWCP immediately. 

3

 OWCP first sent appellant a preliminary overpayment notice dated February 10, 2016 alleging a $4,732.52 

overpayment, but it recalculated the alleged overpayment to $4,226.31 and sent him a new amended notice dated 

March 7, 2016. In connection with the February 10, 2016 preliminary overpayment notice, per OWCP’s request, 

appellant submitted an Overpayment Recovery Questionnaire (Form OWCP-20) in which he listed monthly income 

of $2,300.00, monthly expenses of $2,320.00, and zero assets. Appellant indicated that the overpayment was not his 

fault because he was supposed to get compensation starting January 27, 2015 but did not receive it until two months 

later. He also noted that he still thought OWCP owed him compensation “dating back to [January 27, 2015].” 
3

returned to full-time work on October 19, 2015.4

 OWCP also made a preliminary determination 

that he was at fault in the creation of the overpayment. It advised appellant that he could submit 

evidence challenging the fact, amount, or finding of fault, and request waiver of recovery of the 

overpayment. OWCP informed him 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 Form OWCP-20 within 30 days even if he was not requesting waiver of recovery of the 

overpayment. 

Appellant requested a prerecoupment telephone hearing with a representative of OWCP’s 

Branch of Hearings and Review. During the hearing held on February 7, 2017, appellant 

testified that he did not believe he was at fault in the creation of the $4,226.31 overpayment. He 

asserted that he did not receive his first compensation check for his November 5, 2014 

employment injury until June 2015 and that he thought that the EFT deposits he received from 

OWCP after his October 19, 2015 return to work constituted wage-loss compensation that 

OWCP owed him for December 2014 through June 2015.5

 Appellant noted that, after he 

received the November 2015 EFT deposit, he called an OWCP claims examiner, and left a 

message advising him that he had returned to work. He indicated that, after he received the 

December 2015 EFT deposit, he advised a human resources official at the employing 

establishment, L.M., that he had returned to work, and that she in turn advised OWCP of this 

fact. Appellant also noted, “Now if I was overpaid in November and December[,] why in 

April 2016 did they send me additional money, $1,500 [?]....”6

 He testified that he had 

$2,400.00 in monthly income, and $2,120.00 in monthly expenses comprised of rent ($700.00), 

food ($800.00), clothing ($100.00), utilities ($120.00), and miscellaneous household expenses 

($400.00). Appellant also testified that he had no assets other than his home, household 

furnishings, and car. 

 4

 The evidence of record contains payment records and calculation sheets showing that appellant received 

$4,226.31 in compensation for the period October 19 to December 12, 2015. The payment records reflect that, on 

November 14, 2015, appellant received a $2,165.86 EFT deposit covering the period October 18 to November 14, 

2015 and that, on December 12, 2015, he received a $2,137.80 EFT deposit covering the period November 15 to 

December 12, 2015. The November 14, 2015 payment included payment of compensation for one day (October 18, 

2015) that appellant was off work prior to his October 19, 2015 return to work, and OWCP excluded the 

compensation appellant received for October 18, 2015 when it calculated the $4,226.31 overpayment for the period 

October 19 to December 12, 2015. 

5

 The evidence of record reflects that, by the time appellant received the November 14 and December 12, 2015 

EFT deposits, all the monies that he received for wage loss between February 28 and July 1, 2015 had been paid to 

him by July 25, 2015. At the February 7, 2017 hearing, appellant asserted he still had not received wage-loss 

compensation for March 2015. The evidence of record shows that he received his first EFT deposit on April 3, 

2015, a deposit which covered wage loss for the period February 28 to March 27, 2015, and that on April 24, 2015 

he received an EFT deposit for the period March 28 to April 17, 2015. 

6

 The evidence of record shows that on July 8, 2016 appellant received an $1,508.53 EFT deposit for the period 

January 22 to February 9, 2015. The payment record indicated that, for the period February 10 to 20, 2015, 

appellant was paid through leave/holiday pay or worked and that, for the period February 21 to 27, 2015, he did not 

claim compensation. The evidence of record further reflects that appellant had not established entitlement to wageloss compensation for the period January 22 to February 9, 2015 until OWCP issued its July 5, 2016 decision 

granting wage-loss compensation for this period. 
4

In a March 10, 2017 decision, OWCP’s hearing representative determined that appellant 

received an overpayment of compensation in the amount of $4,226.31. He found that appellant 

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

overpayment. OWCP required that appellant repay the overpayment by paying $200.00 each 

month.7

 

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.8

 Section 8129(a) of FECA provides, in pertinent part, that 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.9

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.10 Section 10.500 of OWCP’s regulations provides that compensation for 

wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.11

ANALYSIS -- ISSUE 1 

 The evidence of record shows that appellant returned to full-time work for the employing 

establishment on October 19, 2015, but received total disability compensation in the amount of 

$4,226.31 after his return to work. The record contains OWCP payment records and calculations 

showing that appellant received $4,226.31 in total disability compensation for the period 

October 19 to December 12, 2015.12 However, appellant was entitled to receive such total 

disability compensation after he returned to full-time work for the employing establishment on 

 7

 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. 

8

 5 U.S.C. § 8102(a). 

9 Id. at § 8129(a). 

10 Id. at § 8116(a). The Board has held that a claimant is not entitled to receive temporary total disability and 

actual earnings for the same period. See M.S., Docket No. 16-0289 (issued April 21, 2016). 

11 20 C.F.R. § 10.500(a). 

12 Supra note 5. 
5

October 19, 2015.13 For these reasons, the Board finds that OWCP properly found that appellant 

received a $4,226.31 overpayment of compensation. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(b) of FECA provides that 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.14 A claimant who is at fault in the creation of an overpayment is not entitled to 

waiver.15 Section § 10.433 of OWCP’s regulations provides that an individual will be found at 

fault in the creation of an overpayment of compensation who: (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 to be incorrect.”16

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 his or her 

account, as the acceptance of the resulting overpayment lacks the requisite knowledge.17 It is not 

appropriate to make a finding that a claimant has accepted an overpayment through direct deposit 

until such a time as a reasonable person would have been aware that this overpayment had 

occurred.18 The Board has also held in cases involving a series of incorrect payments, where the 

requisite knowledge is established by a letter or telephone call from OWCP or simply with the 

passage of time and a greater opportunity for discovery, the claimant will be at fault for 

accepting the payments subsequently deposited.19 

ANALYSIS -- ISSUE 2 

 In the present case, OWCP found that appellant was at fault because he had accepted 

compensation payments that he knew or should have known were incorrect.20 The Board notes 

that a complete analysis of the fault issue, when a claimant has returned to work and continues to 

 13 See supra notes 10 and 11. On appeal appellant argues that the compensation checks he received in November 

and December 2015 were for monies that were part of the wage-loss compensation to which he was entitled due to 

his work-related injuries. However, the evidence of record shows that these monies covered a period after he 

returned to work on October 19, 2015, a point at which he would not have been entitled to receive total disability 

compensation. 

14 5 U.S.C. § 8129(b). 

15 Gregg B. Manston, 45 ECAB 344, 354 (1994). 

16 20 C.F.R. § 10.433. 

17 D.B., Docket No. 15-0258 (issued February 1, 2016). 

18 P.L., Docket No. 16-0127 (issued May 3, 2016). 

19 Tammy Craven, 57 ECAB 689, 693 (2006). 

20 See supra note 16. 
6

receive compensation, must properly consider the first payment after the return to work. After 

his return to work on October 19, 2015, appellant received a $2,165.86 direct deposit by EFT on 

November 14, 2014, representing his compensation for the period October 18 to 

November 14, 2015. The question is whether he had, at the time of the first deposit, accepted a 

payment he knew or should have known was incorrect. No evidence was presented by OWCP to 

establish that, at the time appellant received the November 14, 2015 deposit, he knew or should 

have known this payment was incorrect. 

As noted above, the Board has held that the claimant may not have the requisite 

knowledge with respect to the first deposit payment after a return to work.21 The Board finds the 

evidence of record does not establish that appellant was at fault in accepting the initial payment 

deposited by EFT on November 14, 2015, a payment which provided wage-loss compensation 

for the period October 18 to November 14, 2015. The Board notes that the record contains no 

evidence that he knew or should have known on November 14, 2015 that this payment was 

incorrect. Additionally, appellant was entitled to some wage-loss compensation for the period 

October 18 to November 14, 2015 and thus the circumstances surrounding the overpayment were 

more complex than usual.22 A finding that appellant was not at fault with respect to the 

November 14, 2015 EFT deposit does not establish that he was entitled to waiver of recovery of 

the portion of the overpayment covered by the deposit, i.e., October 19 to November 14, 2015.23 

On return of the case record, OWCP should properly consider the issue of waiver of this limited 

portion of the overpayment.24

The Board has held that for subsequent payments through direct deposit, a claimant may 

be found to have accepted payments he or she knew or should have known to be incorrect.25 

OWCP had advised appellant in the May 12, 2015 letter that he could not receive compensation 

for total disability during a period he had returned to work.26 By the time OWCP issued its 

December 12, 2015 direct deposit by EFT, appellant should have been aware that a deposit of 

compensation representing total disability was incorrect. After his receipt of the first direct 

 21 See supra note 17. 

22 V.D., Docket No. 16-0578 (issued November 3, 2016). Appellant would have been entitled to wage-loss 

compensation for lost time from work on October 18, 2015. 

23 M.L., Docket No. 15-1683 (issued June 20, 2016). 

24 See id. 

25 See supra note 19. 

26 In the May 12, 2015 letter, OWCP informed appellant that, beginning May 3, 2015, he started receiving total 

disability compensation on the periodic rolls every 28 days. It advised him that, to minimize the possibility of an 

overpayment of compensation, he must notify it immediately of his return to work. OWCP informed appellant that, 

if he worked for any portion of the period for which he received compensation, he must return the payment even if 

he had already advised he was again working. It advised appellant that, for payments sent by EFT, a notification of 

the date and amount of payment appears on the statement from his financial institution and that he was expected to 

monitor his EFT deposits carefully, at least every two weeks. 
7

deposit following his October 19, 2015 return to work, he was on notice that OWCP was making 

payments to him in error.27 

Appellant asserted that he felt the continuing payments represented some type of 

compensation payment for periods of wage loss prior to his October 19, 2015 return to full-time 

work. There is insufficient evidence of record to support this argument. The record does not 

indicate that appellant had a reasonable basis for believing that the deposited payments 

represented something other than continuing wage-loss compensation as forewarned in the 

May 12, 2015 letter from OWCP. During the February 7, 2017 prerecoupment hearing with an 

OWCP hearing representative, appellant testified that he believed that the EFT deposits he 

received from OWCP after his October 19, 2015 return to work constituted the amount of wageloss compensation that OWCP owed him for December 2014 through June 2015. However, the 

evidence of record reflects that, by the time appellant received the November 14 and 

December 12, 2015 EFT deposits, all the monies due him for wage loss between February 28 and 

July 1, 2015 had been paid to him by July 25, 201528 and he had not established entitlement to 

wage-loss compensation for any period prior to February 28, 2015.29 The Board accordingly 

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

compensation which occurred due to the $2,137.80 direct deposit by EFT which covered the 

period November 15 to December 12, 2015. Based upon the finding of fault for this period, 

appellant is not entitled to waiver of recovery of this portion of the overpayment.30 

CONCLUSION 

 The Board finds that OWCP properly determined that appellant received a $4,226.31 

overpayment of compensation for the period October 19 to December 12, 2015. The Board 

further finds that appellant was not at fault regarding the portion of the $4,226.31 overpayment 

for the period October 19 to November 14, 2015, and the case is remanded to OWCP to 

determine whether waiver of the recovery of the overpayment is warranted. The Board further 

finds that OWCP properly found that appellant was at fault for the remaining portion of the 

$4,226.31 overpayment of compensation for the period November 15 to December 12, 2015 and, 

therefore, is ineligible for waiver of recovery for this remaining portion. 

 27 See T.B., Docket No. 16-1807 (issued February 2, 2017). 

28 With regard to appellant’s claim at the February 7, 2017 hearing that he still had not received wage-loss 

compensation for March 2015, the evidence of record reflects that, on April 3, 2015, he received an EFT deposit 

which covered wage loss for the period February 28 to March 27, 2015 and that, on April 24, 2015, he received an 

EFT deposit which covered wage loss for the period March 28 to April 17, 2015. 

29 Supra note 6. 

30 See supra notes 14 and 15. 
8

ORDER 

IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of 

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

to OWCP for further consideration consistent with this decision. 

Issued: September 18, 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