United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Appellant 

and 

DEPARTMENT OF THE ARMY, Fort Polk, LA, 

Employer 

__________________________________________ 

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Docket No. 17-0202 

Issued: August 24, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 8, 2016 appellant, through counsel, filed a timely appeal from a 

September 21, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of the case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

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

amount of $56,461.27 for the period January 27, 2013 to April 14, 2015; and (2) whether OWCP 

properly denied waiver of the overpayment. 

On appeal counsel asserts that the September 21, 2016 decision is “contrary to law and 

fact.” 

FACTUAL HISTORY 

On August 9, 2012 appellant, then a 44-year-old heavy mobile equipment repairer, was 

injured when he fell approximately eight feet at work. He stopped work that day and was 

released to limited duty on August 20, 2012. OWCP had authorized medical treatment as it had 

originally appeared to be a minor injury with minimal time lost from work. As the medical 

expenses exceeded $1,500.00, it formally adjudicated the claim. On December 10, 2012 OWCP 

accepted concussion, contusion of left buttock, and left hip region enthesopathy. On 

December 28, 2012 it expanded the accepted conditions to include other joint derangement of the 

left pelvic region and thigh,3 and on July 18, 2013 lumbar disc protrusion at L5-S1 was also 

accepted. Appellant filed claims for compensation (Forms CA-7) for wage loss beginning 

January 27, 2013. OWCP paid him intermittent wage-loss compensation on the supplemental 

rolls until he was placed on the periodic rolls in April 2013. 

Appellant had resumed federal civilian employment following his March 8, 2012 

discharge from active duty military service. The employing establishment advised that his heavy 

mobile equipment repairer position was a dual status position. Thus, appellant was required to 

maintain membership in the Army Reserve as a condition of his employment. The employing 

establishment reported that appellant’s military pay for the year prior to his date of injury was 

$59,220.34. Accordingly, appellant’s weekly military pay rate was determined to be $1,138.85 

($59,220.34 divided by 52 weeks) and his weekly civilian base pay rate was $1,090.86, his pay 

rate on the date of injury. OWCP calculated his weekly pay rate for compensation purposes by 

adding the two salaries for a gross weekly pay rate of $2,229.71. Appellant’s weekly pay rate on 

the periodic rolls was $2,229.71. 

In an October 31, 2013 memorandum, the employing establishment informed OWCP that 

the previously reported military pay rate of $59,220.34 was incorrect. The correct amount of the 

military pay received by appellant in the year prior to the date of injury, which had been verified 

by the Reserve Pay Office, was $40,895.00.4

 In January 30, 2014 correspondence, the 

 3

 On February 13, 2013 a left hip acetabular labral tear was surgically repaired. OWCP authorized the procedure. 

4

 The employing establishment also advised OWCP that, although appellant was out on total disability, he had 

attended his monthly Army Reserve duty on June 1 to 2, July 13 to 28, 2013 (annual training), August 4 to 5 and 

September 7 to 8, 2013. In later correspondence, additional dates of Reserve duty which appellant had attended 

were listed as November 1 to 3 and December 7 to 8, 2013. The employing establishment noted that, as appellant’s 

military pay had already been included in his FECA compensation, this additional remuneration to appellant should 

be considered a prohibited dual benefit to which appellant should not be entitled. It requested OWCP to include that 

as an additional overpayment. The employing establishment also requested a second opinion evaluation to 

determine appellant’s work capacity. 
3

employing establishment again advised that, based upon another recent case review, the correct 

amount of military pay that appellant had received in the previous year was $11,138.30.5 

On July 2, 2014 OWCP issued a preliminary finding of an overpayment of compensation 

in the amount of $47,450.54 for the period January 27, 2013 to May 31, 2014. The overpayment 

had been created because the employing establishment had provided an incorrect pay rate for 

appellant’s military pay. Appellant was found to be without fault. An attached memorandum 

noted that appellant’s base weekly pay rate for the date-of-injury position was $1,090.86 with a 

corrected additional weekly pay for military service of $214.20, based on his prior year annual 

military pay of $11,138.30. OWCP noted that the earlier listed annual military pay rates of 

$59,220.34 and $40,895.52 were incorrect. Appellant’s compensation was adjusted to reflect a 

corrected weekly military pay rate of $214.20 ($11,138.30 divided by 52 weeks). That amount 

of $214.20, plus the weekly base pay for his date-of-injury position of $1,090.86, provided a new 

weekly pay rate of $1,305.06. 

OWCP provided appellant with an overpayment action request form and an overpayment 

recovery questionnaire (Form OWCP-20). It afforded him 30 days to respond. 

Appellant timely requested a prerecoupment hearing with OWCP’s Branch of Hearings 

and Review. He submitted a completed overpayment recovery questionnaire indicating income 

of $7,600.00 and expenses of $7,358.00. 

On July 22, 2014 the employing establishment disputed the finding of no fault. It noted 

that appellant had been notified on October 29, and November 1 and 13, 2013 that an error had 

been discovered in reporting his military pay to OWCP, that he should not spend the additional 

money, and that he would be required to return it. The employing establishment indicated that 

appellant had also been informed that he was not entitled to receive any additional military 

training pay while receiving FECA compensation for the same period. 

On July 25, 2014 appellant’s treating physician Dr. Clark A. Gunderson, an attending 

Board-certified orthopedic surgeon, advised that appellant could return to modified duty with 

lifting restricted to 10 pounds. Appellant accepted a full-time light-duty position on July 29, 

2014 and returned to work that day. He thereafter continued to receive intermittent 

compensation for medical and therapy appointments. 

At the hearing, held on February 10, 2015, counsel and appellant questioned the amount 

of the overpayment. Appellant testified that he had been on active military duty from July 2008 

to March 2012 and, after his return to civilian work in March 2012, he received both military 

reserve pay and civilian pay. His monthly expenses were discussed, and the hearing 

representative requested additional financial information. 

On March 9, 2015 the employing establishment verified that appellant’s military reserve 

membership was a condition of his civilian employment and that he had performed active duty 

 5

 The employing establishment reiterated that appellant continued to receive military pay for his reserve duty for 

the same period he was receiving FECA compensation, which already incorporated his military pay into his weekly 

pay rate. 
4

service until being discharged on March 8, 2012. It confirmed that his active duty status was 

performed with his consent and not as an involuntary Presidential call. The employing 

establishment noted that in the year prior to the date of injury, appellant had attended two-day 

military reserve training weekends in May, June, July and August 2012 for which he received 

$718.60 for each two-day tour.6

By decision dated April 28, 2015, an OWCP hearing representative noted the March 9, 

2015 correspondence and found that the overpayment had been calculated based on military pay 

in the amount of $11,138.30 whereas, because appellant had volunteered for active duty and was 

not part of an involuntary Presidential call, the only reserve earnings that could be included in his 

rate of pay were $2,874.40, for his periods of reserve duty each month from May through August 

2012. She set aside the July 2, 2014 decision and remanded the case to OWCP to issue a new 

preliminary overpayment determination reflecting actual reserve pay of $2,874.40 and to 

recalculate the overpayment of compensation. The hearing representative noted that appellant 

could submit additional evidence to prove that his active duty was in fact based on an 

involuntary Presidential call. Otherwise, the employing establishment’s statement that he 

volunteered for the active duty would be accepted. 

On April 30 and August 10, 2015 appellant forwarded additional information regarding 

his reserve status, including military service orders. He maintained that his Army reservist duty 

was required as a condition of his employment and that, in the year prior to his injury, until 

March 8, 2012, he was receiving active duty pay. Appellant provided a copy of an active duty 

service order dated June 14, 2011, which noted that he was to report that day for participation in 

“reserve component warriors in transition medical retention processing program for completion 

of medical evaluation and treatment.” The authority cited was 10 U.S.C. § 12301(h).7

 

On December 22, 2015 OWCP issued a preliminary finding of an overpayment in the 

amount of $56,461.27 for the period January 7, 2013 to April 14, 2015 because appellant’s 

FECA compensation had been based on an incorrect military pay rate. Appellant was again 

found without fault. An overpayment worksheet dated December 3, 2015 indicated that the 

correct pay rate for compensation purposes included appellant’s base civilian weekly pay rate of 

$1,090.86 with the additional weekly military pay of $55.28 (the total pay for military reserve 

training of $2,874.40 divided by 52 weeks). This yielded a weekly pay rate of $1,146.14 

($1,090.86 plus $55.28 = $1,146.14). The memorandum indicated that the total compensation 

paid at the incorrect pay rate was $122,414.94, and the correct amount of compensation was 

$65,953.67, which yielded an overpayment of compensation of $56,461.27. OWCP provided 

appellant an overpayment action request form and an overpayment recovery questionnaire (Form 

OWCP-20). It afforded him 30 days to submit a response. 

 6

 The dates for the monthly military reserve duty were listed as May 19 to 20, June 2 to 3, July 14 to 15, and 

August 4 to 5, 2012. 

7

 Appellant also provided a copy of a service order from June 2008 which ordered him to active duty as a member 

of his Reserve Component unit for 365 days for the purpose of mobilization for Operation Enduring Freedom. 

Service orders dated May 2009 and April 2010 extended that active duty, ordering him to report for duty on July 6, 

2009 and July 2, 2010 respectively. The authority cited for those orders was 10 U.S.C. § 12301(d). 
5

Appellant timely requested a prerecoupment hearing. On June 23, 2016 OWCP 

forwarded a second overpayment recovery questionnaire, advising appellant that it was 

necessary, along with supporting financial documentation, for the determination of waiver and a 

reasonable repayment collection. 

At the hearing, held on August 2, 2016, counsel argued that the preliminary overpayment 

decision was incomprehensible and that appellant should not be penalized for mistakes made by 

the employing establishment and OWCP. The hearing representative advised appellant of the 

importance of submitting the overpayment recovery questionnaire. 

In correspondence dated August 24, 2016, the employing establishment again confirmed 

that a condition of appellant’s employment was membership in a military reserve component. 

Copies of Army Reserve policies and personnel records regarding appellant were provided. 

These included an order to active duty in support of Operation Enduring Freedom beginning 

July 2, 2008, which was extended until March 8, 2012. The employing establishment also 

forwarded a copy of R.E.,8

 an overpayment case in which the Board explained the meaning of a 

“Presidential call.” 

By decision dated September 21, 2016, an OWCP hearing representative found that the 

evidence of record established that appellant’s active duty service in the year preceding his 

employment injury was not based on an involuntary Presidential call. She further found an 

overpayment in the amount of $56,461.27 for the period January 27, 2013 to April 14, 2015, and 

that appellant was without fault in creating the overpayment. The hearing representative denied 

waiver because appellant had not provided a completed overpayment recovery questionnaire or 

supporting financial documentation needed to determine waiver. She ordered repayment in full. 

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 or her duty.9 Section 8129(a) of FECA provides, in pertinent part: 

“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.”10 

Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay 

the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his 

monthly pay (or 75 percent if the employee has a spouse or dependents), which is known as his 

 8

 Docket No. 08-1728 (issued April 10, 2009). 

9

 5 U.S.C. § 8102(a). 

10 Id. at § 8129(a). 
6

basic compensation for total disability.”11 Section 8101(4) of FECA defines “monthly pay” for 

purposes of computing compensation benefits as follows: “[T]he monthly pay at the time of 

injury, or the monthly pay at the time disability begins, or the monthly pay at the time 

compensable disability recurs, if the recurrence begins more than six months after the injured 

employee resumes regular full-time employment with the United States, whichever is 

greater....”12 OWCP’s regulations define “disability” as “the incapacity, because of an 

employment injury, to earn the wages the employee was receiving at the time of injury.”13 

OWCP procedures provide that reservist wages are included in the rate of pay where 

membership in the reserve or National Guard is a condition of employment.14 Further, OWCP 

procedures provide that wages earned as an activated reservist or National Guard member are not 

included in determining the rate of pay unless the activation is a result of an involuntary 

presidential call under § 12301(a), § 12302, or § 12304 of Title 10, United States Code.15 

FECA further provides requirements for determining the monthly pay. Section 

8114(d)(2) provides that if the employee did not work in employment in which he was employed 

at the time of his injury during substantially the whole year immediately preceding the injury, but 

the position was one which would have afforded employment for substantially a whole year, the 

average annual earnings are a sum equal to the average annual earnings of an employee of the 

same class working substantially the whole immediately preceding year in the same or similar 

employment by the United States in the same or neighboring place, as determined under 

paragraph (1) of this subsection.16

ANALYSIS -- ISSUE 1 

The record reflects that at the time of the August 9, 2012 employment injury, appellant 

had been working in federal employment as a civilian since March 8, 2012 and also maintained 

membership in the Army Reserve as a condition of his federal civilian employment. In the year 

prior to his August 9, 2012 injury, appellant had been on full-time active duty for approximately 

seven months (from August 9, 2011 until his discharge from active duty on March 8, 2012). The 

Board finds that the evidence of record is sufficient to affirm the fact of overpayment, but the 

evidence is insufficient to affirm the amount of overpayment based on several deficiencies. 

As appellant’s membership in the Army Reserve was a condition of his employment, his 

rate of pay would include any eligible military pay he received in the year prior to the date of 

 11 Id. at § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three-fourths 

of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b). 

12 5 U.S.C. § 8101(4). 

13 20 C.F.R. § 10.5(f). 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.6(a)(11) and 

7(b)(6). 

15 Id. at Chapter 2.900.7(b)(5); see also R.E., Docket 08-1728 (issued April 10, 2009). 

16 5 U.S.C. § 8114(d)(2). 
7

injury.17 Active duty pay, however, is only included in the rate of pay calculation if that active 

duty call up was based on an involuntary Presidential call, under 10 U.S.C. § 12301(a), § 12302, 

or § 12304.18 

In this case, OWCP properly determined that appellant’s call to active duty was not 

pursuant to an involuntary Presidential call, and therefore was properly not included in the rate of 

pay. The determining factor as to whether appellant’s active duty pay would be included in the 

rate of pay depends on the authority by which appellant was called to active duty. The military 

service order dated June 14, 2011 (covering the year prior to his date of injury) indicated that he 

was to report that day to participate in the reserve component warriors in transition medical 

retention processing program for completion of medical evaluation and treatment. The authority 

cited was 10 U.S.C. § 12301(h), which provides that a member of a reserve component, with his 

or her consent, may be ordered to active duty to receive authorized medical care, to be medically 

evaluated for disability or other purposes, or complete a required Department of Defense health 

care study. Therefore, there is no evidence to support that appellant’s military active duty in the 

year prior to the August 9, 2012 employment injury was based on an involuntary Presidential 

call, under 10 U.S.C. § 12301(a), § 12302, or § 12304.19 

The Board finds that OWCP also properly determined that the only military pay that 

appellant received in the year prior to his date of injury that was eligible for inclusion in his rate 

of pay was the pay he received from monthly reserve training duty.20 Accordingly, the Board 

finds that the military component of his rate of pay was properly set at $2,874.40, which was 

$718.60 for each two-day tour of Reserve training in May, June, July, and August 2012, or a 

weekly amount of $55.28. 

The Board finds, however, that OWCP did not properly determine appellant’s date-ofinjury pay consistent with 5 U.S.C. § 8114(d)(2). This provision provides that if the employee 

had not worked in the employment in which he was employed at the time of his injury during 

substantially the whole year immediately preceding the injury, but the position was one which 

would have afforded employment for substantially a whole year, the average annual earnings are 

a sum equal to the average annual earnings of an employee of the same class working 

substantially the whole immediately preceding year in the same or similar employment.21 In the 

case at hand, appellant has not disputed the rate of pay for his civilian position, nor has he 

disputed the figure used for that date-of-injury position. However, appellant had been working 

for only five months following his March 8, 2012 discharge from active duty, when he was 

injured on August 9, 2012 and the pay rate must be consistent with the statutory requirements in 

situations such as these. Accordingly, although the weekly pay rate may be the same as that 

already calculated, the Board finds, nevertheless, that the rate of pay for appellant’s date-of-

 17 Supra note 13. 

18 Supra note 14. 

19 Id. 

20 Supra note 13.

21 Supra note 16. 
8

injury civilian position has not been determined following the statutory provisions of FECA and 

must be remanded for proper development of that aspect of the overpayment. 

Following the August 9, 2012 injury, appellant received FECA compensation for total 

disability beginning January 27, 2013 until he returned to work on July 29, 2014, and thereafter 

for intermittent compensation for medical and therapy appointments until April 14, 2015 based 

on the previously determined rate of pay of $2,229.71.22 The Board finds that OWCP properly 

determined the period of overpayment. 

Further, the Board notes that the employing establishment notified OWCP that during 

this period of overpayment, while receiving FECA compensation, appellant continued to 

participate and be paid for military weekend training. This would be a prohibited dual benefit 

under section 8116 of FECA.23 Upon remand, the employing establishment should be requested 

to provide supporting documentation to establish appellant’s active participation in military 

reserve duty during the same period for which he also received FECA compensation for total 

disability and the amount of the overpayment should be revised as appropriate. 

The case will be remanded to OWCP to be followed by a de novo decision consistent 

with the issues presented herein. In view of the Board’s holding, the issue of waiver will not be 

addressed at this time.24

CONCLUSION 

The Board finds this case is affirmed as to the fact and period of overpayment, but is not 

in posture for decision with regard to the amount of overpayment. 

 22 The record reflects that his disability apparently did not also disqualify him from continuing his military 

reserve duty. See supra note 5. 

23 Section 8116 of FECA defines the limitations on the right to receive compensation benefits. This section 

provides that while an employee is receiving compensation, the employee may not receive salary, pay, or 

remuneration of any type from the United States, except in return for service actually performed; pension for service 

in the Army, Navy, or Air Force; other benefits administered by the Department of Veterans Affairs unless such 

benefits payable for the same injury or the same death. 5 U.S.C. § 8116. 

24 See T.M., Docket No. 15-0149 (issued March 9, 2015). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 21, 2016 decision of the Office of 

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

for further proceedings consistent with this opinion of the Board. 

Issued: August 24, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board