United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, FORT LOWELL 

STATION, Tucson, AZ, Employer

__________________________________________

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Docket No. 17-1395

Issued: October 27, 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 June 12, 2017 appellant filed a timely appeal from a May 24, 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 the case.

ISSUES

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

amount of $513.29 because he concurrently received Office of Personnel Management (OPM) 

retirement benefits while receiving FECA benefits for the period August 1 through 5, 2016; and 

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

overpayment, thereby precluding waiver of recovery of the overpayment.

 

1

5 U.S.C. § 8101 et seq. 
2

On appeal appellant asserts that he was not at fault in the creation of the overpayment 

because OWCP was informed of his retirement date. He further asserts that OWCP did not 

properly compensate him for a November 1, 2016 schedule award. 

FACTUAL HISTORY

On May 15, 2015 appellant, then a 54-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on May 9, 2015 he injured his left shoulder while transporting food 

for the employing establishment’s annual food drive. OWCP accepted left shoulder rotator cuff 

tear on December 15, 2015.

On March 9, 2016 Dr. John A. Meaney, a Board-certified orthopedic surgeon, performed 

left shoulder rotator cuff repair and acromioplasty. Appellant stopped work that day and began 

filing Form CA-7, claims for compensation.2 The record indicates that OWCP electronically 

paid appellant wage-loss compensation from March 9 through August 5, 2016.3 Appellant 

retired on July 31, 2016.

On September 2, 2016 appellant filed a schedule award claim (Form CA-7). He 

submitted an August 25, 2016 report in which Dr. Meaney advised that appellant had six percent 

permanent left upper extremity impairment. An OWCP medical adviser reviewed the medical 

record, including Dr. Meaney’s report. The medical adviser indicated that appellant had 11 

percent permanent left upper extremity impairment. By decision dated November 1, 2016,

OWCP granted appellant a schedule award for 11 percent permanent left arm impairment. 

On December 25, 2016 appellant elected OPM retirement benefits, effective 

August 1, 2016. In correspondence dated February 9 and March 30, 2017, OPM notified OWCP 

that appellant began receiving retirement payments effective August 1, 2016. On April 13, 2017 

OWCP informed OPM that an overpayment had been identified, and that it would issue a 

preliminary overpayment determination.

On April 19, 2017 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $513.29 had been created for the period August 1 to 5, 2016. It

explained that the overpayment occurred because appellant received both FECA benefits and

OPM retirement benefits during this period. Appellant was found at fault because he was aware 

or should have reasonably been aware that he was not entitled to FECA compensation on the 

date of his election of OPM retirement benefits. OWCP provided an overpayment action request 

and overpayment recovery questionnaire (OWCP-20). Appellant was given 30 days to respond. 

The record contains an overpayment computer worksheet showing appellant’s wage-loss 

compensation for this period.

 

2 The CA-7 forms asked that appellant indicate whether he had “applied for or received payment under any 

Federal Retirement or Disability law.” Appellant checked the box marked “no” with respect to his claim for wage 

loss for the period July 23 to August 5, 2016.

3 Appellant submitted electronic deposit information on May 4, 2016. He, who had no dependents, was 

compensated at the basic, two thirds, compensation rate, based on a weekly salary of $1,151.13.
3

In a response received by OWCP on May 2, 2017 appellant requested a review of the 

written record. He contested the fault finding, maintaining that OWCP had been notified of the 

date of his retirement and failed to properly end his FECA compensation at that time. Appellant 

also maintained that the amount of his schedule award was incorrect. He submitted one page of 

an overpayment recovery questionnaire, and OWCP’s medical adviser’s October 28, 2016 report.

By decision dated May 24, 2017, OWCP finalized the preliminary overpayment 

determination, finding that appellant was at fault in the receipt of an overpayment of 

compensation in the amount of $513.29 and, thus, he was not entitled to waiver of recovery of 

the overpayment. Repayment was requested in full.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 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.4 Section 8116(a) states that while an employee is receiving workers’

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being 

compensated for under FECA.5 Section 10.421(a) of OWCP’s implementing regulations 

provides that a beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity.6 The beneficiary must elect the benefit that he or she wishes to 

receive.7 OWCP procedures also explain that the employee must make an election between 

FECA benefits and OPM benefits. The employee has the right to elect the monetary benefit 

which is the more advantageous. This policy also applies to reemployed annuitants.8

ANALYSIS -- ISSUE 1

A review of the record indicates that appellant’s OPM retirement annuity began on 

August 1, 2016. He also received FECA wage-loss compensation of $513.29 for the period 

August 1 through 5, 2016. As a beneficiary may not receive wage-loss compensation 

concurrently with a federal retirement or survivor annuity,9an overpayment of compensation 

was created.10 The clear language of section 8116(a) of FECA, section 10.421(a) of OWCP’s 

 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(a).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also 

R.S., Docket No. 11-428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994).

9

Id.

10 See Franklin L. Bryan, 56 ECAB 310 (2005).
4

implementing regulations, and OWCP procedures prohibits the receipt of FECA wage-loss 

benefits and a federal annuity.11

As appellant received $513.29 in FECA benefits while concurrently receiving OPM 

retirement benefits, the Board finds that an overpayment of compensation in that amount was 

created.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “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.”

12

Section 10.433(a) of OWCP’s regulations provides that OWCP:

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events which may 

affect entitlement to or the amount of benefits.... A recipient who has done any of 

the following will be found to be at fault in creating an overpayment: (1) Made 

an incorrect statement as to a material fact which he or she knew or should have 

known to be incorrect; or (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. (This provision applies only to the 

overpaid individual).”

13

To determine whether an individual was at fault with respect to the creation of an 

overpayment, OWCP examines the circumstances surrounding the overpayment. The degree of 

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

to realize that he or she is being overpaid.14

ANALYSIS -- ISSUE 2

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

compensation because he accepted a payment he knew or should have known was incorrect. The 

Board notes that when an overpayment is created because a claimant receives both FECA 

compensation and OPM retirement benefits, in order to completely analyze the fault issue, 

 

11 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual, supra note 8.

12 Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

13 20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

14 20 C.F.R. 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).
5

OWCP must properly consider the first dual payment. In the case at hand, appellant received his 

FECA compensation by electronic deposit. OPM acknowledged that appellant began receiving 

retirement benefits on August 1, 2016. A computer print-out in the record indicates that a FECA 

compensation payment was keyed on August 11, 2016, to cover the period July 23 through 

August 5, 2016. This was electronically deposited to appellant’s bank account. The question is 

whether appellant accepted a payment he knew or should have known was incorrect at the time 

of this deposit, part of which constituted the $513.29 overpayment of compensation found in this 

case.

The Board finds that appellant was not at fault regarding the August 11, 2016 direct 

deposit of FECA compensation which covered the period July 23 through August 5, 2016, thus 

including the entire period of dual benefit, August 1 through 5, 2016, the basis for the $513.29 

overpayment. While appellant accepted the overpayment by gaining control of the funds 

deposited into his account pursuant to his authorization, he did not know that he would receive 

an incorrect payment on that day. Unlike the situation in which a claimant receives a physical 

check and is aware of the amount of the payment before depositing it into his account, appellant 

was not on notice of the amount of the payment until after it was deposited electronically into his 

account.15 OWCP has not presented sufficient evidence to establish that appellant accepted a 

payment at the time of deposit which he knew or should have known to be incorrect.16

The Board, therefore, finds that appellant was not at fault in accepting the August 11, 

2016 payment, as he was not in a position to be aware that this payment was incorrect. As this 

was the only deposit of FECA compensation at issue in the creation of the $513.29 overpayment, 

which covered the period August 1 through 5, 2016, the Board finds appellant not at fault in its 

creation.17 Therefore, following return of the case record to OWCP, it should properly consider 

the issue of waiver of recovery of the $513.29 overpayment of compensation.

As to appellant’s assertion on appeal regarding the November 1, 2016 schedule award 

decision, for final adverse OWCP decisions issued on or after November 19, 2008, the Board’s 

review authority is limited to appeals which are filed within 180 days from the date of issuance 

of OWCP’s decision.18 The 180th day following November 1, 2016 was April 30, 2017. As this 

fell on a Sunday, the appeal would have been due the following business day, which was 

Monday, May 1, 2017.19 As appellant did not file an application for review with the Board until 

 

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

16 Id.

17 See M.O., Docket No. 14-1133 (issued September 22, 2014).

18 5 U.S.C. § 8149; 20 C.F.R. § 501.3(e).

19 20 C.F.R. § 501.3(f)(2).
6

June 12, 2017, more than 180 days after the November 1, 2016 OWCP decision, the Board is 

without jurisdiction to review the merits of that schedule award decision.20

CONCLUSION

The Board finds that appellant received a $513.29 overpayment of compensation for the 

period August 1 through 5, 2016. The Board further finds that appellant was not at fault in the 

creation of the overpayment. The case is, therefore, remanded to OWCP to determine whether 

waiver of the recovery of the overpayment is warranted.

ORDER

IT IS HEREBY ORDERED THAT the May 24, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is 

remanded to OWCP for proceedings consistent with this opinion of the Board.

Issued: October 27, 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

 

20 The Board notes that even had the date of postmark, June 6, 2017, been utilized as the date of appeal, the appeal 

would still be untimely. Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting 

in permanent impairment or increased impairment.