United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer

__________________________________________

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Docket No. 17-1416

Issued: December 5, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 13, 2017 appellant filed a timely appeal from an April 28, 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 found that appellant received an 

overpayment of compensation in the amount of $1,055.48 for the period of October 3 through 

15, 2016; and (2) whether appellant was at fault in the creation of the $1,055.48 overpayment 

and, therefore, ineligible for waiver of recovery of the overpayment.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On March 6, 2015 appellant, then a 52-year-old motor vehicle operator (MVO) driver, 

filed a traumatic injury claim (Form CA-1) alleging that on that date he sustained right leg, neck, 

and back injuries when his vehicle was rear ended by another vehicle. By decision dated 

April 22, 2015, OWCP accepted the claim for lumbar sprain and neck sprain. It later expanded

acceptance of the claim to include sprain of right shoulder and upper arm, right shoulder rotator 

cuff tear, cervical disc disorder with myelopathy, right shoulder bicipital tendinitis, and right 

shoulder impingement syndrome. Appellant stopped work and first sought medical treatment on 

the date of injury. He received continuation of pay from March 7 through April 20, 2015.

Appellant filed claims for compensation (Form CA-7) for leave without pay (LWOP) 

beginning April 21, 2015 and continuing. OWCP paid him compensation for temporary total 

disability by direct deposit on the supplemental rolls as of April 21, 2015 and paid wage-loss 

compensation and medical benefits on the periodic rolls as of June 28, 2016.2

In a September 16, 2016 medical report, Dr. Ryan M. Siwiec, appellant’s treating 

physician, reported that appellant could return to full-duty work with no restrictions beginning

October 3, 2016.

In an October 18, 2016 CA-110 telephone memorandum, the employing establishment 

notified OWCP that appellant had not returned to work and had been on sick leave since 

October 3, 2016 because of his son’s medical condition. The employing establishment explained 

that appellant had submitted paperwork under the Family and Medical Leave Act (FMLA). It 

noted that he continued to remain off work under FMLA, had been getting paid sick leave for all 

scheduled days since October 3, 2016, and that he knew that he was no longer entitled to receive 

workers’ compensation.3

A payroll computer printout documented that appellant received wage-loss compensation 

from September 18 through October 15, 2016. 

By letter dated December 15, 2016, OWCP made a preliminary determination that 

appellant received an overpayment of compensation in the amount of $1,055.48 from October 3 

through 15, 2016 because he was paid by the employing establishment for sick leave while also

receiving FECA compensation for the same period. It noted that he received $1,055.48 in 

compensation for total disability from October 3 through 15, 2016, which he was not entitled to 

 

2 On April 25, 2015 appellant elected to receive his compensation benefits by direct deposit. By letter dated 

May 27, 2015, OWCP advised appellant that his payment for wage-loss compensation had been approved for the 

period April 21 through May 15, 2015. OWCP instructed, “If you return to work (or returned to work) during this 

period, it is your responsibility to notify this office immediately. Any payment made by the Division of Federal 

Employees’ Compensation (DFEC) during a period of work or leave will be considered an overpayment subject to 

recovery.”

3 On November 9, 2016 OWCP notified appellant of a proposal to terminate his wage-loss compensation benefits 

as the weight of the medical evidence established that he was no longer disabled from work as a result of the 

March 6, 2015 work injury. It did not propose to terminate his medical benefits, which would remain open if 

treatment was still needed for his accepted conditions.
3

as the employing establishment began paying him sick leave on October 3, 2016. OWCP further 

found that he was at fault in creating the overpayment because he accepted payments that he 

knew or reasonably should have known that he was not entitled to receive. A manual adjustment 

form and Employment Standards Administration worksheet noted that appellant was on the 

periodic rolls with a 28-day net compensation of $2,273.36 for the period September 18 through 

October 15, 2016. However, appellant was only entitled to compensation from September 18 

through October 2, 2016 in the net amount of $1,217.88. Taking the 28-day $2,273.36 net 

compensation and subtracting from it the $1,217.88 he should have received during that period 

resulted in a $1,055.48 overpayment for the 13 days of compensation paid from October 3 

through 15, 2016. OWCP informed him of his review rights and instructed him to complete an 

enclosed overpayment recovery questionnaire form (OWCP-20) and submit supporting 

documentation.

On December 22, 2016 appellant submitted an overpayment action request contesting the 

overpayment and finding of fault and requested that the district Office make a decision based on 

review of the written evidence. He reported that he called his supervisor and requested sick 

leave because his son was ill. Appellant argued that a case worker was going to handle the 

situation so that he did not need to call the Department of Labor (DOL).

On January 8, 2017 appellant submitted an overpayment recovery questionnaire Form 

OWCP-20). He listed monthly income of $3,483.00, monthly expenses of $3,786.00, and total 

funds in the amount of $155,312.50. Appellant explained that he did not know that he was 

overpaid because he went on sick leave on October 3, 2016 due to his son’s illness. He argued 

that he did nothing wrong as he notified his supervisor who changed his status to sick leave. 

Appellant stated that his son passed away from cancer on November 14, 2016 and he had 

numerous medical bills to pay as a result of his son’s illness.

By decision dated April 28, 2017, OWCP finalized the preliminary determination finding 

that appellant was overpaid in the amount of $1,055.48 from October 3 through 15, 2016 because 

he received sick leave while also receiving disability compensation. It found that appellant was 

at fault in the creation of the overpayment and thus, not entitled to waiver of recovery of the 

overpayment. Recovery was directed by submitting a check for the full amount of the 

overpayment.

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.4

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 

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

limited circumstances.5 The Board has determined that if an employee receives sick leave from 

 

4

5 U.S.C. § 8102. 

5

Id. at § 8116(a).
4

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

overpayment.6

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation in the amount 

of $1,055.48 from October 3 through 15, 2016 because he received sick leave while also 

receiving disability compensation.7 

Appellant was not entitled to receive wage-loss compensation under FECA as he was

receiving sick leave from the employing establishment.8 The record establishes that appellant 

began using and receiving sick leave from the employing establishment on October 3, 2016. 

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

October 3 through 15, 2016 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, it explained that appellant received net compensation in the amount of $2,273.36 

for the 28-day period from September 18 through October 15, 2016. However, appellant was 

only entitled to compensation from September 18 through October 2, 2016 in the amount of 

$1,217.88. Taking the difference of the 28-day $2,273.36 compensation received from the 

$1,217.88 he should have received resulted in a $1,055.48 overpayment for the 13 days of

compensation paid from October 3 through 15, 2016. 

As OWCP explained how the overpayment occurred, and provided this to appellant with 

the preliminary notice of overpayment, there is no evidence that the overpayment did not occur 

as found by OWCP.9 Appellant did not dispute the calculation or amount of the overpayment. 

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

compensation in the amount of $1,055.48 from October 3 through 15, 2016.

10

 

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA11 provides that an overpayment of 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 Thus, OWCP may not waive the overpayment of compensation 

 

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

7

T.R., Docket No. 15-1374 (issued September 16, 2016).

8

Id.

9

T.B., Docket No. 15-1871 (issued January 13, 2016).

10 R.W., Docket No. 13-1108 (issued September 10, 2013).

11 5 U.S.C. § 8129(b). 

12 Michael H. Wacks, 45 ECAB 791, 795 (1994). 
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unless appellant was without fault.13 Adjustment or recovery must, therefore, be made when an 

incorrect payment has been made to an individual who is with fault.14

On the issue of fault, section 10.433 of OWCP’s regulations 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.”

15

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s 

regulations provide that whether or not OWCP determines that an individual was at fault with 

respect to the creation of an overpayment depends on 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.16

ANALYSIS -- ISSUE 2

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

accepted payments that he knew or reasonably should have known to be incorrect. The Board 

finds, however, that OWCP failed to establish that, at the time appellant accepted the initial 

payment of compensation, he knew or should have known the payments were incorrect.17

In cases where a claimant receives compensation through direct deposit, the Board has 

held that OWCP must establish that at the time the claimant received the direct deposit in 

question that he knew or should have known that the payment was incorrect.18 The Board has 

held that an employee who receives payments from OWCP in the form of a direct deposit may 

not be at fault for the first incorrect deposit into his account since the acceptance of the 

overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.19 

Because fault is defined by what the claimant knew or reasonably should have known at the time 

of acceptance, one of the consequences of electronic fund transfers is that the claimant lacks the 

requisite knowledge at the time of the first incorrect payment.

20

 Whether or not OWCP 

 

13 Norman F. Bligh, 41 ECAB 230 (1989). 

14 Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994). 

15 20 C.F.R. § 10.433(a). 

16 Id. at § 10.433(b).

17 J.S., Docket No. 12-1707 (issued June 10, 2013).

18 See Claude T. Green, 42 ECAB 174, 278 (1990).

19 See Tammy Craven, 57 ECAB 589 (2006); see also George A. Hirsch, 47 ECAB 520 (1996). 

20 Id.
6

determines that an individual is at fault with respect to the creation of an overpayment depends 

on the circumstances surrounding the overpayment.21 It is inappropriate, however, to make a 

finding that a claimant has accepted an overpayment via direct deposit until such time as a 

reasonable person would have been aware that this overpayment had occurred. This awareness 

could be established either through documentation such as a bank statement or notification from 

OWCP or where a reasonable period of time has passed during which a claimant could have 

reviewed independent confirmation of the incorrect payment.22

Herein, appellant received one payment electronically for the period September 18 

through October 15, 2016. Although it was deposited into his account, OWCP has not shown 

that he knew or reasonably should have known at the time of the deposit that the payment was 

incorrect. It has not presented sufficient evidence to establish that appellant accepted a payment 

which he knew or reasonably should have known to be incorrect.23 Appellant had no reason to 

suspect at the time of the October 15, 2016 deposit that OWCP had issued an incorrect payment 

since this was the first incorrect payment made. Thus, the Board finds that appellant was not at 

fault in either creating or accepting the overpayment for the period October 3 through 15, 2016.

24

A finding of no fault, however, does not mean that the claimant may keep the money, 

only that OWCP must consider eligibility for waiver of recovery for this period of overpayment 

and the case must be remanded for it to determine whether appellant is entitled to such a waiver 

for this period. After such further development as OWCP may find necessary, it should issue an 

appropriate decision on the issue of whether the recovery of the overpayment should be waived 

for the relevant portion of the October 15, 2016 direct deposit.

CONCLUSION

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

of compensation in the amount of $1,055.48 for the period October 3 through 15, 2016. The 

Board further finds that OWCP improperly found him at fault in the creation of the overpayment. 

The April 28, 2017 decision is set aside in part and remanded to OWCP regarding the issue of 

waiver of recovery of the overpayment.

 

21 Id.; see also K.D., Docket No. 13-0451 (issued April 12, 2013).

22 See K.H., Docket No. 06-0191 (issued October 30, 2006).

23 See also C.K., Docket No. 12-0746 (issued May 1, 2012).

24 V.A., Docket No. 12-0637 (issued August 27, 2012).
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ORDER

IT IS HEREBY ORDERED THAT the April 28, 2017 decision of the Office of 

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

for further action consistent with this decision of the Board.

Issued: December 5, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board