United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Sterling Heights, MI, Employer

__________________________________________

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Docket No. 17-0260

Issued: December 28, 2017

Appearances: Case Submitted on the Record

Ronald W. Adams, Jr., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 15, 2016 appellant, through her representative, filed a timely appeal from a

June 16, 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 this case.

ISSUES

The issues are: (1) whether appellant received a $18,871.08 overpayment of 

compensation for the period January 1, 2012 through March 7, 2015; (2) whether appellant was 

 

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

at fault in the creation of the $18,871.08 overpayment and, therefore, ineligible for waiver of 

recovery; and (3) whether OWCP properly found that the overpayment should be recovered by 

deducting $150.00 every 28 days from appellant’s continuing compensation payments. 

FACTUAL HISTORY

On June 20, 1989 appellant, then a 37-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she developed a bilateral arm and elbow injury as a result of her 

repetitive employment duties. OWCP accepted the claim for bilateral carpal tunnel syndrome, 

bilateral cubital tunnel syndrome, bilateral epicondylitis, and bilateral de Quervains

tenosynovitis. Appellant underwent surgery in August and November 1990. She was off work 

intermittently following her injury and received wage-loss compensation. On September 5, 1995 

appellant returned to work in a limited-duty position. On November 10, 2008 she stopped work 

due to withdrawal of her limited-duty assignment. Appellant received wage-loss compensation 

on the supplemental rolls from November 10, 2008 through June 5, 2010. On June 6, 2010 she

began receiving wage-loss and medical benefit compensation on the periodic rolls.

By letter dated June 9, 2010, OWCP advised appellant that she had been placed on 

periodic rolls beginning June 6, 2010 and outlined her entitlement to compensation benefits and 

her responsibility to return to work in connection with the accepted employment injury. 

Appellant’s weekly pay rate was calculated at the 75 percent augmented rate, amounting to

$985.62. OWCP explained to her that she should be aware that “payment of compensation will 

be terminated without such notice whenever this office is notified that you have earnings equal to 

or higher than the wages being paid for the job you held when injured.” Its letter further

provided that in order to avoid an overpayment of compensation, “NOTIFY THIS OFFICE 

IMMEDIATELY WHEN YOU RETURN TO WORK. Each payment made through [OWCP’s]

automated system will include the period for which payment is made. If you have worked for 

any portion of this period, you must return the check to this office. Otherwise, an overpayment 

of compensation may result.” 

On June 15, 2010 appellant elected to receive her compensation benefits by direct 

deposit. 

By letter dated November 5, 2010, OWCP requested information from appellant 

regarding her wages and compensation for the prior 15-month period and provided a Form CA1032 for completion. On November 12, 2010 appellant completed the form stating that she did 

not work for any employing establishment during the past 15 months. 

By letter dated March 25, 2011, appellant noted that she was currently receiving 75 

percent of her wages and asked whether she could earn more wages from part-time employment. 

She stated that it was her understanding that she could earn the remaining 25 percent of her lost

wages and not jeopardize her workers’ compensation as long as the work performed was not in 

violation of her current physical restrictions. 

By letter dated April 6, 2011, OWCP responded to appellant’s inquiry writing, 

“[Appellant] additionally asked if [she] could perform part-time employment while collecting 

workers’ compensation benefits. If you are able to work you are encouraged to do so. If you 
3

return to work, whether it be volunteer or paid, you will need to report your earnings on the 

annual CA-1032 forms so that we can report your earnings to the Social Security Administration. 

Working in any capacity could affect your workers’ compensation payments.”

On December 9, 2011 appellant notified OWCP that she was training with West Noble 

School Corporation to be a substitute school bus driver. She reported that, on the days that she 

worked, she would be driving approximately three hours that day. Appellant further reported 

that she would begin earning income in 2012. She stated that it was her understanding that since 

she was receiving 75 percent disability compensation, she was permitted to earn up to the 

remaining 25 percent of lost compensation. Appellant requested that OWCP send her 

verification of the gross pay of a city letter carrier so that she could calculate what the allowable 

25 percent income. 

In a January 6, 2012 CA-110 telephone memorandum, the claims examiner reported that 

she attempted to call appellant and left a message to discuss her December 9, 2011 letter, as 

more information was needed since a return to work would affect her wage-loss compensation 

benefits. 

By letter dated November 5, 2012, OWCP requested information from appellant 

regarding her wages and compensation for the prior 15-month period and provided a Form CA1032 for completion. On November 12, 2012 appellant completed the form and indicated that 

she had been working as a substitute bus driver in the private sector beginning in January 2012.3 

By letter dated November 12, 2012, appellant notified OWCP that she had been working 

as a substitute bus driver part time since January 2012. She submitted pay stubs of her earnings 

from October 22 to November 4, 2012. 

In a December 13, 2012 CA-110 telephone memorandum, OWCP’s claims examiner 

notified appellant that, while she was allowed to earn an income, OWCP would have to offset 

that amount from her compensation benefits. 

In a December 30, 2014 CA-110 telephone memorandum, OWCP’s claims examiner 

notified appellant that her compensation should be based on a loss of wage-earning capacity 

(LWEC), based on her wages earned in her new employment. 

On March 8, 2015 OWCP began offsetting appellant’s compensation based on the wages

she earned in her new employment. By letter dated March 20, 2015, it advised her that she was 

taken off the periodic rolls effective March 7, 2015 and would be issued wage-loss compensation

reduced by her actual earnings. 

By letter dated July 2, 2015, OWCP made a preliminary determination that appellant 

received an overpayment of compensation in the amount of $18,871.08 from January 1, 2012 

through March 7, 2015, because she was in receipt of total disability compensation benefits after 

she returned to part-time work in the private sector and she was at fault because she accepted 

 

3 The record reflects that appellant submitted subsequent EN1032 forms dated November 27, 2013 and 

December 1, 2014 disclosing her part-time employment as a substitute bus driver with accompanying pay stubs. 
4

payments she knew or should have reasonably known were incorrect. It informed her of her 

review rights and instructed her to complete an enclosed overpayment recovery questionnaire 

(Form OWCP-20) and submit supporting documentation within 30 days. 

An accompanying OWCP memorandum determined that appellant was paid total 

disability compensation benefits in the amount of $135,021.03 for the period January 2, 2012 

through March 7, 2015. Utilizing the Shadrick Formula, it determined that she was only due 

compensation based on her ability to earn an average weekly salary of $163.63. Thus, the total 

compensation due to appellant for the time period of January 2, 2012 to March 7, 2015 amounted 

to $116,149.95. Taking the $135,021.03 paid and subtracting the $116,149.95 of compensation 

owed for that period resulted in an overpayment of $18,871.08. A Shadrick formula

documentation memorandum and pay rolls computer printouts were provided showing the 

overpayment calculations. 

On July 21, 2015 appellant, through her representative, requested a prerecoupment 

hearing before an OWCP hearing representative. She contested the amount of overpayment, 

finding of fault, and requested waiver of recovery of the overpayment as it would cause her 

financial hardship. Appellant’s representative explained that appellant was without fault in the 

creation of the overpayment because she had notified OWCP in December 2011 that she would 

be working as a substitute bus driver. Appellant also properly disclosed that information on the 

EN1032 forms she submitted to OWCP. He referenced OWCP’s June 9, 2010 letter, which 

outlined her compensation on the periodic rolls and asserted: “[Appellant] should be aware that 

payment of compensation will be terminated without such notice whenever this office is notified 

that you have earnings equal to or higher than the wages being paid for the job [she] held when 

injured.” He explained that appellant believed that, because she was only receiving 75 percent of 

her compensation benefits, she could work in the private sector earning the remaining 25 percent 

and an overpayment of compensation would not occur unless she earned more than 100 percent 

of her income. Appellant’s representative argued that she had requested clarification from 

OWCP multiple times regarding her wage-loss compensation when returning to part-time work,

yet OWCP failed to provide her that information. He further argued that the amount of 

overpayment was incorrect as the payments received for the period January 1, 2012 through 

March 7, 2015 were less than the $135,021.04 as alleged by OWCP. Appellant’s representative 

requested that the debt be waived as repayment would cause appellant great financial hardship. 

In support of her appeal, appellant submitted documents indicating when she had 

contacted OWCP regarding her employment as a substitute bus driver, as well as requests for 

clarification from OWCP, copies of previously submitted EN1032 forms, and supplemental rolls

payment printouts for compensation received for the period of the overpayment claimed. 

In a completed Form OWCP-20 dated July 16, 2015, appellant reported a monthly 

income of $4,201.65 with $1,320.00 in her checking account. She noted her husband as her 

dependent, listed her monthly expenses, and argued that repayment of the debt would cause her 

financial hardship. Appellant reported that she properly notified OWCP about her job as a 

substitute bus driver. She argued that she sought clarification from OWCP numerous times

regarding whether her employment as a substitute bus driver would affect her wage-loss

compensation, and she reiterated that she believed that she could earn wages as long as she was

not making more than 100 percent of her income as a letter carrier.
5

A hearing was held on March 17, 2016 where appellant and her representative contested 

the amount of overpayment and finding of fault, and requested that recovery of the overpayment 

be waived due to financial hardship. She again reiterated that she never made any false 

statements to OWCP and that the overpayment occurred through no fault of her own. Appellant

again explained her belief that she could earn wages equaling 25 percent of her lost income, 

without the creation of an overpayment. Appellant’s representative argued that appellant only 

had an 11th grade education and could not be expected to understand that she was being overpaid. 

Appellant reported having $101,652.00 in debt and that repayment should be waived as it would 

cause her a great financial hardship to repay the debt. 

On April 12, 2016 appellant, through her representative, submitted a post hearing brief in 

support of her claim. Appellant provided bills and listed her monthly expenses amounting to

$4,497.00, which included $758.00 for food, $920.00 mortgage, $541.00 revolving credit, 

$253.00 telephone, $185.00 television and internet Verizon Wireless, $210.00 gas and electric, 

$317.00 health insurance, $414.00 out of pocket medical costs, $105.00 Medicare Part B, 

$243.00 life insurance, $123.00 additional life insurance, $32.00 insurance, $78.00 automobile

insurance, $243.00 fuel and maintenance, $25.00 charitable donation to church, and $50.00

miscellaneous expenses. 

By decision dated June 16, 2016, OWCP finalized the preliminary overpayment 

determination, finding that appellant was overpaid in the amount of $18,871.08 from January 1, 

2012 through March 7, 2015, because she was in receipt of total disability compensation benefits 

after she returned to part-time work in the private sector. It found that she was at fault in the 

creation of the overpayment because she accepted payments that she knew or should have known 

to be incorrect and thus, she was not entitled to waiver of recovery of the overpayment. OWCP

determined that the overpayment would be recovered by deduction of $150.00 from appellant’s 

continuing compensation payments every 28 days.

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 

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

limited circumstances.5 OWCP’s regulations state in pertinent part: Compensation for wageloss due to disability is available only for any periods during which an employee’s work-related 

medical condition prevents him or her from earning the wages earned before the work-related 

injury.6 A claimant is not entitled to receive temporary total disability and actual earnings for the 

 

4

5 U.S.C. § 8102. 

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500.
6

same period. OWCP’s procedures provide that an overpayment in compensation is created when 

a claimant returns to work, but continues to receive wage-loss compensation.7

Section 8129(a) of FECA provides that when an overpayment has been made to an 

individual 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 the individual is 

entitled.8

If the claimant is entitled to compensation for partial wage loss after return to work, the 

claims examiner should compute entitlement using the Shadrick formula and authorize 

compensation on a 28-day payment cycle. The claims examiner should make every effort to 

avoid interruption of income to the claimant.9 Earnings of a sporadic or intermittent nature 

which do not fairly and reasonably represent the claimant’s LWEC should be deducted from 

continuing compensation payments using the Shadrick formula (past earnings must be declared 

an overpayment). Sporadic or intermittent earnings should not be used as the basis for an LWEC 

determination, but they should be used to help establish the kind of work the claimant can 

perform.10

ANALYSIS -- ISSUE 1

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

of $18,871.08 from January 1, 2012 through March 7, 2015, because she continued to receive 

total disability compensation after her return to part-time work. OWCP accepted appellant’s 

claim and paid wage-loss compensation, placing her on periodic rolls beginning June 6, 2010. 

The record indicates that, beginning January 1, 2012, appellant returned to part-time work in the 

private sector as a substitute school bus driver. However, OWCP subsequently paid her wageloss compensation for total disability from January 1, 2012 through March 7, 2015, resulting in 

an overpayment of compensation.11 Accordingly, the Board finds that appellant received an 

overpayment of compensation.12

During the period January 1, 2012 to March 8, 2015, appellant received wages from parttime employment in the amount of $27,185.27. As previously noted, a claimant is not entitled to 

receive temporary total disability benefits and actual earnings for the same time period.13 

 

7 B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

8

5 U.S.C. § 8129(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Earnings, Chapter 2.815.3(b) (June 2013). See Albert C. Shadrick, 5 ECAB 376 (1953).

10 Id. at Chapter 2.815.4(b).

11 See J.W., Docket No. 15-1163 (issued January 13, 2016).

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

13 L.S., 59 ECAB 350, 352-53 (2008).
7

Utilizing the Shadrick formula,14 OWCP took the $27,185.27 total earnings and divided it by the 

1163 calendar days for this time period to calculate her daily compensation rate. It multiplied 

the total by seven, resulting in $163.63 earned weekly in appellant’s part-time employment as a 

substitute bus driver. OWCP reported that, had proper adjustments been made to her disability 

compensation to reflect her part-time employment, she would have received $116,149.95 for this 

time period. However, appellant received compensation for this period in the amount of 

$135,021.03. The difference between these two amounts, $18,871.08, is the amount of the 

overpayment, as calculated by OWCP.15 Accordingly, the Board finds that OWCP properly 

determined that appellant received an overpayment of compensation in the amount of $18,871.08 

from January 1, 2012 through March 7, 2015 as she had earnings from part-time employment 

and was not entitled to compensation for total disability.16

On appeal appellant’s representative argues that the calculations showing the amount of 

overpayment were not attached with the preliminary overpayment determination and he 

references a July 22, 2015 letter from OWCP apologizing for not sending the calculations with 

the decision. The Board notes that the record reflects that the Shadrick documentation 

memorandum and supplemental pay rolls printouts were sent with the July 2, 2015 preliminary

overpayment determination. By letter dated July 19, 2015, appellant informed OWCP that the

pages reflecting payment were not included with the July 2, 2015 preliminary determination. By 

letter dated July 22, 2015, OWCP responded to her apologizing for the oversight and resubmitted 

the worksheets calculating her overpayment. The Board notes that appellant’s representative has 

not established that OWCP failed to provide appellant with the requisite documentation such that 

she was unable to dispute the fact and the amount of overpayment. 

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA17 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.18 Thus, OWCP may not waive the overpayment of compensation 

unless appellant was without fault.19 Adjustment or recovery must, therefore, be made when an 

incorrect payment has been made to an individual who is with fault.20

 

14 See Shadrick, supra note 9.

15 C.F., Docket No. 16-1718 (issued August 21, 2017).

16 V.G., Docket No. 07-0916 (issued November 15, 2007).

17 5 U.S.C. § 8129(b). 

18 Michael H. Wacks, 45 ECAB 791, 795 (1994). 

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

20 Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994). 
8

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.”

21

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.22

ANALYSIS -- ISSUE 2

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

she accepted payments that she knew or should have known to be incorrect. The Board finds, 

however, that she was without fault with regard to OWCP’s first direct deposit following her 

return to part-time work, but was at fault in creating the overpayment resulting from the 

subsequent deposits.

23

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

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

that he or she knew or should have known that the payment was incorrect.24 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 or her account since the acceptance of the 

overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.25 

Because fault is defined by what the claimant knew or 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.26 Whether or not OWCP 

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

 

21 20 C.F.R. § 10.433(a). 

22 Id. at § 10.433(b).

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

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

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

26 Id.
9

on the circumstances surrounding the overpayment.27 It is not appropriate, 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.28

The record establishes that for the overpayment period, January 1, 2012 to March 7, 

2015, appellant received compensation by direct deposit payments every 28 days. She received a 

partial overpayment for the 28-day pay period of December 18, 2011 to January 14, 2012, having 

returned to part-time work beginning January 1, 2012. Following this initial overpayment, 

appellant was improperly paid wage-loss compensation for total disability without adjustment for 

actual wages earned from January 15, 2012 through March 7, 2015. The funds were directly 

deposited into her account and the remaining disbursements amounted to an overpayment. 

The Board finds that appellant was without fault for the initial direct deposit of the paid 

amount into her account for the January 1 to 14, 2012 overpayment period.29 Although she 

accepted the overpayment at the time it was deposited into her account, OWCP has not shown 

that she knew or should have known at the time of the deposit that the payment was incorrect.

30

 

Appellant had no reason to suspect at the time of the January 14, 2012 deposit that OWCP had 

issued an incorrect payment since this was the first incorrect payment made. Additionally, she

was entitled to some wage-loss compensation for total disability for the period December 18, 

2011 to January 14, 2012 and thus the circumstances surrounding the overpayment were more 

complex than usual.31 As such, the Board finds that appellant was not at fault in either creating 

or accepting the overpayment for the period of January 1 to 14, 2012.

32

 A finding of no fault 

does not mean, however, that appellant may keep the initial payment amount; only that OWCP 

must consider eligibility for waiver for this period, and the case must be remanded for OWCP to 

determine whether she is entitled to waiver of recovery for this portion of the overpayment.

The Board further finds that appellant was at fault in the creation of the overpayment 

resulting from the remaining direct deposits for the period January 15, 2012 to March 7, 2015.

33

 

In a June 6, 2010 letter, appellant was notified that, to avoid an overpayment of compensation, 

she must immediately notify OWCP of her return to work. She was required to return any check 

to OWCP which included a period during which she worked. Although OWCP may have been 

negligent in making incorrect payments, this does not excuse a claimant from accepting 

 

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

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

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

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

31 See W.B., Docket No. 09-1440 (issued April 12, 2010).

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

33 D.W., Docket No. 14-0229 (issued April 17, 2014).
10

payments she knew or should have known to be incorrect.34 In cases involving a series of 

incorrect payments, where the requisite knowledge is established by documentation from OWCP 

or simply with the passage of time and opportunity for discovery, the claimant will be at fault for 

accepting the payments subsequently deposited. By the time of the second payment dated 

February 11, 2012, appellant should have known that she was not entitled to the same amount of 

wage-loss compensation as she had received prior to her return to part-time work on 

January 1, 2012.

35

 After her receipt of the first direct deposit following her return to part-time 

work, she was on notice that OWCP was making payments to her in error and knew or should 

have known that she was not entitled to the benefit of the subsequent direct deposit. 

Despite OWCP’s explicit instructions regarding receipt of wage-loss compensation while 

working, appellant claimed she believed that she was entitled to the payments received from 

OWCP. She argued that, by letter dated March 25, 2011, she requested more information from 

OWCP as she thought she could earn the remaining 25 percent of her unpaid compensation. The 

Board notes that, by letter dated April 6, 2011, the claims examiner informed appellant that 

working in any capacity could affect her workers’ compensation payments.

Appellant also referenced OWCP’s June 9, 2010 letter, which provided notice that her 

compensation would be terminated if she had earnings equal to or higher than the wages being 

paid for the job she held when injured. As the letter noted that her wage-loss compensation 

amounted to 75 percent of her earnings, she thought that she could earn the remaining 25 percent 

without creating an overpayment.36 The Board notes that OWCP’s June 6, 2010 letter also 

explicitly stated that appellant was required to return any check to OWCP which included a 

period during which she worked because an overpayment could occur. As noted by appellant, 

OWCP informed her that an overpayment could occur. She was specifically instructed to return 

payment during any period worked so that OWCP could determine her LWEC.

Appellant further argued that she was not at fault because she notified the claims 

examiner in December 2011 that she was going to start part-time work and again notified OWCP 

about her return to part-time work in November 2011 when OWCP requested the information on 

the EN1032 form. She argued that she was confused by the process and attempted to contact the 

claims examiner regarding her part-time employment, but failed to receive an explanation. Each 

recipient of compensation benefits is responsible for taking all reasonable measures to ensure 

that payment appellant receives from OWCP is proper.37 The fact that OWCP may have been 

negligent in issuing the payments does not mitigate this finding.38 In light of OWCP’s clear 

mandate to provide notification of a return to work and to return any payment received, which 

included a period during which appellant worked, a reasonable person would have known that an 

 

34 See C.G., Docket No. 15-0701 (issued December 9, 2015).

35 Id.

36 Under section 8110 of FECA, an employee is entitled to compensation at the augmented rate of 75 percent of 

her weekly pay if she has one or more dependents. 5 U.S.C. § 8110.

37 K.M., Docket No. 16-0802 (issued November 23, 2016).

38 C.F., Docket No. 16-1718 (issued August 21, 2017).
11

overpayment had occurred.39 As appellant was at fault in creating the overpayment for the

period January 15, 2012 to March 7, 2015, she is not eligible for waiver of recovery with respect 

to the portion of the overpayment for this period.

40

Appellant has also not established that she was without fault in the overpayment because 

she only had an 11th grade education and could not understand that she was receiving an 

overpayment. There is no support to establish that she was of diminished mental capacity due to 

the extent of her education.

41

The Board finds that this case is not in posture for decision regarding the issue of waiver 

of the recovery of the overpayment for the period January 1 to 14, 2012. The Board will remand 

the case for OWCP to determine whether appellant is entitled to waiver of recovery of the

overpayment created for this period.42 The Board finds that OWCP properly determined that she

was at fault for the remaining period of overpayment, January 15, 2012 to March 7, 2015. As 

appellant was at fault under the third fault standard outlined above, recovery of the remaining

overpayment of compensation may not be waived.43

Finally, as appellant’s eligibility for waiver for a portion of the overpayment cannot yet 

be determined, the issue of recovery will not be considered in the present appeal. On remand, 

she will have an opportunity to submit and have OWCP consider relevant financial evidence on 

this issue. Following this and all other development deemed necessary, OWCP shall issue a de 

novo decision in the case.44

CONCLUSION

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

of compensation in the amount of $18,871.08 from January 1, 2012 through March 7, 2015. The 

Board further finds that she was without fault for the creation of the overpayment for the period 

January 1 to 14, 2012, and that she was at fault for the creation of the overpayment for the period

January 15, 2012 to March 7, 2015. 

 

39 Supra note 16. 

40 V.D., Docket No. 16-0578 (issued November 3, 2016).

41 J.C., Docket No. 16-1889 (issued May 17, 2017).

42 Supra note 33.

43 No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB 

264 (2007). 

44 P.L., Docket No. 16-0127 (issued May 3, 2016). 
12

ORDER

IT IS HEREBY ORDERED THAT the June 16, 2016 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 28, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board