United States Department of Labor

Employees’ Compensation Appeals Board

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R.O., Appellant

and

DEPARTMENT OF JUSTICE, LA TUNA 

FEDERAL CORRECTIONAL INSTITUTION, 

El Paso, TX, Employer

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Docket No. 17-0894

Issued: January 26, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 16, 2017 appellant filed a timely appeal from a September 23, 2016 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 to consider the merits of the case.

ISSUES

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

$4,837.77 for the period July 28 through September 19, 2015 as she continued to receive wageloss compensation after she returned to full-duty work; and (2) whether appellant was at fault in 

the creation of this overpayment such that it was not subject to waiver.

On appeal appellant contends that she notified OWCP of her return to work and that she 

was not at fault in the creation of the overpayment.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 29, 2012 appellant, then a 48-year-old unit secretary, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her right elbow on November 29, 2012 

opening the central file safe drawer. She continued to work without restrictions. On February 7, 

2013 OWCP accepted appellant’s claim for sprain of the right elbow, forearm, and radial 

collateral ligament. Appellant completed a direct deposit sign-up form on January 29, 2014. She

underwent a magnetic resonance imaging (MRI) scan on February 3, 2014 which demonstrated 

cubital tunnel syndrome. Appellant underwent lateral epicondylar debridement and ulnar nerve 

decompression at the right elbow on October 3, 2014. She stopped work on October 3, 2014 and 

OWCP placed her on the periodic rolls on January 26, 2015 retroactive to October 3, 2014.

On July 21, 2015 appellant’s physician Dr. Barry Cromer, a Board-certified orthopedic 

surgeon, opined that she was capable of performing her date-of-injury position.

Appellant filed a claim for compensation (Form CA-7) on September 9, 2015 requesting 

compensation for four hours leave without pay on September 8, 2015. She filed an additional 

Form CA-7 on September 10, 2015 requesting compensation for four hours of leave without pay 

on that date.

On September 17, 2015 appellant telephoned OWCP and stated that she had returned to 

full-time work on July 28, 2015 with no restrictions.

On November 5, 2015 OWCP issued a preliminary determination that appellant was 

overpaid in the amount of $8,365.06 for the period October 3, 2014 through July 27, 2015 as she 

was paid at the augmented rate, but had no dependent;2and for the period July 28 through 

September 19, 2015 as she had returned to work on July 28, 2015 and continued to receive wageloss compensation for total disability. It found that appellant was at fault in the creation of the 

overpayment. OWCP requested that appellant provide financial information including an 

overpayment recovery questionnaire (Form OWCP-20). It also provided appellant with her 

appeal rights and afforded her 30 days to respond.

OWCP noted that appellant received compensation for the period July 26 through 

September 19, 2015 in the amount of $5,154.42 by direct deposit, as she received two deposits of 

$2,577.21 each. Appellant returned to work on July 28, 2015 and received payment via direct 

deposit in the amount of $2,577.21 on August 22, 2015 for the period July 26 to August 22, 2015 

and in the amount of $2,577.21 on September 19, 2015 for the period August 23 through 

September 19, 2015. OWCP noted that appellant received payment for wage-loss compensation 

for 56 days, but was only entitled to wage-loss compensation for two days. It divided $2,577.21

by 28 days and determined that appellant was entitled to compensation for $92.04 for each of the 

two days or $184.08. Subtracting $184.08 from the total payment of $5,154.42, OWCP found 

that this resulted in an overpayment of $4,970.34. It also found that appellant was entitled to an 

 

2 The issue of the appropriate rate of compensation prior to July 28, 2015 is in an interlocutory status and not 

before the Board in this appeal. See 20 C.F.R. § 501.2(c)(2)
3

additional eight hours of compensation for four hours of wage-loss each on September 8 and 10, 

2015 or $132.573and used this sum to further reduce the overpayment to $4,837.77.

On November 10, 2015 appellant informed OWCP of her change of address.

In a letter postmarked December 5, 2015, but received by OWCP on December 10, 2015, 

appellant submitted financial information and requested a prerecoupment hearing with OWCP’s 

Branch of Hearings and Review on the issues of fault and waiver of the overpayment. She

disagreed with fact and amount of the overpayment, and requested waiver of the overpayment.

Appellant provided a completed overpayment recovery questionnaire (Form OWCP-20). She 

provided a benefits statement noting that she had already received a payment of $2,577.21, from 

July 26 through August 22, 2015. Appellant received a similar benefit statement regarding 

issuance of $2,577.21 on September 19, 2015. She provided her wage-loss compensation 

payment history which indicated that she received wage-loss compensation for the period July 26 

through August 22, 2015 via direct deposit on August 22, 2015. Appellant received wage-loss 

compensation from August 23 through September 19, 2015 through direct deposit on 

September 19, 2015. She received bank statements on July 31, 2015 and August 31, 2015.

Appellant submitted a copy of her most recent tax return.

On January 11, 2016 OWCP accepted the additional condition of lateral epicondylitis.

Appellant and her union representative appeared at the prerecoupment hearing on 

July 26, 2016. OWCP’s hearing representative explained how the overpayment in the amount of 

$4,837.77 was calculated for the period July 26 through August 22, 2015 including the offset of 

wage-loss compensation owed on September 8 and 10, 2015 due to doctors’ visits. Appellant 

testified that she received a check on July 25, 2015 which covered the period before she returned 

to work. She then received a deposit at the end of August and attempted to contact OWCP.

Following the prerecoupment hearing, appellant’s representative disagreed with the way

the hearing was conducted. Appellant also provided additional financial information including

her bank statement from July 12 through August 11, 2016. Appellant listed her monthly 

expenses in the amount of $3,429.31 and opined that her future rent would be $695.00.

By decision dated September 23, 2016, OWCP’s hearing representative found that 

appellant received an overpayment when she had returned to full-duty work on July 28, 2015, 

but continued to receive wage-loss compensation. She also found that appellant was at fault in 

creating the overpayment because she returned to work and continued to receive wage-loss 

compensation. OWCP’s hearing representative explained that appellant was aware of the 

August 22, 2015 overpayment as soon as she received her OWCP benefit statements and 

therefore was at fault such that the overpayment was not subject to waiver. The hearing 

representative determined, based on the financial information that appellant had provided, that 

repayment of $75.00 per month was reasonable.

 

3 OWCP based the amount due on four hours each day on September 8 and 10, 2015. It was also based on 

appellant’s gross, rather than net, compensation.
4

OWCP’s hearing representative remanded the case to OWCP for further development of 

the augmented compensation payment as it had not addressed whether or not appellant was at 

fault in the creation of this overpayment.4

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA5 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.6

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 

for limited circumstances.7 OWCP regulations provide that compensation for wage loss 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.8 An 

employee is not entitled to compensation for total disability after returning to full-time work.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has received an overpayment of compensation as she was 

paid total disability compensation for the period July 28 to September 19, 2015 after her return to 

work at the employing establishment effective July 28, 2015.

10

 However, the Board further finds 

that OWCP has not properly determined the amount of the overpayment.

OWCP determined that appellant received an overpayment of compensation in the 

amount of $4,970.34 for the period July 28 through September 29, 2015. However, it offset this 

amount with compensation that appellant was due for four hours of wage-loss compensation on 

September 8 and 10, 2015 in the amount which OWCP calculated as $132.5711 which reduced

 

4 As the overpayment issues based on augmented rate compensation are currently interlocutory in nature, the 

Board lacks jurisdiction to review this matter. See 20 C.F.R. § 501.2(c)(2) (providing that there will be no appeal 

with respect to any interlocutory matter decided (or not decided) during the pendency of a case). OWCP issued a 

preliminary determination on this issue on December 22, 2016, but there is no final decision in the record at the time 

of the March 16, 2017 appeal to the Board.

5 5 U.S.C. §§ 8101-8193, 8102.

6

Id.

7 5 U.S.C. § 8116(a)

8 20 C.F.R. § 10.500.

9 B.T., Docket No. 13-1619 (issued February 24, 2014).

10 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

11 OWCP based the amount due on for four hours each on September 8 and 10, 2015 on appellant’s gross rather 

than net compensation.
5

the asserted overpayment amount to $4,837.77. Although such an offset appears 

administratively straightforward, the Board has held that it may circumvent established legal 

procedures and protections if the claimant is entitled to consideration of waiver.12 Such offsets 

are not allowed, as they permit an unrestricted recovery of the offset portion of the overpayment 

without regard to the relevant factors set forth in 20 C.F.R. § 10.441(a),13 which denies 

administrative due process with respect to the amounts offset.14

The case will, therefore, be remanded for OWCP to properly calculate the entire amount 

of the overpayment of compensation and to consider waiver of the entire amount of the 

overpayment. After conducting such further development as is deemed necessary, OWCP shall 

issue a de novo decision.

CONCLUSION

The Board finds that appellant received an overpayment of compensation from July 28 to 

September 19, 2015 as she received compensation for total disability after she returned to work. 

However, the Board finds that the case is not in posture for determining the amount of 

overpayment.15

 

12 Michael A. Grossman, 51 ECAB 673, 678 (2000); T.W., Docket No. 09-2039 (issued April 6, 2010).

13 This section states that in collecting an overpayment of compensation OWCP shall decrease later payment of 

compensation by taking into account the probable extent of future payments, the rate of compensation, the financial 

circumstances of the individual and any other relevant factors, so as to minimize any hardship.

14 Diana L. Booth, 52 ECAB 370, 373 (2001) (finding that OWCP’s offset practice denied administrative due 

process rights with respect to the amount offset); Michael A. Grossman, supra note 12; B.T., Docket No. 13-1619 

(issued February 24, 2014).

15 As OWCP has not established the amount of overpayment, it is not necessary for the Board to address the 

issues of fault and waiver.
6

ORDER

IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed as to the fact of the overpayment. The decision is 

set aside as to the amount of the overpayment and remanded for further action consistent with 

this decision of the Board.16

Issued: January 26, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.